MEDICAL OFFICER OF HEALTH (FOR THE MANAWATU HEALTH DISTRICT) v G & B HASLER LIMITED [2018] NZHC 1208

MEDICAL OFFICER OF HEALTH (FOR THE MANAWATU HEALTH DISTRICT) v G & B HASLERLIMITED [2018] NZHC 1208 [28 May 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-404-1176[2018] NZHC 1208UNDER the Sale and Supply of Alcohol Act 2012IN THE MATTER of an appeal pursuant to s 162 of the Actagainst a decision of the Alcohol Regulatoryand Licensing Authority in respect ofpremises situated at 8 Barraud Street,Dannevirke, known as "Dannevirke NewWorld"BETWEEN MEDICAL OFFICER OF HEALTH (FORTHE MANAWATU HEALTH DISTRICT)AppellantAND G & B HASLER LIMITEDRespondentAND PAVAN SHARMA RAGLAN LIMITEDAND GENERAL DISTRIBUTORSLIMITEDIntervenersHearing: 31 October and 1 November 2017Appearances: C P Browne and R J Sussock for AppellantI J Thain for RespondentA W Braggins for IntervenerJudgment: 25 May 2018Reissued: 28 May 2018 under r 11.10 of the High Court RulesJUDGMENT OF CLARK JPursuant to r 11.5 of the High Court RulesI direct the delivery time of this judgmentis 4:30 pm on 25 May 2018Introduction [1]Background [3]District Licensing Committee decision [5]Alcohol Regulatory and Licensing Authority decision [10]The appeal [14]Approach to appeal [15]Grounds of appeal [18]Issues for determination [20]Statutory framework [23]Issue one: Is the obligation to "describe" an single alcohol area, satisfied bydelineating the perimeter of the proposed area on a plan of thepremises or must the plan show also the proposed configurationand arrangement of alcohol within the single alcohol area? [32]Appellant's position [32]Respondent's position [35]Assessment [37]Issue two: Does a single-area condition, once imposed under s 112(2)prohibit any changes to the configuration and arrangementwithin the alcohol area? [49]Appellant's position [50]Respondent's position [55]Assessment [56]Issue three: To what extent may conditions under s 117 be imposed on alicence for the purpose of restricting arrangement orconfigurations within the alcohol area? [62]Appellant's position [62]Respondent's position [67]Assessment [69]Conclusion [78]Answers to questions of law [80]Summary [88]Result [91]Introduction[1] The Sale and Supply of Alcohol Act 2012 (the Act, or the 2012 Act) limits theexposure of shoppers in supermarkets and grocery stores to displays and promotionsof alcohol by confining the display and promotion of alcohol to one dedicated areawithin the premises. Such an area is called an "alcohol area". When an off-licence isissued or renewed the licensing body delineates the alcohol area by means of a plan ofthe premises and imposes as a condition of the licence the delineation, or description,of the area to which the display and promotion of alcohol is restricted.1 The conditionis termed a "single-area condition".2[2] The principal issue raised by this appeal concerns the effect of a single-areacondition and whether it prohibits a licensee from adjusting the location and displayof alcohol within the alcohol area.Background[3] Gary Hasler is the operator of New World Dannevirke and the director of therespondent, G & B Hasler Ltd (Hasler). The supermarket is franchised to FoodstuffsNorth Island Ltd. With the anticipated enactment of the 2012 Act the premises werereconfigured to create an alcohol area. The floorplan supplied to the Tararua DistrictLicensing Committee (DLC) with the application for renewal depicted the position ofshelving units within the alcohol area.[4] When the alcohol area was actually fitted out the layout of the shelving unitsdiffered from the depiction in the plan accompanying the application. Instead of beingat right angles to the wall as depicted in the plan, some of the display units werepositioned at an angle. The rearrangement of the shelves and angling of the units wasintended to maximise the use of the floor space within the alcohol area.District Licensing Committee decision[5] Neither the Police nor the licensing inspector opposed Hasler's application forrenewal of the licence. Nor was there any public objection to the application. TheMedical Officer of Health, however, opposed Hasler's application on the grounds theapplication:(a) failed to "limit (so far as is reasonably practicable) the exposure ofshoppers in supermarkets and grocery stores to displays and promotionsof alcohol, and advertisements for alcohol";3 and1 Sale and Supply of Alcohol Act 2012, s 112(2).2 Section 112(3).3 Section 112(1).(b) contravened the prohibition on display or promotion of alcohol outsidethe alcohol area.4[6] The Medical Officer of Health accepted that according to Hasler's new design,the alcohol is restricted to one area, in the corner of the store, but suggested exposureto the alcohol may have been increased by Hasler's rearrangement compared to otherpossible configurations, for example an enclosed aisle. Practically speaking theMedical Officer of Health was concerned that aisle-end displays of alcohol projectedtowards the main body of the supermarket; that signage could be seen from outsidethe alcohol area; and that the angled shelves increased, rather than minimised, theexposure of alcohol products to customers passing by the alcohol area.