Auckland Council has now adopted a Provisional Local Alcohol Policy (PLAP) under the Sale and Supply of Alcohol Act 2012. The PLAP contains a number of amendments when compared to the original Draft LAP. The policy attracted numerous submissions from members of the community, health agencies and those in the alcohol manufacturing, grocery and hospitality sectors.
Auckland Council publicly notified its adoption of the PLAP on 19 May 2015. Appeals by persons who originally made submissions on the Draft LAP, must be filed by 18 June 2015. Appeals will need to focus on why an element of the provisional policy is unreasonable in light of the object of the Act. The policy cannot be made operative until any appeals against the PLAP have been resolved by Alcohol Regulatory and Licensing Authority (ARLA), which can refer matters back to the Council for its reconsideration. Appeals on a PLAP are limited to the reporting agencies (Inspectors, Police and Medical Officer of Health), and those parties that made submissions on the original LAP provisions.
For on-licensed premises, the PLAP has proposed maximum trading hours of:
- Central City: 8am to 4am (same as the current situation under the national default trading hours in the Act);
- Rest of the Auckland Region: 8am to 3am.
The PLAP will be of particular interest (and impact) to current off-licence holders, and those who might be seeking to obtain an off-licence for new premises at some stage in the future.
Auckland Council’s proposal is that for some areas of Auckland, including the City Centre area, and identified Priority Overlay Areas (where the alcohol-related harm risks are considered higher), there is to be a:
- 24-month ‘freeze’ on the grant of new off-licences; followed by
- Rebuttable presumption that new off-licences will not be granted.
For some other areas of Auckland (Neighbourhood Centres), the rebuttable presumption against the grant of new off-licences will also apply. In those areas applicants will need to produce argument and evidence to convince a District Licensing Committee (or ARLA) as to why a licence should be granted. While at law the onus has always been on an applicant, a presumption against the grant, is new.
Under the Act, the national default trading hours for off-licences are 7am to 11pm daily. However, the proposed default trading hours for off-licences under the PLAP set by Auckland Council are proposed to be 9am to 9pm.
Remote sales off-licences – being those that are catalogue or website based, with delivery conducted remotely from where the sale occurs – are not affected by the freeze or rebuttable presumption noted above. While sales can be affected at any time, delivery hours are proposed to be further restricted by the PLAP, to be between 6am and 9pm daily.
Local Impacts Reports
Previously referred to in the Draft LAP as “Environmental and Cumulative Impacts Assessments”, new “Local Impacts Reports” are proposed for most licence applications (except for those categorised as very low risk).
In our view, the PLAP has improved the provisions relating to Local Impacts Reports, as it has specified that they are to be prepared by the Inspectorate (not Council generally), and are to cover more objective criteria (for example, comment on certain (defined) sensitive sites that are within 500m of a premises). It is not clear in the PLAP whether the Local Impacts Reports will always be provided to an applicant/licensee, such that they might have an opportunity to respond; so in our view, there remains some room for improvement. We have some concerns still as to the nature of the Local Impacts Reports given the Act does not provide for them. The Act only recognises Inspector’s Reports, and there seems to be no good reason to purport to introduce a new report absent a statutory basis for doing so. Having (by implication) accepted the Draft LAP was flawed as to the scope of the Environmental and Cumulative Impacts Assessments, a better and more robust approach would have been to simply specify the matters an Inspectors’ Report should address for particular applications.
For club licences, closing hours are proposed to be 9am to 1am daily.
An exception has also been made to allow RSA trading on Anzac Day mornings (currently all RSAs would need to obtain special licences to authorise the sale of alcohol on Anzac Day to persons who are not present to dine).
Conditions that may be imposed on licences
The PLAP has made changes to the range and type of conditions that the DLC or ARLA may impose on licences as ‘discretionary’ conditions. There appears still to be some direction to the DLC and ARLA that particular conditions should be imposed. We consider such direction to be misplaced.
Of note, Council has removed the suggestion that licensees are responsible for cleaning public areas near to licensed premises and requiring designations over all licensed premises (not just a part of hotels and taverns as required by the Act). Other conditions that are still being proposed in the PLAP for inclusion on licences relate to:
- Record-keeping for alcohol-related incidents (e.g. fighting, injury, or damage of property);
- CCTV requirements;
- Exterior lighting requirements;
- Restrictions on single sales (for off-licences);
- Host responsibility and staff training;
- Afternoon closing of off-licence premises that are near Education Facilities (i.e. between 3-4pm);
- Monitoring of on-licence outdoor areas and/or queue management;
- Display of information about safe transport (A4 posters in two locations, with certain details including an anti-drink drive message).
Other suggested changes to conditions include requiring BYO endorsed on-licences to have certified mangers on duty on Fridays and Saturdays from 6pm, and “at any other time when over 50 patrons can be reasonably expected to be present”. Such a change is an attempt to remove some options currently available to BYO-only restaurants, as these premises (where alcohol is not sold, but can be consumed by patrons), are not required by the Act to have a certified manager on duty.
Overall, we consider that the Council has adopted an approach in the PLAP that has responded to concerns of submitters in the hospitality industry around the reasonableness of certain proposed conditions and also permitted trading hours. Notwithstanding this we have remaining concerns with how the ‘discretionary’ conditions are to be applied and implemented, and their potentially prescriptive nature, particularly for good operators with robust host responsibility policies and procedures already in place.
We suspect that there will be a number of appeals lodged with ARLA, particularly given the earlier closing time proposed for off-licences throughout the region (9pm), and the two-year blanket prohibition on the issue of new off-licences in the City Centre and Priority Overlay areas. We question whether a freeze and presumption against grant will be upheld given that Parliament could have itself elected to enforce greater restrictions on off-licence hours or controls on the overall number of premises through specific sections of the legislation. On the other hand however, s.77(1)(d) of the Act provides that a LAP can include a policy on the following matters: “whether further licences (or licences of a particular kind or kinds) should be issued for premises in the district concerned, or any stated part of the district”. On that basis, a blanket prohibition within some areas of Auckland might be considered reasonable by ARLA.
Several provisional local alcohol policies from various local authorities have already been appealed to ARLA – including those policies of Tasman, Wellington, Porirua, Thames-Coromandel, Ashburton and Selwyn. With regards to maximum trading hours being truncated, where a local authority has chosen to impose tighter restrictions on opening hours (i.e. lesser hours than the national default), ARLA has, to date, been hesitant to overturn those decisions.
Of the LAP decisions released to date by ARLA, it is clear that there is a need for some evidential basis for decisions made by local authorities, but also that the onus of establishing unreasonableness rests with the appellant. The standard of what is reasonable has been noted by ARLA in one of its earlier LAP appeal decisions as being “what an informed objective bystander (the Authority) would consider unreasonable having regard to the object of the Act”. To date, the standard of unreasonableness in light of the object of the Act, has been a high bar to meet.