Publications

Resource Management Update – October 2015

Home Insights Resource Management Update – October 2015

In this edition:

Rena resource consent hearing - full steam ahead

In a landmark case, a panel chaired by retired Environment Court Judge Whiting has been hearing submissions and evidence on an application by The Astrolabe Community Trust (“Trust”) to abandon the wreck of the MV Rena on Astrolabe Reef (also known as Otaiti), approximately 12 nautical miles off the coast of Tauranga and 4 nautical miles from Motiti Island. The application, which ran to over two thousand pages of technical, cultural, and ecological reports, seeks consent to abandon the remains of the MV Rena (including its equipment, cargo, and associated debris field) under section 15A of the Resource Management Act 1991 (“RMA”), as well as to seek consent for any potential future discharges from the wreck under section 15B of the RMA, in what is a significant step for the biggest maritime casualty in New Zealand’s history, and the second most expensive salvage operation in the world.

The application seeks for the entire wreck of the Rena (including the associated cargo and debris field) to remain in the Astrolabe Reef. The application includes provision for the bow section of the ship to remain on the reef below the LAT (level of lowest astronomical tide) –1m, and for the aft section (which split and sank as a result of storm damage in January 2012) and associated debris field to remain in situ, following further clearance of material that was distributed from the ship’s cargo to a depth of 30 metres. The proposal also seeks consent for any potential future discharges of contaminants that are either contained within the remnant cargo of the wreck (including TCCA (trichloroisocyanuric acid) and copper clove), as well as from parts of the vessel itself (including the anti-fouling paint or TBT (Tributyltin), which coats the ship’s hull). The application specifically does not seek retrospective consent for the grounding of the Rena and instead looks at the future state of the environment and the effects of the proposal in a ‘real world’ situation.

As part of the proposal, the Trust has put forward a comprehensive set of conditions that seek to address any environmental effects which may result from the application during the 10-year term of consent. Those conditions of consent include:

  • A Monitoring Plan to monitor effects on physical, cultural, Mauri (spiritual life force of the reef which is considered to be a taonga to local iwi and hapū), ecological, and other human health effects; the condition of the wreck; and provision for contingencies.
  • A Wreck Access Plan, to educate and inform visitors to the Reef, including recreational divers and recreational fishers.
  • A Shoreline Debris Management Plan, to address any further wash-up of debris from the Rena on the Bay of Plenty shoreline.
  • A Restoration and Mitigation package to address any residual potential adverse effects, including effects on tangata whenua values. This includes the establishment of a Kaitiakitanga Reference Group, which provides for the ongoing involvement of tangata whenua as kaitiaki of Otaiti.

The Panel heard evidence from a number of expert witnesses for the Trust that the effects of the proposal will achieve the sustainable management of natural and physical resources, including detailed salvage, wreck removal, and dive safety evidence, as well as ecological, human health, and cultural evidence. In particular, the Trust’s case emphasised the extensive engagement process with tangata whenua in the Tauranga Moana and Maketu areas, with a particular focus on the inhabitants of Motiti Island, who were most directly affected by the impact of the grounding. The Trust has proposed a $3.6 million Restoration and Mitigation Package, aimed at addressing any adverse cultural effects of the proposal – which is well in excess of the mitigation fund put forward in the Port of Tauranga dredging application and any known mitigation in other cases.

The Panel has heard evidence from submitters who support the Trust’s application to leave the remains of the wreck on Astrolabe Reef. A number of groups of Motiti Island residents, including Motiti Environmental Management Inc, and the Kaahui Kaumatua o Te Patuwai (a group of resident kaumātua and kuia from the island) spoke in support of the Trust’s application, as did Te Arawa iwi groups, led by Ngati Makino.  In particular, the evidence of Nepia Ranapia for the Kaahui Kaumātua endorsed the Trust’s efforts to engage with local Māori, and spoke of the ability for the Mauri to recover following the grounding, notwithstanding the continued presence of the wreck. Te Awara presented a significant amount of dive footage, and explained that the Mauri of the reef is recovering. 

Te Arawa witnesses also praised the Trust’s engagement efforts, having stated that Te Arawa’s initial stance was to completely oppose leaving the wreck in situ.