[7] The Medical Officer of Health recommended to the DLC that the display unitsnot be angled and that the large signs on the wall be removed. The Medical Officerprepared a diagram for the DLC. It is Attachment 1 to this judgment. The solid linesdepict the layout on the floor plan submitted with the application. The superimposeddotted lines represent the layout observed during the Medical Officer of Health's sitevisit.[8] Following a site visit, the DLC concluded the angled position of the shelvesmade "little or no difference" to the exposure of shoppers to alcohol and were not inbreach of s 114(1)(a) of the Act. In relation to advertising, signage at the end of theaisles and on the walls were not in breach of s 112 and 114.5 There was no display orpromotion of, or advertisement for, alcohol on the premises outside the single alcoholarea. The DLC considered, however, the large sign advertising "Ice Cold Beer" at theend of the refrigeration unit, had visual appeal, could be seen from outside the singlealcohol area and consequently "may not comply" with the "spirit of the Act".6 TheDLC required the "Ice Cold Beer" sign to be reduced in size or removed.74 Section 114(1)(a).5 Re G & B Hasler Ltd Tararua DLC 41/DEC/143/2015, 30 October 2015 at 5.6 At 5.7 At 5.[9] Overall, the DLC was satisfied the application met the criteria for the renewalof a licence and granted the renewal.8Alcohol Regulatory and Licensing Authority decision[10] The Medical Officer of Health appealed the DLC's decision to the AlcoholRegulatory and Licensing Authority (the Authority). The issues before the Authorityconcerned the interpretation of ss 112 to 114 of the Act. The Authority formulated thefollowing two issues for its determination:(a) Must a single-area condition imposed pursuant to s 112(2) express morethan the outer perimeter of a single alcohol area and if the answer is'yes' does s 112(1) constrain the rearrangement of shelving anddisplays?9(b) If the answer is 'no' did the DLC err in not imposing a conditionpursuant to s 117 relating to the positioning of shelving and the aisle-end displays? A similar question arose in respect of the illuminatedsignage.10[11] The Medical Officer of Health argued that if a plan is to satisfy s 113(2) of theAct it must show not only the footprint of the premises and the proposed configurationand arrangement of the premises and perimeter of the alcohol area but also theproposed configuration and arrangement of the alcohol area. It would be insufficientfor a plan merely to show the perimeter of the alcohol area without also showing thearrangement of shelving and displays within the alcohol area.[12] The Authority did not agree. The Authority determined s 112(2) requires adescription of the alcohol area relative to the wider premises. The Authority reasonedthat it is this "relative position" of the alcohol area that limits exposure of shoppers tothe display, promotion and advertisement of alcohol in supermarkets and grocery8 At 6.9 Medical Officer of Health v G & B Hasler Ltd [2017] NZARLA PH 169 at [42].10 At [43].stores.11 While the definition of "premises" in s 5 includes any part of the premises,the Authority considered it strained the plain meaning of s 112(2) to read "premises"as meaning the internal space within the alcohol area when s 112(2) is concerned todescribe an alcohol area relative to the premises.12[13] The Authority dismissed the appeal and confirmed the DLC's decision.The appeal[14] The Medical Officer of Health appeals the Authority's decision. Theinterveners were granted leave to appear on a restricted basis.13 The interveners'interest in this appeal arises from what their counsel, Mr Braggins, characterised asthe potential crossover with an appeal filed by Pavan Sharma Raglan Ltd against adecision of the Waikato District Licensing Authority in relation to SuperValue Raglanwhich is presently before the Authority.Approach to appeal[15] Where a party to proceedings before the Authority is dissatisfied with adetermination of the Authority "as being erroneous in point of law, that party mayappeal to the High Court [on that question of law]".14[16] The limitations of an appeal under s 162 of the Act were described by Gendall Jin Christchurch Medical Officer of Health v J & G Vaudrey Ltd:15... an appeal pursuant to s 162 of the Act ... is limited to points of law alone.This Court will not interfere with a decision unless it can be shown that thedecision maker erred in law, accounted for irrelevant matters, failed to accountfor relevant matters, or was plainly wrong. Factual challenges, whether raisedsquarely or obliquely, will not be entertained on appeals of this kind, save tothe extent they are capable of establishing that the decision appealed is plainlywrong. This is necessarily a very high threshold.11 At [50].12 At [51].13 Medical Officer of Health (for the Manawatu Health District) v G & B Hasler Ltd [2017] NZHC1890.14 Sale and Supply of Alcohol Act, s 162(1).15 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2015] NZHC 2749, [2016] 2 NZLR382 at [17].[17] An error of law may arise if the Authority has reached a factual finding that is"so insupportable – so clearly untenable – as to amount to an error law".16 AsGendall J observed a very high threshold is to be met if the appeal seeks to challengefactual matters.Grounds of appeal[18] The Medical Officer of Health's notice of appeal particularises six grounds ofappeal. In summary, it is said the Authority:(a) incorrectly interpreted relevant provisions in the Act;(b) failed to comply with statutory requirements;(c) failed to impose a single-area condition that complied with the purposeof ss 112–114;(d) failed to impose appropriate conditions under s 117;(e) failed to consider whether Hasler's concession regarding removal of the"Ice Cold Beer" sign ought to have been the subject of a condition; and(f) erroneously considered the decision not to impose a condition unders 117 was discretionary.