Foodstuffs North Island Limited v Alcohol Regulatory and Licensing Authority
[2018] NZHC 988
•8 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-002785
[2018] NZHC 988
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review of the exercise of a statutory power of decision by the Alcohol Regulatory and
Licensing Authority in relation to appeals pursuant to section 81 of the Sale and Supply of Alcohol Act 2012 against elements of the Provisional Local Alcohol Policy publicly notified by the Auckland Council
BETWEEN
FOODSTUFFS NORTH ISLAND LIMITED
Applicant
AND
THE ALCOHOL REGULATORY AND LICENSING AUTHORITY
First Respondent
AUCKLAND COUNCIL
Second Respondentfurther proceedings continued over
Hearing: 12 April 2018 Counsel:
I J Thain and I S E Scorgie for Foodstuffs North Island Limited A W Braggins for Progressive Enterprises Limited
P M S McNamara and T R Fischer for the Second Respondent in both proceedings
Judgment:
8 May 2018
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 8 May 2018 at 3.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
FOODSTUFFS NORTH ISLAND LTD v THE ALCOHOL REGULATORY AND LICENSING AUTHORITY [2018] NZHC 988 [8 May 2018]
CIV-2017-404-002760
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF an application for judicial review of the
exercise of a statutory power under section 81 of the Sale and Supply of Alcohol Act 2012 (“the Act”) by the Alcohol Licensing and Regulatory Authority (“Authority”) in relation to appeals against the Auckland
District Council’s Provisional Local Alcohol Policy (“PLAP”) under the Act
BETWEENPROGRESSIVE ENTERPRISES LIMITED
Applicant
ANDTHE ALCOHOL REGULATORY AND LICENSING AUTHORITY
First Respondent
AUCKLAND COUNCIL
Second Respondent
Introduction
[1] The applicants (Foodstuffs and Progressive) seek judicial review of a decision of the Alcohol Regulatory and Licensing Authority (Authority) in relation to the Auckland Provisional Local Alcohol Policy (PLAP). The judicial review applications are set down for a seven-day hearing in April 2019.1
[2] Pending the determination of the review proceedings, the applicants seek interim orders staying the appeal proceedings before the Authority and prohibiting Auckland Council from taking any steps consequential on the Authority’s decision. In effect, the interim relief sought would prevent the PLAP from being implemented before the judicial review applications are determined.
[3] There is no dispute about the relevant legal principles which apply. Under s 15(1) of the Judicial Review Procedure Act 2016 the applicants must show that interim relief is “necessary” to preserve their positions. Once that statutory threshold has been met, the Court will go on to consider the discretionary factors relevant to the grant of relief. Accordingly, the key questions to be determined in this application are as follows:
(a)Is an interim order staying the appeal proceedings necessary?
(b)Is an interim order staying consequential steps necessary?
(c)Should the Court exercise its discretion to grant interim relief?
The dispute in context
[4] The Sale and Supply of Alcohol Act 2012 (Act) provides for the implementation of local alcohol policies.2 It governs the process to be followed in implementing a draft alcohol policy, and sets out the permitted content of such a policy.
1 The fixture includes an application for judicial review by Redwood Corp Ltd also.
2 Part 2, Subpart 2.
[5] The Council’s Regional Development and Operations Committee decided in May 2012 to develop a local alcohol policy. That decision was confirmed by the Council’s governing body in January 2013, after the Act received its Royal assent. A draft alcohol policy was prepared and a period of consultation and development with a number of groups, including the applicants, then followed. The Council gave public notice of the PLAP in May 2015.
[6] Foodstuffs and Progressive, amongst others, appealed certain elements of the PLAP to the Authority on the ground that they were unreasonable in light of the object of the Act. This is the only ground on which an element of a provisional policy can be appealed against.3 The object of the Act is set out in s 4 which provides 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”.
[7] In a decision dated 19 July 2017, the Authority dismissed most of the applicants’ appeals as it was not satisfied that the elements of the PLAP appealed were “unreasonable in light of the object of the Act”.4 It is the Authority’s decision to dismiss these appeals which forms the basis of the judicial review applications.
[8] The particular clauses of the PLAP which are the subject of the Authority’s decision are discussed in further detail later in this judgment. For present purposes, it is sufficient to note that cl 4.3.1 of the PLAP was the subject of appeal. That clause stipulated maximum off-licence trading hours of 9.00 am to 9.00 pm across the Auckland region. The Authority dismissed the appeal against the closing time of
9.00 pm, but allowed the appeal in relation to the opening time of 9.00 am. That clause, together with other clauses of the PLAP which the Authority found to be unreasonable, were referred back to the Council for reconsideration.