The Panel has also heard evidence from submitters who seek full removal of the remains, including evidence on behalf of the Ngati Awa and Te Patuwai. The Crown has also provided evidence that supports (under certain conditions) the removal of the bow section from the reef, basing its case on ecological, dive safety, and natural character effects. Evidence for other submitters (including a number of other iwi and hapū affected by the proposal) seeks for the full removal of the wreck, in order for the Mauri of the reef to fully replenish.

The hearing is ongoing, and is due to close with legal submissions from both the Trust and submitters next week. Russell McVeagh is part of the legal team for the applicant.

Aidan Cameron

RMA reform update - back to the drawing board?

Since our last article on RMA reform, which can be found here, there have been a number of political developments which have cast doubt on whether the proposed bill to amend the Act will be as extensive as the Minister may have wanted.

Winston Peters’ victory in the Northland by-election in March meant the loss of National’s outright majority, and with it, the loss of National's ability to pass the proposed changes to the RMA with only Act’s support.

In relation to the RMA reforms, the Prime Minister's response to Mr Peters’ win (on Morning Report in March this year) was: 

“[t]here’s no question that we have got to rip up what we've got now and go back to the drawing board and have another go.”

The Prime Minister later confirmed in a speech to the Property Council in late May that the probability of there being a change to sections six and seven of the RMA “is zero”, with the housing issue now more likely to be addressed through other legislation, such as the special housing areas framework set up under the Housing Accords and Special Housing Areas Act 2013.

Fast forward to August, and the Minister for the Environment's speech at the Environmental Defence Society (EDS) conference, and it appears there has been little movement on RMA reform. The Minister commented that National is currently in the process of securing Parliamentary support from the Government’s support parties for the second phase of RMA reform. The Minister also reaffirmed the Government's objective to secure better management of natural hazards, to introduce a system of standardised planning templates, to eliminate the need for consents for minor activities and to streamline the plan-making process. A full transcript of the Minister’s speech can be found here

The one indication of progress on RMA reforms was his announcement that new National Policy Statements on urban development, aquaculture, biodiversity and natural hazards are being considered, as well as further work on national environmental standards for telecommunications facilities (that will address the rollout of technologies like 4G, UFB and Wi-Fi), plantation forestry, pest control, air quality and contaminated soils.

In terms of timeframes, the Minister recently indicated he is hopeful the Government will get the Bill before Parliament this year. 

We will keep you updated on any developments with the reforms as they progress.

For assistance in engaging with the RMA reform processes, you can contact Allison Arthur-Young.

David Alley

Auckland Unitary Plan - testing the strength of the planning framework

With the Unitary Plan’s Auckland-wide rules, zone and overlay hearings almost at a close, a number of cracks have been exposed in the structure of the Plan, as detailed in a report produced independently by planner David Wren following his involvement in the Topic 075 – Waitakere Ranges workshops.

A key objective of the Unitary Plan was to create a simple planning framework that would be accessible for the everyday user. A supposedly clear hierarchy has been put in place:

  • The zone and Auckland-wide rules are intended to provide a platform. The Auckland-wide rules apply to the use and development of land (eg earthworks, contaminated land, transport) regardless of the zone in which they occur. The zone manages the use and development of land where similar uses and activities are anticipated (eg Heavy Industry zone, Healthcare Facility zone).
  • The precinct mechanism sits over top of the zone and provides for local differences (eg Port precinct, Cornwall Park precinct). The provisions can be more restrictive or more enabling than the underlying zone rules.
  • The overlays manage the protection and enhancement of values associated with an area or resource (eg historic heritage, volcanic viewshafts). The overlays generally apply more restrictive controls and do not follow zone or precinct boundaries.

While in theory the above structure seems unambiguous, in practice several issues have been identified.  Through Topic 075 (Waitakere Ranges) planner David Wren produced a report outlining his concerns with the structure of the Unitary Plan. 

Mr Wren's first issue is with the wording of Rule G2.1, which is intended to clearly explain which planning mechanism is dominant in determining activity status. This wording of this rule was substantially amended by the parties at mediation on Topic 004 (General provisions) to create a consistent and adequate explanation of the relationship between the layers. Mr Wren disagrees that the relationship exists, as now explained in that rule, and his comments largely highlight potential issues of interpretation for users of the Plan in the future. 

Mr Wren then turns to the various rules, precincts and overlays themselves. He notes that:

  • some Auckland-wide rules in fact work more as zone rules or overlays;
  • some overlays relate to a specific activity (eg tree removal) while others relate to all activities and so apply another level of control to those activities (eg air quality); and
  • where the Auckland-wide rules relate to a specific activity there is no method for identifying whether a plan-user’s activity is subject to such a rule without going through every rule individually. 