[19] Eight questions of law are said to arise from the grounds of appeal:(a) In describing a single alcohol area under s 113, is the delineation ofthe perimeter of a "blank area" on a plan of the premises sufficienthaving regard to the provisions of s 113(2)(a) and the nature of thedecision required by s 113 as set out in J & C Vaudrey Ltd Ors vCanterbury Medical Officer of Health [2016] NZCA 539 at [33] and[45]?(b) Is the configuration and arrangement of premises important solely forthe purposes of the restriction in s 113(5) or is it also important for thepurposes of the third step in defining a single alcohol area, set out inJ & C Vaudrey Ltd Ors v Canterbury Medical Officer of Health[2016] NZCA 539 at [33] and [45]; namely to consider whether the16 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].description limits, so far as reasonably practicable, the exposure ofshoppers to displays and promotions of alcohol and advertisementsfor alcohol?(c) Does the description of the alcohol area required by s 113 include theproposed configuration and arrangement of the alcohol area itself andnot merely its perimeter such that the description does not permit theapplicant to re-configure or re-arrange the alcohol area as it pleaseswithout approval of the District Licensing Committee or Authority?(d) Would (and, if so, to what extent) the imposition of conditionsrestricting reconfiguration or re-arrangement of the premises,including the single alcohol area, have the effect of altering thedescribed single alcohol area itself as that term was used by the Courtof Appeal in J & C Vaudrey Limited & Ors v Canterbury MedicalOfficer of Health [2016] NZCA 539?(e) Can s 117 be used to impose a condition prohibiting aisle-end displaysin the single alcohol area?(f) If permitted, would conditions like those referred to in (d) and (e)require additional justification beyond the statutory presumption ins 112 that exposure to displays of alcohol products and theirpromotion by shoppers in supermarkets and grocery stores creates arisk of harm?(g) If applicants offer to accept restrictions on the use or configuration ofa proposed alcohol area in the course of the application or its hearingrelating to a single alcohol area condition, should such restrictions bethe subject of an appropriate condition under s 117 when theapplication is granted?(h) Is the failure to do so, having earlier decided that a particular offeredrestriction was appropriate, the exercise of a discretion which cannotbe challenged on appeal?Issues for determination[20] Counsel for the respondent, Mr Thain, suggested the disposition of the appealrequires resolution of only three central issues. Counsel for the appellant, Mr Browne,submitted the first three questions of law relate to the configuration and arrangementof the alcohol area and should be considered together as the underlying issues areintertwined. The remaining five questions of law relate to the imposition of furtherconditions pursuant to s 117 of the Act.[21] Adapting the suggested approaches, I have decided it is most useful to proceedby way of an analysis of the essential issues arising from the appellant's questions oflaw. There are three essential issues:1. Is the obligation to "describe" an alcohol area, satisfied by delineatingthe perimeter of the proposed area on a plan of the premises or must theplan show also the proposed configuration and arrangement of alcoholwithin the alcohol area?2. Does a single-area condition, once imposed under s 112(2) prohibit anychanges to the configuration and arrangement within the alcohol area?3. To what extent may conditions under s 117 be imposed on a licence forthe purpose of restricting arrangement or configurations within thealcohol area?[22] My analysis of these issues will enable me to return, at the end of the analysis,to answer the questions of law posed in the notice of appeal.17Statutory framework[23] Before turning to the questions for determination it is necessary to discuss thelegislative framework.[24] The Sale and Supply of Alcohol Act "signals a new community-orientedapproach incorporating both purpose and object provisions".18 The purpose of the Actis to put in place a new system of control over the sale and supply of alcohol.19 Thecharacteristics of the system are that it is reasonable and its administration helps toachieve the object of the Act.20[25] The object of the Act set out in s 4(1) is that –(a) the sale, supply, and consumption of alcohol should be undertakensafely and responsibly; and(b) the harm caused by the excessive or inappropriate consumption ofalcohol should be minimised.17 The appellant's questions of law are set out above at [19].18 J & C Vaudrey Ltd v Canterbury Medical Officer of Health [2016] NZCA 539, [2017] 2 NZLR334 at [23].19 Sale and Supply of Alcohol Act, s 3(1).20 Section 3(2).