Understanding objections
Alcohol licensing lawyer Pervinder Kaur explains who can object to an alcohol licence application and what you can do about it…
Applying for an alcohol licence can feel like a long road – and one of the bumps you might encounter along the way is an objection to your application.
Section 102 of the Sale and Supply of Alcohol Act 2012 is described as the status provision in relation to objections. This section concerns objections to applications for on-licences, off-licences, and club licences.
Who can object?
There is no general right of objection against alcohol licence applications. To be heard on a specific application, an objector must show they have status to object; proving that they have a ‘greater interest’ in the application than the public generally. An objector can show status in the following ways:
Geographic proximity
Objectors can show they have ‘status’ if they either reside or have business near the proposed premises (a radius of one two kilometres is considered generous and ‘a fair and realistic’ suggestion) and will be affected in some way by the granting of the licence application. The ‘geographical proximity’ test enshrined in case law is designed to capture the direct impact on persons who live or have business nearby.
“To be heard on a specific application, an objector must show they have status to object.”
Enhanced interest
Individuals or organisations could also establish status through an enhanced interest, no matter how close to the proposed premises they are. The Authority has recognised that there may be a narrow class of objectors who have standing by virtue of an enhanced interest, regardless of geographical boundaries. These include a territorial authority and its mayor and/or councillors and some trade organisations.
Regardless of whether the interest is established on a basis of geographical proximity or otherwise, it must be established in order for an objection to be made.
However, it’s important to note here that a test of geographic proximity is not decisive in all cases. For example, as in Janhurst Holdings Limited [2013] NZARLA PH 826, despite an objector living within a kilometer of the premises, the Authority held that an arterial road served as an “effective barrier” between the premises and the home of the objector, who also had no line of sight to the premises and therefore, did not have an interest greater than any other member of the public. As the Authority in Gisborne Liquormart Ltd v Ka Pai Kaiti Trust [2018] NZARLA 316 has noted, the question of status was a matter of judgment, and the burden of establishing status was to be discharged by the person or body asserting it.
Grounds for objections
In terms of grounds for objections, objectors are restricted to the matters set out in s 102 unless subsection (4) applies (where the type of licence being applied for is already in force for those premises and the conditions are the same), in which case they are limited to an objection only as to the applicant’s suitability.
An objection that does not state any grounds can be challenged on the basis that it is an invalid objection. Any grounds stated at a later date would be time-barred, as they would fall outside the statutory time period specified in s 102(2).
How to handle an objection
Just because your application has received public objection(s) does not necessarily mean that it will go to a public hearing. There are other ways that you can deal with the objections, such as meeting with the objectors to understand their concerns and see if those concerns can be resolved by amending the licence application. You can propose to make changes to the application, provided the objectors consider withdrawing their objection.
But be aware that the consultation with the objectors does not mean that your application would not proceed to a public hearing. The DLC can still hear the application at a public hearing even if all parties have reached an agreed outcome.
If you’re not confident in dealing with the objectors then you should seek expert advice, as in some cases there may not be any point in consulting if there are challenges to your suitability as a licensee and/or there are serious concerns about the risk of increased alcohol-related harm in the locality.
Pervinder Kaur is an Associate at Corcoran French Lawyers, specialising in alcohol licensing.
cflaw.co.nz
