2.2.2 Best practice guidance for chairs for Step 2
The process for considering applications
Chairs receive all applications (and accompanying reports and information) from the secretary of the DLC. Chairs then assess applications and determine whether: they can be granted; more information is needed; or a hearing is required.
The Sale and Supply of Alcohol Act 2012 (the Act) allows chairs to make decisions ‘on the papers’ to grant applications in some instances. This means that the chair can make the decision without involving the other members of the DLC or a hearing being held. The chair can make decisions ‘on the papers’ where there are no public objections and the approved licence is within the parameters of any relevant local alcohol policy.
If you are a chair, you need to consider:
- all the material you receive
- any conflicts of interest
- the application against the object and criteria in the Act
- whether the application is consistent, or not, with any LAP that may be in force
- agency reports and any materials filed by or on behalf of objectors
- any relevant case law
- whether additional discretionary conditions are required
- the application can be approved by you alone ‘on the papers’, or
- more information is needed, and/or
- a hearing is required.
These steps are outlined in more detail below.
1. Read all the material you receive
You should receive a complete file for every application. This will include:
- the application (as filled in by the applicant)
- any information on resource or building consent requirements (from council staff) – these are known as 100(f) certificates
- the inspector’s report
- reports from the Police and the Medical Officer of Health (or their delegate) if they have chosen to report
- copies of any public objections
- a date-stamped floor plan of the intended licensed area clearly identifying the designated areas, if any
- copies of the public notification notices
- the property owner’s approval for an alcohol licence to be operated on their property
- substantive food menus
- names and certificate numbers of certificated managers
- fire evacuation scheme status or exemption.
This information could be provided to you in hard copy or electronically depending on the processes at your council.
2. Identify any real or perceived conflict of interest
Once you have all the material, you can identify whether you have any real or perceived conflict of interest with the application. A conflict of interest can arise when:
- you could benefit financially or otherwise from a DLC decision, either directly or indirectly through someone or something (such as a company) you are connected to
- your duty to the DLC competes with a duty or loyalty you have to another organisation or person.
Examples of real or perceived conflicts of interest for DLC members could include:
- being related to an applicant or any other parties
- being on close personal terms with an applicant or any other parties
- belonging to a group that is a party to a hearing
- having a pre-stated position either supporting or opposing the sale and supply of alcohol generally
- having made public comments (including online) either supporting or opposing the specific premises or parties to the application
- being or knowing the property owner of the site of the premises
- having a relevant financial interest in the applicant, the premises, or any allied or competing business.
You need to be sure that you have no conflict of interest which would make it inappropriate for you to take part in the decision. Even where no actual bias exists, you should be careful to avoid the perception of bias. This includes any situation where it could be perceived that your personal interest or loyalties could affect your decision making.
You must declare any actual or perceived conflict of interest to the secretary of the DLC.
For more detailed information see the section on Conflicts of interest.
If you have no conflict of interest, or you have identified and addressed any conflicts of interest, you can begin to consider the application.
The application should be considered against the criteria set out in the Act, alongside reports from the agencies (the inspector, Police and Medical Officer of Health) and any public objections. Case law will provide guidance about how to consider each of the criteria in the particular context of your case. You will also need to check the application against any local alcohol policies that are in force.
3. Consider the application against the object and criteria in the Act
When you make a decision on matters that come before your DLC (either as a quorum of one making the decision ‘on the papers’ or as a quorum of three at a public hearing) you should consider each case against the object and criteria in the Act.
The object of the Act is that “the sale, supply, and consumption of alcohol should be undertaken safely” and “the harm caused by the excessive or inappropriate consumption of alcohol should be minimised” (s 4(1)). The object of the Act relates to sale, supply and consumption, and the definition of harm relates to inappropriate or excessive consumption. DLCs are able to consider the effects of the consumption of alcohol purchased from a premises even where the alcohol is consumed elsewhere. This is particularly relevant for off-licence applications.
The criteria are set out in the following sections:
- New licences (ss 105 and 106)
- Renewals (ss 105 and 131)
- Special licences (s 142)
- Manager’s certificates (ss 222 and 227)
4. Consider whether the application is consistent, or not, with any LAP that may be in force
A LAP is a set of rules made by a council in consultation with its community about the sale and supply of alcohol in its local area. Local alcohol policies are developed under the Act. As a DLC, you must have regard to any relevant LAP in force in all your decisions about alcohol licences. If you consider that the issue of a licence, or the consequences of the issue of a licence, would be inconsistent with a LAP, you can refuse the licence. You can also issue a licence subject to conditions if you consider that without those conditions the issue of a licence or the consequences of the issue of a licence would be inconsistent with a LAP. If the chairperson believes that additional conditions or a reduction in hours were necessary to comply with the LAP, they would need to put that view to the parties and/or call a hearing to hear evidence on it. You can get further information on local alcohol policies here.