To address his concerns, Mr Wren suggests a revised hierarchy, where the zone, precinct and Auckland-wide rules sit as an interconnected platform with the overlays sitting above. Mr Wren goes on to set out how the mechanisms can be applied effectively to the Unitary Plan, suggesting that:

  • Overlays should be split between genuine overlays (eg coastal natural character areas, quarry buffer area) and “special identifications” (eg key retail frontage, lake management area).
  • The Auckland-wide provisions should be rearranged so that only true Auckland-wide rules (ie those rules that apply to every zone across the region) fall within this section.
  • Distinctions in rules that relate to the same activity but for a different purpose should be removed.
  • Precincts should not override overlays.

The Panel has indicated at various times through this process that it too is unhappy with the somewhat complicated structure of the Unitary Plan. In its interim guidance on Topic 004 (General Provisions) the Panel noted that it considered Rule G2.1 complex, and that the relationship between the various mechanisms was not always consistent.

More recently, the Panel has made the following comments to submitters at the hearing on Topics 051-054 (Business zones):

  • Is the two layer approach (ie zone and precinct) necessary where the underlying zone for a site has no utility?
  • In cases where a precinct makes only minor changes to the zone provisions, it might be better for the zone provisions to include a site-specific rule, rather than create a whole precinct.
  • One of the objectives of the Unitary Plan was to reduce the number of zones in Auckland.  However, with the plethora of precincts, this objective was being overridden.
  • Site-specific zoning may be appropriate in some cases.
  • The overarching aim is for there to be clarity for users of the Unitary Plan and the current zone/precinct proposal is too complicated.

With the re-zoning and precinct hearings fast approaching, the analysis undertaken by Mr Wren, and the Panel's scepticism of the planning framework, is something that submitters will need to seriously consider in their preparation for these topics. For example, submitters may need to consider alternative options that would both satisfy the Panel in terms of a robust planning framework, and the requirements of their activities. 

In terms of hearings that have already occurred, both Mr Wren’s suggestions and the Panel's apparent dissent from the status quo create an unexpected uncertainty where submitters and the Council have reached agreement. There are also potential issues for submitters who have proceeded with evidence and submissions on the basis of the overall framework being accepted without serious consideration that the Panel may choose to significantly alter the mechanism (eg the removal of certain overlays, or the total prohibition on precinct provisions trumping overlay provisions). Under the Local Government (Auckland Transitional Provisions) Act 2010, the Panel, in forming its recommendations, is not limited to making recommendations only within the scope of submissions and may make any other recommendations it sees fit. In light of these recent comments, it is possible that submitters could be seeing a very different Unitary Plan to the one that was notified.     

Samantha Beattie

Unitary Plan Update - law change expected to speed up the process

There have been a number of recent developments in respect of the Proposed Auckland Unitary Plan, including an indication of possible legislative refinements to enable the Hearings Panel to speed up the hearing process and achieve its statutory deadline. 

Hon Dr Nick Smith and Mayor Len Brown recently announced that a Bill will be introduced to give the Unitary Plan Hearings Panel greater flexibility in order to achieve its statutory deadline. Changes including reducing the Panel’s quorum; confirming that concurrent sessions can be held; allowing recommendations to be made in stages; and allowing the appointment of additional Panel members. Although the Bill has not yet been introduced, it is expected to be passed before the end of the year.

For this and other updates please see our latest Unitary Plan Update.

Michael Doesburg

Christchurch Replacement Plan continuing on the "fast-track"

The fast-tracked Proposed Christchurch Replacement District Plan (“Proposed Plan”) process is continuing at speed since our last update, with the Independent Hearings Panel releasing a number of decisions on the Stage One Proposals, hearings under way on the Stage Two Proposals, and further submissions on Stage Three recently closing.

Our earlier updates (available here and here) provide greater detail on the Proposed Plan process and the earlier “priority” decisions made by the Hearings Panel, which has final decision-making power.

In terms of Stage One of the Proposed Plan, these hearings involved, as appears to be the norm for this process, extensive cross-examination (by both Christchurch City Council (“Council”) and submitters) and Panel questioning of witnesses. 

