A recent decision of the High Court clarifies there is no burden
on a licensee to prove their proposed licensed premise will not
materially reduce the good order and amenity of the location in
which it is to open, and that new evidence relating to an
applicant's suitability can be admitted on appeal (Re Venus
NZ Limited  NZHC 1377).
The case was on an appeal from the Alcohol Regulatory and
Licensing Authority's refusal to grant an off-licence for a new
bottlestore in Raglan. The application was opposed by the District
Licensing Committee, Medical Officer of Health, and 19 public
objectors. The Authority refused the application on the grounds of
lack of suitability of the applicant, and good order and amenity
concerns around the "proliferation" of the number of
The applicant appealed to the High Court. Unusually,
particularly given the number of objectors before the Authority, no
other party opposed the appeal.
On the good order and amenity issue, Heath J analysed the
Authority's reliance on its previous decision in Re Hari
Om  NZARLA PH 159. The Authority held in that decision
"there is an onus on applicants to satisfy the Licensing
Committee or Authority that the issue of a licence is unlikely to
reduce the good order and amenity of the locality to more than a
minor extent." This is a significant evidential burden
for licensees to carry – in effect to prove the existence of
a future negative possibility.
Heath J was critical of the Authority's decision in Re
Hari Om. The Authority interpreted, incorrectly, previous High
Court authority in support of the proposition that there is such an
onus on the applicant. Heath J's view was that previous High
Court decisions instead emphasised the need for the Authority
itself to consider cogent evidence when forming its opinion
regarding amenity and good order.
Heath J overturned this aspect of the Re Hari Om
decision and held that "to the extent that Re Hari Om held
that there was an onus on the applicant to demonstrate that there
would be no material reduction to the good order and amenity of the
location, I consider that it was wrongly decided. In my view, no
such onus exists." This is not to say the applicant does
not have to consider the effects of the proposed licence on good
order and amenity. Rather, the Authority (or any District Licensing
Committee) must consider all the evidence when forming its opinion
on whether there will be a reduction in the good order and amenity
of a location.
On the suitability issue, Heath J was willing to allow new
affidavit evidence from Venus which clarified various matters that
had caused the Authority concern about suitability. In particular,
the new evidence provided details of Venus' director's
experience, and also evidence relating to nearby sensitive sites.
Heath J held this further evidence was admissible that it
demonstrated Venus was suitable to hold a liquor licence. He
allowed the appeal and reversed the decision of the Authority on
the suitability issue.
The good order and amenity test is critically important to
consider with any new licensed premises. Reporting agencies such as
the Police, Inspector, the Medical Officer of Health, and public
objectors are always interested in these aspects. It is important
to ensure the best evidence is presented at any opposed licence
hearing to help ensure the success of any new licence application,
and reduce the costs of any appeal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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