[26] Subpart 3 of Part 2 of the Act deals with applications for on-licences, off-licences and club licences. An application is filed with the licensing committee in thedistrict in which the relevant premises is situated.21 The application must comply withthe requirements of s 100 and is to be in the form prescribed in the schedule to the Saleand Supply of Alcohol Regulations 2013. The Regulations specify documents whichmust accompany an application. One such document is a:22 Floor plan showing any proposed permitted area for display and promotionof alcohol, and any proposed sub-areas.[27] On receiving an application for a licence the secretary of the relevant licensingcommittee must send to the Police, the relevant licensing inspector and MedicalOfficer of Health, a copy of the application and attachments.23 The Police and MedicalOfficers must inquire into the application. The opportunity these reporting agencieshave to oppose the application recognises:24[their unique placement] to put before the Authority relevant and specialisedevidence which may assist [a decision-maker] in discharging its functionsunder the Act.[28] The criteria to which the licensing committee or authority must have regardwhen determining applications are prescribed in s 105 (for the issue of licences) ands 131 (in the case of renewals).[29] Where an off-licence is to be issued or renewed for supermarkets or grocerystores the decision-maker must impose a condition relating to the area in which alcoholis to be displayed and promoted:112 Compulsory conditions relating to display and promotion ofalcohol in single area in supermarkets and grocery stores(1) The purpose of this section and sections 113 and 114 is to limit (so faras is reasonably practicable) the exposure of shoppers in supermarketsand grocery stores to displays and promotions of alcohol, andadvertisements for alcohol.21 Section 99.22 Form 4 in the schedule to the Sale and Supply of Alcohol Regulations 2013.23 Sale and Supply of Alcohol Act, s 103.24 Auckland Medical Officer of Health v Birthcare Auckland Ltd [2015] NZHC 2689, [2016] NZAR287 at [110].(2) The licensing authority or licensing committee concerned must ensurethat, when it issues or renews an off-licence for premises that are asupermarket or grocery store, it imposes on the licence a conditiondescribing one area within the premises as a permitted area for thedisplay and promotion of alcohol.(3) On the renewal of an off-licence for premises that are a supermarketor grocery store, any single-area condition imposed when the licencewas issued (or was last renewed) expires.(4) Subsection (3) is subject to section 115(4).[30] Section 113 prescribes the way in which an alcohol area must be delineated.The Act uses the expression "describe".113 Describing alcohol areas(1) The licensing authority or licensing committee concerned must haveregard to section 112(1)—(a) when describing an alcohol area; and(b) when taking any other action under this section; and(c) when forming any opinion for the purposes of this section.(2) An alcohol area must be described by means of a plan of the footprintof the premises concerned (or, in the case of premises on more thanone level, a plan of the footprint of the level on which the area is or isto be located) showing—(a) the proposed configuration and arrangement (or, in the caseof the renewal of a licence, the existing or any proposed newconfiguration and arrangement) of the premises or level; and(b) the perimeter of the area.(4) The perimeter of the area or any sub-area may pass through theproposed locations (or, in the case of the renewal of a licence, anyexisting or proposed new locations) of any display units.(5) The authority or committee must describe an alcohol area within thepremises only if, in its opinion,—(a) it is a single area; and(b) the premises are (or will be) so configured and arranged thatthe area does not contain any part of (or all of)—(i) any area of the premises through which the mostdirect pedestrian route between any entrance to thepremises and the main body of the premises passes;or(ii) any area of the premises through which the mostdirect pedestrian route between the main body of thepremises and any general point of sale passes.(6) For the purposes of this section and section 114, general point of salemeans anything that is—(a) a checkout, till, or cashbox where goods other than alcohol(or alcohol and goods other than alcohol) may be bought; or(b) a device by which goods other than alcohol (or alcohol andgoods other than alcohol) may be paid for without theinvolvement of any person other than the buyer.[31] The consequences and effect of a single-area condition, once imposed on alicence, are set out in s 114:114 Effect of single-area conditions(1) Every single-area condition takes effect as a condition that thelicensee of the premises concerned must ensure that—(a) no display or promotion of, or advertisement for, alcoholoccurs on the premises at any place outside the alcohol area;and(b) the premises are not reconfigured or rearranged in a waywhose effect (whether intentional or not) is that the alcoholarea contains—(i) any area of the premises through which the mostdirect pedestrian route between any entrance to thepremises and the main body of the premises passes;or(ii) any area of the premises through which the mostdirect pedestrian route between the main body of thepremises and any general point of sale passes.