Of note, the Commercial Stage One hearing included much debate on the Council’s proposed level of urban design prescription. The proposed urban design provisions signalled a significant shift away from the operative regime, with the provisions kicking in at a lower threshold, a restricted discretionary (as opposed to controlled) activity requirement, and a comparatively large number of assessment matters. Concerns were raised as to how this accords with higher-order direction, in particular the prescribed expectation that the Proposed Plan will significantly reduce reliance on resource consent processes and the number, extent and prescriptiveness of development controls and design standards. The Panel took a proactive interest in the matter, with several Panel members putting forward alternative approaches.

The Stage Two hearings are under way and include the Utilities; Energy and Infrastructure; Earthworks; Hazardous Substances; Rural; Open Space; Specific Purpose Zones; and remaining parts of the Commercial and Industrial Proposals.

Stage Three of the Proposed Plan, on which further submissions have recently closed, involves the Natural and Cultural Heritage; Coastal Environment; Natural Hazards (part) and Central City Proposals; and the Flat Land Recovery and Cranford Basin Specific Purpose zones. 

As part of Stage Three, in response to a Coastal Hazards Assessment Report by Tonkin and Taylor, the Council had proposed to include coastal hazards provisions relating to development in areas susceptible to the risks of coastal inundation and erosion. This caused much concern for affected communities and residents, which was exacerbated by the tight timeframes for submissions on the provisions. 

However, on 29 September 2015, the Government and Council together announced that the provisions would be removed from the Proposed Plan’s fast-tracked process, and would be better dealt with through the Council’s normal plan review process. This will require the drafting of an Order in Council, and the resolution of the matter is likely to be part of a broader Government initiative involving both legislative change and national policy guidance on natural hazards as part of its Resource Management Act 1991 reform programme. 

Russell McVeagh is acting for several clients based in Christchurch and nationwide on the Proposed Plan.

Annabel Linterman

Health & safety reform brings changes to the hazardous substances regime

The Health & Safety at Work Act (“HSW Act”) was passed on 4 September 2015 and will come into force on 4 April 2016. It is the greatest overhaul of health and safety legislation in over a decade. The HSW Act, combined with the recently enacted Hazardous Substances and New Organisms Amendment Act 2015 (“HSNO Amendment Act”), brings significant statutory and regulatory changes that will impact the operation of the Hazardous Substances and New Organisms Act 1996 (“HSNO Act”). 

Businesses will also have to comply with regulations currently being developed in relation to general risk and workplace management, major hazard facilities, asbestos and engagement, worker participation, and representation. Following consultation on these regulations, WorkSafe NZ (“WorkSafe”) will issue formal guidance to support the HSW Act. This article focuses on the changes as they relate to the regulation of hazardous substances, providing an overview of WorkSafe and the Environmental Protection Authority’s (“EPA”) roles; the current and proposed regulations under the new regime; and a high-level insight into how businesses can prepare to comply.  

Further information on the HSW Act itself, and how it will affect you, can be found in the Employment team’s health and safety update here.

Transfer of functions from EPA to WorkSafe

The reforms have redistributed the EPA’s current administrative functions under the HSNO Act. The regulation of hazardous substances in the workplace will now be managed by WorkSafe under the Health and Safety at Work regime. HSNO outside of the workplace will continue to be managed by the EPA. In anticipation of the implementation of these changes on 4 April 2016, management of a number of hazardous substances responsibilities have already been delegated to WorkSafe on behalf of the EPA. These functions include workplace HSNO enquiries and guidance on the workplace use of hazardous substances.
Under the HSNO Amendment Act, the EPA will now:

  • assume a new compliance and enforcement role for making sure importers and manufacturers:
    • have HSNO approval;
    • have the right label, packaging, and safety data sheet for their substance;
    • comply with the rules around allowable limits; and
    • comply with the bans on persistent organic pollutants; and
  • continue to approve applications for hazardous substances, classify them, assess their risk and decide whether they should be approved for New Zealand use.

The HSNO Amendment Act also vests a new power in the EPA to issue “EPA Notices”, a new legal tool for the EPA to set rules under the HSNO Act which compile all the rules about one topic into a single notice. These will be approved by the EPA Board rather than going through Cabinet as required for regulation changes. This will enable the regulations to be updated more easily than regulations, and to keep pace with international developments.   
Under the HSW Act, WorkSafe will have the power to:

  • continue to enforce rules relating to workplace health and safety involving hazardous substances, but will now also be able to create rules and set controls for using, handling, storing or manufacturing hazardous substances in workplaces;
  • set guidance and standards on hazardous substances; and
  • manage the test certification regime.