3 Section 81(4).
4 Redwood Corp Ltd v Auckland City Council [2017] NZARLA 247.
[9] On reconsideration, the Council deleted all clauses referred back to it except for cl 4.3.1. That clause was amended to allow for maximum trading hours of 7.00 am to 9.00 pm. The amended PLAP was re-submitted to the Authority on 12 October 2017.
[10] On 10 November 2017, the applicants lodged appeals against the amended cl 4.3.1. Another applicant for judicial review (Redwood Corp Ltd) also lodged appeals against the amended PLAP.
[11] The Council has raised a preliminary issue with the Authority about the validity and scope of the appeals. The Council contends that any appeal can only challenge the opening time of 7.00 am, and not the closing time of 9.00 pm which the Authority has already found to be reasonable in light of the object of the Act. Timetabling orders were made in relation to this preliminary issue and a hearing date fixed. However, the Authority subsequently stayed the timetabling steps and vacated the preliminary issue hearing, pending the determination of this application.
[12] The judicial review applications were filed on 20 November 2017. The present applications were filed on 9 March 2018. As already noted, the judicial review applications are currently set down for a seven-day hearing in April 2019.
Is an order staying the appeal proceedings necessary?
[13] The statutory threshold for the grant of interim relief is that it is necessary to preserve the position of the applicant.5 The word “necessary” bears its natural meaning without gloss or implied restriction.6 The purpose of interim relief is to protect an applicant who might otherwise be unfairly prejudiced by delay in the substantive proceeding being heard and determined.7
5 Judicial Review Procedure Act 2016, s 15(1).
6 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 433;
Dong No Kang v Attorney-General HC Christchurch M308/92, 15 October 1992 at 17.
7 Te Rūnanga-ā-iwi o Ngāti Kahu v Carrington Farms Ltd HC Whangarei CIV-2010-488-348, 13 September 2010 at [16]; Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC) at 8.
[14] The applicants submit that the current appeal proceeding will require all parties to expend cost and effort which will be largely wasted if it is expended before the parties receive the Court’s guidance on the judicial review applications.
[15] Although detailed in the applicants’ written submissions, this part of the application was not pressed with any vigour at the hearing of the application. That is because the applicants’ main objective in applying for interim relief is to ensure the PLAP containing the challenged clauses is not implemented prior to determination of the judicial review. That objective would be achieved by the second order sought which is considered below. An order staying the appeal proceedings would not be necessary if that second order was made.
[16] Even so, I do not consider the potential for wasted costs and effort necessitates the grant of a stay. The cost and effort at issue relates to separate appeal proceedings concerning an amended clause in the PLAP which has yet to be considered by the Authority. The amended clause is not the subject of the judicial review proceedings. The risk that cost and effort will be wasted does not, therefore, directly arise out of any delay in determining the judicial review proceeding.
[17] I am also informed by counsel that the bulk of the costs in relation to the preliminary issues hearing have already been incurred. If the applicants are unsuccessful on the preliminary issue argument then they may well withdraw their appeals. Accordingly, the wasted costs and effort at issue are not particularly significant in the overall scheme of things.
[18] In these circumstances, I am not satisfied that an order staying the appeal proceedings is necessary.
Is an order prohibiting consequential steps necessary?
[19] The applicants submit that they will suffer adverse consequences if the PLAP, including the clauses challenged by the applicants, is implemented prior to the determination of the judicial review.
Timeframe for implementation
[20] The first point to make is that there is real uncertainty about the timeframes for implementation should a stay be refused. That is because there are a number of steps to be taken before the PLAP would come into force, and the length of time to resolve each of those steps depends on the Authority’s decision in the appeal proceedings.
[21] If interim relief is not granted, the next step will be for the Authority to allocate a new hearing date and determine the preliminary issue raised on appeal. That decision will have a bearing on whether the appeals will proceed, and if so, their scope. Those factors will in turn determine the likely hearing date for those appeals.
[22] If the Authority dismisses the appeals, then the Council must follow a statutory process in order to bring the PLAP into force. Section 90(1) requires the Council to give public notice of the adoption of the PLAP. The date that it is to come into force is to be stated by resolution. In an affidavit filed on behalf of the Council, Ms Hopkins submits that a report will need to be prepared and considered by the Council to enable a decision to be made on this resolution. That will take time. In addition, the changes to the maximum trading hours can only take effect on a date at least three months after the date of public notice of the adoption of the PLAP.8
[23] The Council estimates that it will be at least six months before the PLAP is in force if the application for a stay is not granted. If the appeal proceedings go ahead, I consider it likely that the timeframe will be much longer than this.