(2) If the alcohol area has not been so described that it is divided into 2or 3 sub-areas, a single-area condition also takes effect as a conditionthat the licensee of the premises concerned must ensure that no displayor promotion of, or advertisement for, a product that is not alcoholoccurs on the premises at any place inside the alcohol area.(4A) The effect of a single-area condition set out in subsections (1) to (4)does not apply in relation to the display or promotion of, or theadvertisement for, low-alcohol or non-alcoholic beer, wine, or mead.(5) For the purposes of this section,—(b) neither of the following is a promotion of alcohol:(i) a sign (consistent with other general signage in thesupermarket or grocery store concerned) givingdirections to, or describing the location of, an areawhere alcohol is available for purchase:(ii) a newspaper, magazine, or catalogue containing apromotion of or advertisement for alcohol; and(b) described means described under section 113; and(c) designated means designated under section 113(3)(b); and(d) low-alcohol or non-alcoholic beer, wine, or mead means aproduct that is specified in section 58(1)(a) to (d) but that isnot alcohol.Issue one: Is the obligation to "describe" an alcohol area, satisfied by delineatingthe perimeter of the proposed area on a plan of the premises or must the planshow also the proposed configuration and arrangement of alcohol within thealcohol area?Appellant's position[32] The Medical Officer's case is that the requirement in s 113(2) of the Act toshow configuration and arrangement includes the alcohol area. The Authority'sreasoning does not address the actual language of the statute.[33] The internal configuration of the alcohol area is required to be shown on theplan. The appellant derives support for his position from s 113(4) which permits theperimeter of the area to pass through the location or proposed location of any displayunits. Mr Browne submitted if the internal configuration of the alcohol area were notincluded on the plan, s 113(4) would have no application.[34] Mr Browne submitted J & C Vaudrey contains "an inherent presumption thatthe configuration of the entire premises would be shown".25 The floor plan requiredby Form 4 of the Sale and Supply of Alcohol Regulations to be attached to anapplication does not expressly require configuration and arrangement within the25 Citing J & C Vaudrey Ltd v Canterbury Medical Officer of Health, above n 18, at [47].alcohol area. Yet the configuration and arrangement of the premises must include theconfiguration of the alcohol area because:(a) s 113(2) requires the configuration of the premises to be shown on theplan by which the licensing body describes the alcohol area; and(b) the configuration of the alcohol area is relevant to the evaluativeexercise required of the licensing body when imposing a single-areacondition.Respondent's position[35] The respondent's position is that a single-area condition operates only torestrict to a single place or location, in a supermarket or grocery store, displays andpromotions of and advertisements for alcohol. A single-area condition does nototherwise restrict or control the displays, promotions or advertisements within thealcohol area.[36] The respondent relies on the words of s 112(2) and 113(2) which require analcohol area to be described by means of a plan of the footprint of the premises andthe proposed configuration and arrangement of the premises. Relying on J & CVaudrey, Mr Thain submitted once an off-licence is granted the licensee may alter theconfiguration and arrangement of the premises provided the outcome is not prohibitedby s 114(1)(b).26Assessment[37] The Court of Appeal's review of the context in which the Sale of Liquor Act1989 was repealed and replaced with the 2012 Act is helpful in shedding light on theinterpretation of the provisions engaged by this appeal.27[38] The catalyst for reform was the release of the Law Commission's reportAlcohol in our lives: curbing the harm in 2010.28 At the time there were no specific26 At [53].27 At [14]–[21].28 Law Commission Alcohol in our lives: curbing the harm (NZLC R 144, 2010).rules regarding the placement of alcohol in supermarkets. The placement of alcoholin supermarkets was of concern because its placement impacted price and availabilityboth said to be key factors affecting levels of alcohol-related harm.29 The LawCommission reported that the placement strategy to ensure alcohol is highly visibleincreases the likelihood of casual impulse purchases of alcohol and places unhealthypressure on vulnerable groups such as children and young people and those withalcohol dependency problems.30[39] While accepting a single-area restriction would constitute an interference inthe way supermarkets operate, the Law Commission considered a new Act restrictingthe placement of alcohol to a single area in stores would represent a paradigm shift inthe way alcohol is sold in New Zealand.31 A single-area restriction would still allowfor greater or lesser amounts of shelf or floor space to be used for alcohol so long asit remained in a single area. Product placement restrictions in supermarkets is notwithout precedent particularly (referring to the restrictions on cigarette placement).32The Law Commission proposed a "single-area restriction" similar to the requirementsof the Victorian legislation:33This would seem to be a sufficient control on the placement of alcohol withina supermarket. To impose a greater degree of separation, similar to that inNew South Wales, would appear to impose too great a cost on retailers at thisstage. The law would restrict the display of all alcohol products to one area.Conceivably this could be more than one aisle if the supermarket required this.However, there should be no displays of alcohol products at the supermarket'sentrance or at checkouts, as these positions seem to be areas of particularvulnerability for supermarket patrons.