New Regulations
Under the Health and Safety regime, the Government has released four draft Regulations for consultation thus far, with the aim of releasing a further two by the end of the year. WorkSafe will also release new approved codes of practices and guidance. The exposure drafts of phase one regulations released to date are:

  • Health and Safety at Work (General Risk and Workplace Management) Regulations 2015.
  • Health and Safety at Work (Major Hazard Facilities) Regulations 2015.
  • Health and Safety at Work (Asbestos) Regulations 2015.
  • Health and Safety at Work (Infringement Offences and Fees) Regulations 2015.
  • Health and Safety at Work (Worker Engagement, Participation and Representation) Regulations 2015.

The other three exposure drafts, in relation to mining, petroleum and adventure activities, are updated versions of regulations recently made under the Health and Safety in Employment Act 1992. A copy of the draft regulations can be found here.  

The Health and Safety at Work (Hazardous Substances) Regulations will be implemented and run alongside the HSW Act. A draft is expected in the latter half of 2016, and will come into force no later than 4 April 2018. 

Before the new law takes effect in April 2016, WorkSafe will be providing information as to how businesses can prepare for compliance with the new regulations here.

Chaturika Jayasinghe and India Townsend

Measuring the natural world: new Environmental Reporting Act passed

The Environmental Reporting Act 2015 (Act) was passed by Parliament on 24 September 2015, over a year after it was first introduced in February 2014 (see our earlier update on the Environmental Reporting Bill here).  The Act is intended to focus Government, Councils and communities on finding long-term sustainable solutions to maintain New Zealand's natural wealth. 

The new Act aligns New Zealand with other OECD countries, which have statutory requirements for state of the environment reporting. It requires the Ministry for the Environment and Statistics New Zealand to publish a report every six months on one of five environmental “domains” (air, freshwater, land, marine, atmosphere and climate). The cycle will begin with freshwater in mid-2016. A “synthesis report”, with analysis of trends in all five domains and their interactions, will be published every three years.  

The Act provides that the Government Statistician and Chief Executive of the Ministry for the Environment are to act independently of any Minister of the Crown in producing and publishing environmental reports. The Parliamentary Commissioner for the Environment may also report on (essentially, audit) an environmental report if they wish to do so.

The first report to be released under the Act is a synthesis report entitled the Environment Aotearoa 2015 report, due to be published on 21 October 2015.

The text of the Act can be viewed here.

Chaturika Jayasinghe

No way through? High Court dismisses NZTA's appeal on Basin Bridge decision

The Basin Bridge Proposal (“Proposal”) has come up against another red light with the High Court’s decision in New Zealand Transport Agency v Architectural Centre Incorporated & Others [2015] NZHC 1991. In dismissing the appeal, the High Court found that the Board of Inquiry had not made any error of law in rejecting the NZTA’s application for resource consents and cancelling NZTA’s notice of requirement. 

The wide range of questions on appeal enabled the High Court to comment on a number of RMA issues, including the application of the King Salmon case (Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 593) to notices of requirement, the adequate consideration of alternative options, and the proper consideration of enabling benefits.   

See our summary of the Board of Inquiry’s decision to decline the Proposal here, and a summary of the points of appeal here. 

"Subject to Part 2" – King Salmon

The question that NZTA raised in relation to Part 2 was, when considering a requirement under section 171(1), how are the words “subject to Part 2” to be applied (in particular, following the recent Supreme Court decision in King Salmon)?

The NZTA argued that the relocation in 2003 of the “subject to Part 2” phrase from the beginning of subsection 171(1) to its current location in that subsection meant that this phrase only relates to the assessment of effects itself, and that consideration of the statutory planning documents at subsections (a) to (d) was no longer directly subject to Part 2. This argument was rejected by the High Court, which stated that there was nothing to suggest that the relocation of the phrase within section 171(1) was for the significant purpose contended by the NZTA. 

Furthermore, the case was distinguished from King Salmon on the basis that, while the plan change being considered in King Salmon was required to “give effect to” a higher order planning document (the NZCPS) which the Supreme Court considered must already “give substance to” Part 2 in relation to the coastal environment, this case involved the consideration of the environmental effects of the notice of requirement, “subject to Part 2” and with a direction to “have particular regard” to (not “give effect to”) the relevant statutory planning documents.