5. Consider agency reports
The inspector must report on all applications, whether or not they oppose. The inspector’s report will usually be the most detailed of the three agency reports.
The Police and the Medical Officer of Health must provide a report within 15 working days of receiving a copy of the application if they have matters in opposition. If no report is received on behalf of these two agencies, the DLC may proceed on the assumption that they have no matters in opposition.
Agency reports should outline the agency’s position on the application and state any matters that they have in opposition. The agency’s position must be based on the relevant criteria set out in the Act: if the agency intends to oppose the application, they should detail the legal grounds for the position. Reports do not have to be comprehensive at this stage but must be sufficient for the applicant to understand the issues they must respond to at a hearing (and/or in negotiation with the inspector). Failure to comply with these requirements will most likely be a breach of natural justice. At any subsequent hearing, the reporting agencies will be confined to the matters raised in their reports filed in terms of (s 103(3)(b)) of the Act. If there are objections to the application and the agencies have information that may assist the DLC in coming to a decision, the agencies should produce the information.
6. Consider any relevant case law
Case law may be introduced in submissions. In making your decisions you will also have to consider relevant case law. You need to be familiar with the case law, understand how it is relevant to your role, and know how to apply it. When you make a decision on matters that come before you, you should consider each case against the criteria set out in the Act. Case law precedents will provide guidance about how to consider each of the criteria in the particular circumstances of your case.
7. Consider whether additional discretionary conditions are required
The Act sets out both mandatory and discretionary conditions for the different types of licences. The DLC may issue any licence subject to any reasonable conditions not inconsistent with the Act. Conditions must be reasonable, relevant and necessary. If they are to be restrictive they must be either put to the parties and ‘imposed’ by consent or based on evidence brought by the affected parties at a hearing.
Restrictive conditions restrict the licensee’s ‘right’ to do something eg, shorter hours, as opposed to ‘permissive’ conditions, which allow them to do something eg, a 30-minute drink-up time included in the licensed hours. Both can be discretionary. You need to ask yourself, “Does this restrict the licensee’s ability to do something?” If the answer is ‘yes’ then they have the right to be heard on the matter before you decide to impose the condition or not. If you decide to impose any ‘restrictive’ conditions, then you should invite submissions on this from the affected parties. Natural justice requires the parties to have the opportunity to provide comments, submissions or evidence to the committee; if not, they may have grounds for appeal.
8. Determine the next steps
There are three options available to you when considering an application. You need to determine whether:
- the application can be approved by you alone ‘on the papers’, or
- more information is needed, and/or
- a hearing is required
When can you make a decision ’on the papers’?
The chair can form a quorum of one and decide the following applications ‘on the papers’ where there are no objections and no matters of opposition raised by agencies:
- An application for a licence or renewal of a licence
- An application for a manager’s certificate or renewal of a manager’s certificate
- Temporary authorities
When can’t you make a decision ‘on the papers’?
The chair cannot decline an application alone and without having heard from the applicant. This goes against natural justice. An applicant is entitled to a hearing if there is a possibility that the application will not be approved. If the DLC is thinking of declining an application, or if it wants to impose conditions outside of those the applicant has applied for, it should set down a hearing. All decisions on applications that are opposed by members of the public must also be heard by the full DLC.
The two mandatory conditions relating to days and hours and the availability of free water can be included when a licence is granted ‘on the papers’. Permissive conditions relating to the requirements under (ss 50-54) can be added. Restrictive conditions cannot be added when a licence is granted ‘on the papers’. If the chair wishes to add any other conditions outside those the applicant has applied for, a hearing is required.
Restrictive conditions restrict the licensee’s ‘right’ to do something eg, shorter hours, as opposed to ‘permissive’ conditions, which allow them to do something eg, a 30-minute drink-up time included in the licensed hours. Both can be discretionary. You need to ask yourself, “Does this restrict the licensee’s ability to do something?” If the answer is ‘yes’ then they have the right to be heard on the matter before you decide to impose the condition or not. If you decide to impose any ‘restrictive’ conditions, you should invite submissions on this from the affected parties. Natural justice requires the parties to have the opportunity to provide comments, submissions or evidence to the committee; if not, they may have grounds for appeal.
When assessing an application ‘on the papers’, the chair should be looking for ‘red flags’. These might include: no certificated managers attached to the application; or the hours sought are outside those set in any LAP in force. When you have finished your preliminary review you should assess the ‘red flags’. You need to decide whether your concerns can be remedied by a minute back to the parties or you should refer the application to a full hearing.
If you decide that a hearing is required, you need to write a minute setting the matter down for hearing. The committee secretary will set the date, time and location of any hearing and select members for the hearing from the council’s list of members. Your minute will set out the dates for disclosure of documents and evidence intending to be relied upon by the parties as well as the dates for any submissions required.