[40] While the original form of the Alcohol Reform Bill 2010 did not contain asingle-area restriction in relation to supermarkets the Justice and Electoral Committeeresponded to public submissions by recommending a new clause requiring the displayof alcohol in only one area of a store, that one area not being in a prominent area ofthe store, and restricting alcohol advertising and promotions to that designated area.34What is now s 113(5), restricting the alcohol area to a part of the premises not on a29 At [8.82].30 At [8.87]–[8.88].31 At [8.95].32 At [8.96].33 At [8.98].34 Alcohol Reform Bill 2010 (236–2) (select committee report) at 4.typical pedestrian route (for example to the checkout, or between an entrance and themain body of the premises) had its genesis in the Law Commission's location proposal,and then the Select Committee's location recommendation.[41] Thus, the intention, enacted in ss 112–114, is to restrict the location of thealcohol area. By restricting displays, promotions and advertisements to one dedicatedarea, away from the prominent areas of the store, the exposure of shoppers to alcoholhas been restricted as intended by the legislature.[42] Turning to the relevant provisions, the starting point is the obligation ins 112(2) on the licensing body when issuing or renewing a licence. The licensing bodymust:[impose] on the licence a condition describing one area within the premisesas a permitted area for the display and promotion of alcohol.[43] By operation of s 113(2):an alcohol area must be described by means of a plan of the footprint of thepremises showing—35(a) the proposed configuration and arrangement (or, in the caseof the renewal of a licence, the existing or any proposed newconfiguration and arrangement) of the premises or level; and(b) the perimeter of the area.[44] Subsection (2) draws a clear distinction between the requirement for a plan ofthe footprint of premises showing the configuration and arrangement of the premises,and the bare requirement to show the perimeter of the alcohol area. The reason for thedistinction is obvious:(a) An alcohol area must be delineated so that it avoids:• any part of the premises through which the most directpedestrian route between any entrance to the premises and the35 As the respondent's premises are on one level I leave to one side the requirements in respect ofpremises on more than one level.main body of the premises passes;36 and• any part of the most direct pedestrian route between the mainbody of the premises and any general point of sale.37(b) The configuration and arrangement of the premises must be providedwith an application for a licence because those details are relevant tothe licensing authority's determination of the application.(c) If ignorant of the configuration and arrangement of the premises – theentrance, the main body of the premises, the pedestrian route throughthe main body of the store – a licensing body cannot form thenecessary opinion about whether the alcohol area contains anyproscribed area of the premises. While "main body" is not defined, itseems to me that if a shopper is able to enter the store, select items forpurchase, and take them to the point of sale without passing througha delineated alcohol area, the shopper has taken "the most directpedestrian route between any entrance and the main body of thepremises" and "between the main body of the premises and anygeneral point of sale passes".38(d) Plans submitted with applications will highlight the checkoutcounters, the entrance to the store, and delineate the alcohol area.They may also describe the nature of the goods available from mainareas of the store (such as aisles of "frozen food"), and the nature ofgoods displayed adjacent or near to the alcohol area. The licensingauthority will be able to assess from the configuration and physicalarrangement of the premises detailed on the plan, whether the alcoholarea is in a proscribed part of the premises.(e) Manifestly, the layout of shelving and alcohol within the alcohol area,36 Sale and Supply of Alcohol Act, s 113(5)(b)(i).37 Section 113(5)(b)(ii).38 Section 113(5)(b)(i)-(ii).has no bearing on the decision to position the alcohol area. Sections112–114 are concerned not with the arrangement of shelving ordisplays within the area but limiting the exposure of shoppers todisplays of alcohol and that is achieved (principally) by ensuring itsperimeter is not in an impermissible section of the store. It is for thisreason that the bare perimeter of the alcohol area is to be shown onthe plan accompanying the licence application. Details ofconfiguration and arrangement such as those required for the premisesare inapplicable to the space within an alcohol area.