[24] In addition, all parties at the hearing expressed a desire to expedite the resolution of the judicial review applications and to cooperate in that regard. That cooperation extended to jointly applying for the allocation of a priority fixture. If that application were granted (and I express no views on the merit of such an application), then it is conceivable that the judicial review applications could be heard and determined earlier than April 2019, and prior to the PLAP coming into force.
8 Section 90(2) and (6).
[25] But even if the PLAP is implemented prior to the determination of the judicial review applications, the timeframe uncertainties mean that the likely length of time the PLAP will be in force before the judicial review applications are resolved is difficult to estimate. That affects the extent of any alleged prejudice that the applicants will suffer, which in turn affects the assessment of “necessity”.
[26] Overall, I consider the uncertainties as to when the PLAP might be implemented presents additional hurdles for the applicants to overcome in persuading me that the relief sought is “necessary” at this stage.
Reduced trading hours
[27] Currently, the maximum trading hours for off-licences in Auckland are 7.00 am to 11.00 pm which are the default hours under the Act.9 Clause 4.3.1 of the PLAP stipulates maximum trading hours for off-licences that end at 9.00 pm. Implementation of that clause of the PLAP will mean that those who currently sell alcohol until 11.00 pm will have to cease selling at 9.00 pm.10
[28] Both applicants submit that implementation of the PLAP with these reduced trading hours will impact on the convenience and choice of where customers shop, which may also impact on the core business of both supermarket chains. In addition, Progressive says that the District Licensing Committee may also impose conditions restricting licensed hours to no greater than those in the PLAP.
[29] Whilst it is self-evident that this clause will mean reduced trading hours for some of the applicants’ premises, there is no evidence of what this means in real terms for either applicant. For example, there is no evidence of any financial impact arising out of reduced trading hours, and no evidence from customers to substantiate the claims of inconvenience. There is also no evidence of the difficulties that might be encountered in reversing the effect of a 9.00 pm closing time should the Authority’s decision on this clause be subsequently found to be invalid. In short, there is a lack of
9 Section 43(1)(b).
10 The effect of s 45 of the Act is that the permitted trading hours are those stated in the local alcohol policy unless more restrictive trading hours are imposed as a condition to the issue of a licence.
evidence to substantiate the alleged prejudice which will be suffered if interim relief is not granted.
[30] In the absence of such evidence, I am not satisfied that interim orders prohibiting the PLAP from being implemented with cl 4.3.1 are necessary.
Local Impact Reports
[31] The PLAP provides for the preparation of Local Impact Reports by the Auckland Council Licensing Inspectorate. The matters to be covered by a Local Impact Report are stipulated in the PLAP. They include matters such as the number of existing licensed premises in a local area, any sensitive sites (such as childhood centres and addiction treatment facilities) and the nature and severity of alcohol-related harm in that area.
[32] The PLAP provides that the purpose of the Local Impact Reports is to provide the District Licencing Committee and the Authority with information relevant to their decision-making. They are to be taken into account in certain circumstances including:
(a)the issuing of off-licences and on-licences in regions with specified risk profiles; and
(b)the imposition of discretionary conditions on the renewal of off- licences and on-licences in areas with specified risk profiles.
[33] An applicant for a licence will obtain a copy of the Local Impact Report in advance of any licensing hearing so that it will have an opportunity to respond to the information contained in that report.
[34] The applicants submit that implementation of the PLAP with these Local Impact Report elements may lead to a refusal of an application for a new licence which might otherwise have been granted, or the imposition of conditions on the issue or renewal of a licence which would not otherwise have been imposed. In addition,
Progressive contends that a licence application may be delayed as a result of the requirement for a Local Impact Report.
[35] The evidence in support of this limb of the application is also lacking in detail. Although there is evidence that Foodstuffs’ franchisees would collectively expect to file a “significant” number of new off-licence applications in any given year, there is no further detail about the actual number which might be impacted in the period between implementation of the PLAP and determination of the review applications. Similarly, although it is accepted that licences are renewed on a routine basis, neither applicant has produced evidence of the actual number of renewals which might be affected by the Local Impact Report elements.
[36] Even if there was evidence of this nature, there is no evidence of the actual and specific prejudice which would be irreversibly suffered if the Local Impact Reports were taken into account in either issuing a new licence, or granting a renewal. Some of the information contained in a Local Impact Report may be put before the District Licensing Committee pursuant to current provisions of the Act irrespective of the Local Impact Report elements of the PLAP.11 Furthermore, the applicants will receive notice of the Local Impacts Report and will be entitled to make submissions on it at the hearing. Any prejudicial effect from information in the report may be addressed at that stage.
