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 [2015] 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 outlets.
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 [2014] 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.