[45] The point is illustrated by the actual plan of the Dannevirke New Worldpremises which the respondent submitted with its application for renewal. A copy ofthat plan is Attachment 2 to this judgment. The perimeter of the alcohol area isdescribed as required by s 113(2)(b). As can be seen, some shelving is indicated but,in my view, the plan would have been acceptable without the indicative layout. Thereis no requirement in the Act or the Regulations for that detail.[46] The appellant relies on the definition of "premises" to support his contentionthat a plan showing the configuration and arrangement of the alcohol area is required.Premises is defined to include "part of any premises".39 While that may be so it doesnot detract from the fact that throughout the Act, and more particularly in s 113(2)"premises" is used in contra-distinction to "area". That distinction continues tooperate in the context of the legislative requirement for a plan to show the proposedconfiguration and arrangement of the premises. Had the intention been to require theconfiguration and arrangement of the alcohol area then subs 113(2)(a) would havebeen drafted to include the area. For example:An alcohol area must be described by means of a plan of the footprint of thepremises concerned showing —(a) the proposed configuration and arrangement of the premises and the area.[47] Further, where the intention is to regulate the environment within the alcoholarea, that is made plain with the use of different language. Section 114 for example39 Sale and Supply of Alcohol Act, s 5 definition of "premises".makes the distinction between displays of alcohol "outside" and "inside" the alcoholarea.40[48] It follows from the foregoing reasoning that the obligation to describe analcohol area, which is imposed by s 113(2), is satisfied by delineating the perimeter ofthe proposed area on a plan of the premises. It is not necessary that the plan show theproposed configuration and arrangement of alcohol within the alcohol area.Issue two: Does a single-area condition, once imposed under s 112(2) prohibit anychanges to the configuration and arrangement within the alcohol area?[49] The broad issue concerns the freedom of a licensee to arrange shelving, displayunits and such like within the alcohol area after a single-area condition has beenimposed on the licence.Appellant's position[50] The appellant's position is that following the imposition of a single-areacondition, a licensee may not reconfigure or rearrange the alcohol area withoutamendment of the single-area condition. The appellant seeks a declaration to thateffect.[51] In support of its view the appellant submits the Authority misinterpreted theCourt of Appeal's decision in J & C Vaudrey.41 The appellant's position is groundedin his view that the single-area condition includes both the perimeter and its internallayout meaning the licensee cannot change the layout of the area without the approvalof a licensing body. A contrary view would mean avoidance of what the appellantdescribes as "a third step in the evaluative exercise". That third step is said to requirean assessment of the level of exposure created by the internal layout of the area whichconstitutes part of the reason for requiring a description of the layout not simply itslocation.40 Section 114(2).41 J & C Vaudrey Ltd v Canterbury Medical Officer of Health, above n 18.[52] A licensee would be able to modify the internal configuration of the single-area by applying to vary conditions under s 120 of the Act.[53] If the internal configuration of the single-area was not part of the descriptionof the single-area, the licensee could reconfigure the internal area in a way that defeatsthe s 112(1) purpose of limiting exposure.[54] The appellant further submitted if the internal configuration is not part of thedescription of the single-area and is able to be changed at the whim of the licensee:the result may be declined applications or the imposition of complexconditions under s 117 in which the DLC or ARLA attempts to predict andprohibit unacceptable reconfigurations.Respondent's position[55] The respondent's position is that a single-area condition is only a restriction toa single place or location in a supermarket or grocery store and does not otherwiserestrict or control displays, promotions or advertisements. In reliance on the effect ofs 114(1) of the Act, as analysed in J & C Vaudrey,42 the respondent submits even if theplan were to show an existing or proposed layout of the alcohol area the licensee wouldnot be restricted to that layout.Assessment[56] The effect of a single-area condition is described in s 114. Every single-areacondition takes effect as a condition that the licensee must ensure there is no displayor promotion of, or advertisement for, alcohol outside the alcohol area and thepremises are not reconfigured or rearranged in a way that defeats s 113(5).43 That is,the alcohol area is not to contain any part of what I have referred to as the proscribedareas.[57] In my view ss 113 and 114(1) reflect the respective and complementaryobligations of the decision-makers and licensees. Section 113 imposes on thedecision-maker an obligation:42 J & C Vaudrey Ltd v Canterbury Medical Officer of Health, above n 18.43 Sale and Supply of Alcohol Act, s 114(1).