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Auckland’s Alcohol Retailers Face Restricted Trading Hours 

by Rachel Devine, Daniel Clay, Kathy Wilson

Published: April, 2015

Submission: July, 2015

 



Last Friday a summary was released of the recommendations of the Panel considering submissions on Auckland’s Local Alcohol Policy (LAP). The Council developed the LAP under the Sale and Supply of Alcohol Act 2012 (Act). Through LAPs, councils can restrict or extend premises’ trading hours, limit the location and number of licensed premises and recommend conditions on the issuing of licences. In this newsletter, we discuss the next steps, some of the key features of the recommendations and the legal principles that will apply to any appeals.


The recommendations will form a provisional LAP


After adopting a draft LAP and considering public submissions last year, a panel of councillors and policy staff last week made recommendations that will form the provisional LAP (PLAP). The PLAP will go to the Regional Strategy and Policy Committee in May for approval. The PLAP will be publicly available after that meeting, which we understand is on 13 May. After that, submitters on the draft LAP, or the Police or a Medical Officer of Health, can appeal the PLAP. Appeals are likely for Auckland Council’s PLAP and we discuss these further below.


Restricted trading hours and closedown periods near schools


The standout recommendations relate to off-licence trading hours. The Panel’s recommendations include:


  • A region-wide restriction on off-licence trading hours to 9am to 9pm, including supermarkets.
  • Allowing District Licensing Committees to include a condition in off-licences for premises near schools requiring that they close between 3pm and 4pm.

The summary of the Panel’s recommendations does not state what it meant by ‘near’ schools, but this recommendation would apply near both primary and secondary schools.


For on-licences, the Panel recommended:

  • For the CBD, keeping trading hours to the Act’s default 8am to 4am.
  • In other areas, restricting trading hours to 8am to 3am.

Further, the Panel rejected the inclusion of a ‘one-way door’ policy on the basis that it is not a proven tool.


Local Impact Reports will be required for certain applications


The Panel decided to rename the Environmental and Cumulative Impacts Assessment as the Local Impact Report (LIR). This tool relates to location and amount of off-licences. These reports will now cover any risks, and delicate or sensitive sites near the relevant premises. The draft LAP did not detail which premises this tool would apply to. However, the Panel specified that LIRs would apply to medium, high and very high risk premises. These categories reflect premises’ risk profiles under the Sale and Supply of Alcohol (Fees) Regulations 2013.


The Act’s object will govern any appeals against Auckland Council’s PLAP


As with PLAPs elsewhere in New Zealand, Auckland’s PLAP will likely face appeals. The only available ground of appeal is that the PLAP is unreasonable in light of the object of the Act. The Act’s object is that the sale, supply, and consumption of alcohol should be undertaken safely and responsibly, and the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.


The recent successful appeal against Wellington’s PLAP provides some insight into the issues that the Alcohol Regulatory and Licensing Authority (Authority) will consider in appeals against Auckland’s PLAP. The Authority will determine whether a ‘reasonable person’ would consider the PLAP unreasonable in light of the object of the Act. An element of the PLAP may be unreasonable in light of the object of the Act if it:


(a) constitutes a disproportionate or excessive response to perceived problems; 

(b) is partial or unequal in their operation between licence holders; 

(c) is manifestly unjust or discloses bad faith; 

(d) is an oppressive or gratuitous interference with the rights of those affected; or 

(e) is outside the powers of the empowering provision of the Act.


In that case, Wellington started preparing for a LAP before the Act commenced and several elements, including extended CBD on-licence hours of 7am to 5am, were found to be unreasonable in light of the object of the Act.


Because local issues are relevant to a PLAP, international or national evidence presented in appeals is unlikely to be helpful unless it links to what happens in the district. For this reason, the Authority in the Wellington case criticised certain evidence based on national and international academic research as being of little assistance.


Next steps


Auckland Council has reached the stage of forming its PLAP. After the Regional Strategy and Policy Committee approves the PLAP in May, there will be a period for appeals against the PLAP. We can envisage the principles that the Authority will use to consider appeals, but what happens in the appeals will be specific to the Auckland area.


If you need any further information or advice about LAPs or alcohol licensing in general, please contact any member of the Environment Team at Minter Ellison Rudd Watts.

 



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