The High Court also held that a decision-maker’s consideration of Part 2 in a designation process is not confined to situations where one of the three“caveats” identified by the Supreme Court in King Salmon (ie invalidity, incomplete coverage or uncertainty of meaning) applies.

Adequate consideration of alternative options

The NZTA contended that the Board had made an error in requiring a more careful consideration of alternatives in circumstances where there are more significant adverse effects of allowing a notice of requirement. 

The Board of Inquiry had relied on the High Court in Queenstown Airport Corporation Ltd v Queenstown Lakes District Council [2013] NZHC 2347 where it was considered that the measure of adequacy would depend upon the extent of private land affected by the designation. The Board considered that the same logic that the High Court applied to section 171(1)(b)(i) in relation to personal property rights must apply to the extent of the Proposal’s significant adverse effects on the environment under section 171(1)(b)(ii). As such, the Board found that the adequacy of the consideration of alternatives will be partly dependant on the extent of adverse effects on the environment. 

The High Court in this case concluded (at [140]):

“... It is simply common sense that what will amount to sufficient consideration of alternative sites will be influenced to some degree by the extent of the consequences of the scenarios in s 171(1)(b)(i) and (ii).”

NZTA also contended that the Board had required NZTA to demonstrate that it had considered every non-suppositious option with potentially less adverse effects. The High Court found that the Board had not taken such an approach and held that section 171(1)(b) did not require a requiring authority to fully evaluate every non-suppositious alternative with potentially reduced environment effects. The High Court further noted that in some, but by no means in all, cases it may be necessary for the decision-maker to gain access to the weightings in a multi-criteria analysis in order to be satisfied that adequate consideration has been given to alternatives.

Enabling benefits

A key issue during the Board hearing had been the implications of NZTA having sought approvals for the Proposal separately from those related parts of the network, particularly the Mt Victoria Tunnel duplication, and in advance of details of the Public Transport Spine Study and its outcomes being finalised.  

NZTA contended before the High Court that the Board had failed to treat the Proposal’s enabling benefits as separate and identifiable positive effects of the Proposal that properly fall within the scope of “effect” as defined in the RMA.

The High Court rejected this claim and found that the Board took into account and gave at least some weight to the enabling effect of the Proposal in arriving at its decision. The High Court concluded that a project's enabling benefit can constitute an effect to be taken into account under section 171(1) and/or section 5. It found that an enabling effect of benefits of a project will inevitably be specific to its circumstances, and that in order to be given weight, it is not strictly necessary for the enabling benefit in question to be unique to a project, guaranteed to go ahead, or able to be quantified. 

Commentary

The decision of the High Court provides useful guidance to infrastructure providers. An applicant will be better placed if it can provide evidence that the enabling element of the project is something unique to, or which can only be achieved by, the option put forward. In addition, alternatives must be appropriately considered based on the extent to which the adverse effects of the proposal impact on the environment, as advanced by the Board of Inquiry. 

Finally, the High Court affirmed the clear distinction made by the Board between the circumstances in King Salmon (a plan change required to give effect to a higher order planning document) and the circumstances of this case (consideration of the environmental effects of the notice of requirement, subject to Part 2 and having particular regard to the relevant statutory planning documents).

David Alley and George Willis

High Court ruling shakes up test for liquor licensing

A High Court decision from earlier in the year is beginning to cause a stir at liquor licensing hearings.  The decision in Re Venus NZ Limited [2015] NZHC 1377 has clarified that there is no onus on applicants to prove that the amenity and good order of a locality will not be reduced in order to obtain a licence. The decision has significant implications for how applicants and reporting agencies frame their cases for licence applications. We are beginning to see these implications reflected in district licensing committee decisions.

Re Venus – facts

Venus NZ Limited applied for an off-licence to trade as a bottle store in Raglan. There were six existing off-licence premises within 200m of Venus NZ Limited's proposed location, as well as seven on-licence premises.  The density of off-licenses led to concerns around good order and amenity, including on the basis of proliferation of licensed premises. The application was declined by the Alcohol Regulatory and Licensing Authority on the basis of lack of suitability of the applicant, and effects on good order and amenity. That decision was appealed to the High Court.