When more information is required
If you need more information you can:
- contact the secretary – for matters where the information already exists or may be held at the council but you have not been provided with it eg, you have not been sent a copy of the lease for the premises. Do not contact the applicant personally. All communication should proceed through the secretary
- issue a minute – where the applicant may need to do extra work to provide the information, for example, where:
- a new manager has not provided any evidence of previous experience, or where agencies have not opposed but raised an issue that means you need more information from the applicant
- the agencies have not opposed but raised an issue that could be addressed before the hearing. You could issue a minute asking the applicant to provide more information or amend their application (which might avoid a hearing) or proceed to a hearing.
When a hearing is required
Where an objection has been filed, the DLC must hold a public hearing unless (s 202):
- the application is withdrawn, or
- the DLC believes the objection is vexatious or based on grounds outside the scope of the Act, or
- the objector does not require a public hearing.
A public hearing is not technically required where there is only agency opposition but no public objection to an application for a licence or manager’s certificate. However, an agency can appeal any subsequent decision if they feel that their right to be heard was not given.
If the DLC is thinking of declining an application, or if it wants to impose conditions outside of those the applicant has applied for, it should set down a hearing. A hearing gives the parties a chance to have their say. After deliberations, the DLC may decline the application or grant it with conditions. At the end of the hearing the chair should advise the parties of the next steps. The chair could give the parties a timeframe for the written decision. Any timeframe should be realistic. Alternatively, the DLC may issue an oral decision at the time of a hearing. It would then follow up with a written decision outlining in full the reasons for the oral decision.
The use of minutes
A minute is the way that the chair (and the DLC) communicates with the parties before a hearing. A minute is an occasional tool, not one to be used daily. The secretary should not write minutes; this is the role of the chair.
The chair might use a minute to:
- seek further information or feedback from the parties (eg, on objectors’ standing)
- indicate a stance on the application (such as the Police view on hours) and seek feedback from the applicant on that. In doing this, the chair must not indicate any pre-determination
- set timeframes for the disclosure of documents.
By using minutes to get further information you may be able to avoid a hearing. For example, agencies may have points in opposition that, if addressed, would remove their opposition. The chair may issue a minute seeking feedback from the applicant on these points. If they can be resolved, a hearing may not be required.
Any information received by the chair as a result of the minute should be provided to all the parties.
Writing your decision ‘on the papers’
The decision of a DLC must be in writing and meet the criteria of (s 211) of the Act. Where the chair is making a decision ‘on the papers’, the chair writes the decision alone.
What you need to do for a decision ‘on the papers’
You must have an open mind about the application. You cannot have a pre-determined view before considering the application. Once you have considered all the information provided to you, you must form a view on the application and then write your decision. You must write your decision yourself; you cannot delegate this to anyone else, including the secretary or a staff member.
You can use templates for decisions, but you must change these to suit your decision. Do not let a template drive your decision making. A template is only a tool to help ensure everything is addressed and to help encourage consistency. Your decision, based on the evidence presented to you, is what matters.
What your decision ‘on the papers’ must cover
The decision must be given in writing and must meet the criteria of (s 211). This means it must include:
- the reasons for the decision
- what reports on the application were received
- the attitude towards the application of every report (in general terms only) eg, “None of the three reporting agencies oppose the application.”
It is also good practice to include a summary of the application eg, “This is an application for an on-licence for a 40-seat daytime café in central Auckland.”
The Act includes both mandatory and discretionary conditions for different types of licences. You can find more detail about conditions in Part 1 of this guide.
Who must receive a copy of the ‘on the papers’ decision?
The DLC must give a copy of the decision to the applicant, Police, inspector and Medical Officer of Health. In practical terms, the secretary of the DLC will forward copies of the decision to these parties. You only need to provide a copy to the secretary.
The committee ‘speaks’ through its decisions. The parties can learn from the decision why the committee did, or did not, impose a certain condition.
Every territorial authority must take all reasonably practicable steps to ensure that copies of all the decisions of its licensing committees are publicly available. Councils often publish decisions of the DLC on their website to give effect to this requirement. If they are not available on the council website, people can ask the council to send them a copy.
When does the decision ‘on the papers’ take effect?
A decision takes effect either:
- on the date stated in the decision, or
- if no date is stated, on the date the decision is given, or
- when there have been objections or oppositions, 10 working days after the notice of decision (thus allowing for appeals).
Even if the DLC has directed that a licence should be issued, the premises are not licensed until the licence has been issued.
The information contained in this online guide is intended as a general guide.
While reasonable measures have been taken to ensure that the information is current and accurate as at October 2019, the Health Promotion Agency cannot accept any liability for any inaccuracy, omission or deficiency in relation to the information. It is not legal advice and you should not rely on anything contained in this guide in any legal proceedings. The information provided does not replace or alter the laws of New Zealand, and you should consult the legislation and obtain your own legal and professional advice, as appropriate. The Health Promotion Agency will not accept liability for any action taken in reliance on anything contained in this online guide.