[37] In summary, the nature of the alleged prejudice arising from implementation of these elements of the PLAP prior to determination of the judicial review proceedings is too generalised and non-specific to satisfy the “necessary” threshold for interim relief.
City Centre and Priority Overlay elements
[38] The PLAP contains the Council’s policy that there be a temporary freeze on the issue of new off-licences in the “City Centre” and “Priority Overlay” areas for a
11 Section 103 provides for the local police, an inspector, and the Medical Officer of Health to be served with a licensing application and to make inquiries into it. If they have any opposition to the application they must file a report on it with the District Licensing Committee. Section 105(1)(h) and (i) also require the District Licensing Committee or the Authority to have regard to the “amenity and good order of the locality” in deciding on an application.
period of 24 months. On the expiry of that period, the PLAP provides for a rebuttable presumption that no new off-licences will be issued in the City Centre and Priority Overlay areas.
[39] The City Centre is shown on a map annexed to the PLAP and essentially encompasses Auckland’s central business district. The Priority Overlay areas are defined to include a number of suburban centres predominantly in West and South Auckland.
[40] The Authority rejected the applicants’ arguments that these elements were unreasonable and ultra vires. The Authority considered that both elements provided guidance to the District Licensing Committee and the Authority on the Council’s preferred outcome, and that these elements did not operate to prevent the issue of off- licences in all cases.12
[41] A number of the applicants’ supermarkets fall within the City Centre or Priority Overlay areas and will therefore be affected by the temporary freeze and rebuttable presumption provisions. They submit that should these aspects of the PLAP come into force, there is a “genuine likelihood” that reporting agencies and/or objectors will seek to impose additional conditions on the existing supermarkets in the area, and that there will be a temporary freeze on off-licence applications for new supermarkets also.
[42] The first point to note is that the elements at issue only affect new licences.13 Neither applicant has produced any evidence that new supermarkets are planned within the City Centre or Priority Overlay areas in the likely intervening period between implementation of the PLAP and determination of the judicial review. Accordingly, there is no evidence that these provisions of the PLAP will lead to an irreversible licensing decision being made with respect to new supermarkets in these areas.
12 Redwood Corp Ltd v Auckland City Council [2017] NZARLA 247 at [144].
13 The PLAP refers to an “application for a New Licence” and defines that term, for the purposes of the temporary freeze and rebuttable presumption provisions, to mean an application for a licence for a premises that has not traded pursuant to a licence of the same kind within the previous six months.
[43] Similarly, the risk that the temporary freeze and rebuttable presumption provisions will impact the decisions around conditions on the renewal of licences within the defined areas is speculative. There is no evidence to substantiate that risk, and no evidence of the number of licences within these areas due for renewal in the relevant period which are likely to be affected.
[44] This alleged prejudice is also unsubstantiated and the evidence falls short of meeting the necessity threshold.
Discretionary conditions elements
[45] The PLAP includes the Council’s policy that, for licences issued or renewed in the Auckland region, the District Licensing Committee and the Authority should include certain conditions “unless there is a good reason not to do so”. The conditions to be included are set out in cls 4.4.3 and 4.4.4 of the PLAP as follows:
Prohibited persons
4.4.3The licensee must take the following steps to ensure the provisions of the Act relating to the sale of alcohol to prohibited persons are observed:
(a)Ensure that no intoxicated persons are allowed to enter or to remain on the premises; and
(b)Ensure that signs are prominently displayed detailing the statutory restrictions on the sale of alcohol to minors and intoxicated persons adjacent to every point of sale.
Register of alcohol-related incidents
4.4.4The licensee must maintain a register of material alcohol-related incidents, noting the date, time and details of each incident, and the steps taken by the licensee in response to the incident.
[46] In addition, cl 4.5 of the PLAP includes a recommendation that certain conditions be imposed, particularly for premises that have a risk profile of “High” or “Very High”, and/or are located in the Priority Overlay area. These conditions relate to CCTV, exterior lighting, single sales, and afternoon closures where premises are near education facilities.
[47] Progressive submits that implementation of the PLAP with these clauses will likely result in additional conditions being imposed on its off-licenses as they come up for renewal. It says that this will impact on the flexibility that it has to operate its stores whilst still using best practice principles. Further, because the Act requires every variation to a licence condition to be publicly notified, any variation to the conditions of a licence as a result of elements which are subsequently found to be ultra vires will carry with it an associated time, cost and delay.
[48] The difficulties in assessing “necessity” in the absence of evidence regarding the number of renewals and new licences likely to be affected applies equally to this ground of the application.