High Court finding

In respect of good order and amenity, Heath J considered the Authority’s reliance on the line of case law which established an onus on an applicant to prove its case. This included reference to the High Court’s decision in Paige v Police HC Christchurch AP84/98, 24 July 1998 and the Authority’s decision in Re Hari Om (2013) Limited [2014] NZARLA PH 159.
Justice Heath was critical of the Authority’s decision in Re Hari Om, where the Authority held (at [30]):

...The Authority considers that just as in the case of suitability issues, there is an onus on an applicant to prove its case (see, for example, Page v Police 24/7/98 Pankhurst J, HC Ch-ch, AP 8498), so also is there an onus on an applicant to satisfy the Authority that the issue of the proposed off-licence is unlikely to reduce the amenity and good order of the locality to more than a minor extent...

Instead, Heath J found that the Sale and Supply of Alcohol Act 2012 requires the Authority to form its own opinion on whether the amenity and good order of a locality would be reduced.  He held (at [55]):

Section 106(1)(h) of the 2012 Act requires the Authority to form an opinion that “the amenity and good order of the locality would be likely to be reduced, to more than a minor extent, by the effects of the issue of the licence”.  That is one factor to be taken into account in determining whether a licence should be granted. To the extent that Re Hari Om held that there was an onus on an 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.

The High Court found that there was insufficient evidence for the Authority to have made an affirmative conclusion that amenity and good order would be reduced to a more than minor extent by Venus’ application.  Having considered additional evidence on the suitability point, the High Court set aside the Authority's decision and authorised the issue of the off-licence.

Implications

In our experience, it can be difficult for applicants to positively demonstrate that the effects of granting a licence will not reduce the amenity and good order of a locality. This is particularly the case where there is no direct evidence of any alcohol related harm in a locality. The Re Venus decision clarifies that a lack of evidence from an applicant on amenity and good order will not be fatal. 

Recent decisions

We have seen the application of Re Venus in two recent district licensing committee decisions.

Whakatane District Licensing Committee (August 2015)

In August, the Whakatane District Licensing Committee considered the implication of Re Venus when granting an on-licence application by Papafornia Entertainment Limited for a cafe as part of a cinema complex.

The Inspector indicated concern that the application might affect amenity and good order, and the Medical Officer of Health submitted that amenity and good order would be reduced as it would not always be a pleasant and agreeable environment for minors travelling through or waiting nearby. However, in forming its own opinion of the locality and considering the matters under section 106, the Committee satisfied itself that the proposal was compatible with the nearby locality and that there would be no reduction of the amenity and good order by more than a minor amount. The Committee went so far as to find that:

[T]he “Venus” decision is applicable to this case and consequently the burden falls to the opposing agencies to satisfy the Committee that there is a likelihood (more probably than not) of inappropriate or harmful consumption occurring and that the amenity and good order will be likely to be reduced by more than a minor extent and they have not done so.

In the view of the Committee the mere consumption in a public place, where children may be, is of itself insufficient to override the presumption that the consumption of alcohol will be undertaken safely and in accordance with the object of the Act.

Kapiti Coast District Licensing Committee (September 2015)

In September, the Kapiti Coast District Licensing Committee considered an application by Lion Liquor Retail Limited for a new off-licence, which was subject to opposition from the Police and Medical Officer of Health on good order and amenity grounds. In its decision the Committee quoted the following from Re Venus:

Again at “[73] While it was open to the Authority to take a view of the problems that might be caused by a proliferation of off-licences, the fact remains that, unless an onus were placed on the applicant, there was no basis on which the Authority could legitimately find that the amenity and good order criterion was not satisfied.  That being so, the only independent opinion supportable on the evidence was that there was nothing to suggest that the amenity and good order of the locality would be reduced to more than a minor extent, in the manner contemplated by s 105(1)(h).  When one adds a finding of “suitability” to the mix, I cannot see any basis on which the off-licence could legitimately have been refused.”

The Committee found that the Medical Officer of Health’s evidence on hospital admission rates did not show that opening a new off-licence would lead to misbehaviour. In the absence of definitive evidence that amenity and good order would be reduced in an area where there was no evidence of alcohol related harm, the Committee granted the application.

Comment

Where amenity and good order issues are raised by the Inspector, the Police, the Medical Officer of Health or public objectors, the correct application of Re Venus may be critical in ensuring a licence application is successful.

Please contact us if you would like further information.

Note: Russell McVeagh acted for the Applicant in respect of the Kapiti Coast District Licensing Committee hearing.

Allison Arthur-Young and Michael Doesburg

Read more:
Resource Management
Talk to one of our experts:
Related Expertise