[49] In any event, the impact of these elements of the PLAP needs to be understood in context. The District Licencing Committee and the Authority already have a broad discretion in terms of the imposition of conditions on licences which exists independently of the PLAP. Furthermore, the PLAP is only one factor which the District Licensing Committee has to take into account when making its licensing decision.14 And, as Ms Hopkins’ affidavit demonstrates, many of the conditions which would otherwise be imposed are being voluntarily adopted by the applicants in their licensing applications in any respect.
[50] In that context, it is difficult to see how the applicants will be prejudiced if the PLAP is implemented incorporating these elements such that the grant of interim relief is necessary. This aspect of the application also falls short of the threshold required for interim relief to be granted.
Should the Court exercise its discretion to grant interim relief?
[51] It follows from the above that the applicants have not shown that interim relief is necessary to preserve their positions pending the determination of the judicial review proceedings. Nevertheless, for completeness, I set out my views on the discretionary factors, albeit in very brief terms.
14 Sale and Supply of Alcohol Act 2012, s 105.
Strengths and weaknesses of the substantive claim
[52] In terms of the strengths and weaknesses of the judicial review applications, I accept that the applicants’ claim is arguable. The strongest of those claims would appear, at this preliminary stage at least, to concern the Authority’s application of the precautionary principle to the maximum trading hours element of the PLAP. But even that aspect of the claim is not so strong or overwhelming that it would otherwise tip the balance in favour of the grant of interim relief.
Public and private repercussions
[53] The Council submits that the public and private repercussions of granting interim relief weigh against the grant of a stay. The Council relies on affidavits from Dr Julia Peters, the Auckland Medical Officer of Health, and Inspector Gary Davey, the Area Commander for Auckland City Central Area, as to the alcohol-related harm in the Auckland region. Other affidavits have also been provided by other public interest groups, including Alcohol Healthwatch and the Ōtara Gambling and Alcohol Action Group. These affidavits suggest that any delay in implementing the PLAP will be detrimental to public health, and will allow alcohol-related crime and other harmful effects to continue in the interim.
[54] The applicants submit that the impact of delay needs to be seen in the context of the three years it took between the decision to develop a policy and notification of the PLAP. They say that the PLAP will be in force for the same period of time irrespective of when it comes into force. In addition, Progressive says there is evidence of a general downward trend in alcohol-related harm in Auckland.
[55] I accept the applicants’ submission that the affidavits filed in opposition to the stay bear on the merits of the underlying dispute. The question of whether the measures in the PLAP will reduce alcohol-related harm is not a matter I am able to determine. However, for the purposes of assessing the impact of delay, the affidavits filed provide evidence of widespread community concern about the ongoing effects of alcohol-related harm should the implementation of the PLAP be further delayed. The fact that the policy has taken some time to develop, and that it will be in force for the
same length of time irrespective of its implementation date, provides no answer to those concerns.
Applicants’ delay in filing the applications
[56] The Council pointed to the applicants’ delay in filing the applications as being another factor weighing against interim relief. But I do not consider that delay to be significant in the overall balance. Although steps were taken by the Council in consequence on the Authority’s decision prior to the filing of the application for interim relief, those steps have not occasioned any prejudice to the Council. In fact, in some respects, given the uncertainties in the timeframe for implementation, the applications for interim relief may be seen to be premature.
Status quo
[57] The preservation of the status quo does not add any material weight to the overall analysis. The absence of evidence substantiating the prejudice which will arise if the PLAP is implemented prior to the determination of the judicial review means there is no real imperative to preserve the status quo in the interim.
Competing advantages and disadvantages
[58] Similarly, the assessment of the competing advantages and disadvantages does not add anything new to the overall analysis. For reasons already canvassed, I am not persuaded on the evidence before me that the applicants will suffer any real disadvantage if a stay is not granted. On the other hand, there is evidence before the Court of community concern about the delay in implementing the PLAP should interim orders be made.
Balance of convenience and overall justice
[59] Considering these factors in their totality, I consider the balance of convenience and overall justice of the case weigh against the grant of interim relief.
Result
[60]The applications for interim relief are declined.
[61] The Council is entitled to an award of costs. I am presently inclined to award costs on a schedule 2B basis certifying for one counsel only. If the parties wish to be heard on costs, or cannot agree costs between themselves, then a memorandum in support of costs may be filed within 10 working days of receipt of this judgment, with a memorandum in response filed five working days thereafter.
Edwards J
Solicitors: DLA Piper New Zealand, Auckland Berry Simons, Auckland
Vallant Hooker and Partners, Auckland Simpson Grierson, Auckland
Copies To: Crown Law, Wellington
Luke Cunningham Clere, Wellington
0
0