(a) to describe an alcohol area by reference to a plan of the footprint of thepremises showing the configuration and arrangement of the premises,and the perimeter of the alcohol area;44(b) to ensure, when describing an alcohol area, that it meets theprerequisites of location and placement required by s 113(5)(b); and(c) to have regard for the s 112(1) purpose (to limit so far as is reasonablypracticable the exposure of shoppers to displays and promotions ofalcohol) when describing an alcohol area.45[58] Once that area is described and becomes a condition of the licence, theobligation on the licensee mirrors the condition of the licence. The licensee mustensure:46(a) there are no displays, promotions or advertisements for alcohol on thepremises outside the alcohol area; and(b) the premises are not to be reconfigured or rearranged so as to breachthe requirements of placement and location of the area imposed bys 113(5)(b).[59] The respondent referred to the "post-grant flexibility" which a licensee has toalter the configuration and arrangement of the premises. The Court of Appeal said:47We agree that the effect of s 114(1) is that, once an off-licence is granted, theappellant may alter the configuration and arrangement of the premisesprovided the outcome is not as prohibited by s 114(1)(b).[60] The Court of Appeal's analysis of s 114(b), and the conclusion which I havejust set out, was in the context of a different issue. The question was whether alicensing body could describe a single area that was materially different from an areaproposed by an applicant. In that context, the Court of Appeal concluded the "post-44 Section 113(2).45 Section 113(1).46 Section 114(1).47 J & C Vaudrey Ltd v Canterbury Medical Officer of Health, above n 18, at [53].grant flexibility" inherent in s 114(1) meant the licensing body can consider a proposedperimeter of a single area beyond that proposed by an applicant.48 The Court ofAppeal's discussion has no material bearing on the question whether an alcohol areacan be reconfigured once it has been made the subject of a single-area condition. Thatsaid, I agree with the Authority, that the post-grant flexibility that enables a licenseeto reconfigure or rearrange premises (without breaching the condition) does notimpliedly prevent a licensee from reconfiguring the alcohol area.49[61] The Authority correctly understood the legal effect of a single-area condition.The Authority's understanding and interpretation is consistent with the legislativematerials which the Court of Appeal found helpful and relevant to an analysis of theseprovisions. At all stages, including enactment of the single-area provisions, theintention has been to locate the alcohol area at a physical distance from shoppers.There has been no intention to control the configuration or arrangement within thatarea. Nor do the statutory provisions themselves contemplate that degree ofinterference. It follows that a single-area condition, of itself, does not prohibit changesto the way in which alcohol is displayed, promoted and advertised within the alcoholarea.Issue three: To what extent may conditions under s 117 be imposed on a licencefor the purpose of restricting arrangement or configurations within the alcoholarea?Appellant's position[62] The appellant's particular interest is with the potential of a decision-maker torestrict reconfiguration or rearrangement of an alcohol area and with prohibiting aisle-end displays in the alcohol area. The appellant relies on the broad conferral ofdiscretionary power in s 117 that permits a licensing body to issue a licence subject toany reasonable condition not inconsistent with the Act.[63] Mr Browne submitted the Authority's approach to its power to impose a s 117condition was in error because the following conclusion demonstrates its concern was48 At [54].49 Medical Officer of Health v G & B Hasler, above n 9, at [53].limited to the locational aspects of the alcohol area rather than to limiting exposure asfar as reasonably practicable:50It follows from what we have already said, that as the alcohol area conditionis to identify where in the premises alcohol may be displayed and promoted,thereby giving effect to the purpose set out in s 112(1), the licensee is entitledto use all of the space within the alcohol area, subject to any conditionsimposed which do not have the effect of altering the area.[64] The Authority erred in regarding conditions restricting configuration andarrangement as "altering" the single-area condition.[65] Both the High Court and Court of Appeal decisions in J & C Vaudrey suggestthat, wherever the particular circumstances of the licence application warrant it,conditions may be imposed in addition to the single-area condition, providing s 117conditions do not have the effect of altering the location or perimeter of the alcoholarea.[66] Finally, Mr Browne submitted that if the internal configuration of the alcoholarea is part of the condition and therefore unable to be changed, that outcome willaffect the scope of s 117 conditions. If, on the other hand, all that a plan must show isthe proposed configuration and arrangement of the premises and not the alcohol area,as a matter of logic s 117 is enlarged.Respondent's position[67] Mr Thain submitted that it is not correct to suggest, as the appellant suggests,that a single-area condition is merely a perimeter condition. While the role of alicensing body is to describe only the perimeter of an alcohol area for the purposes ofa single-area condition, the remaining terms, and effect, of the condition are asprescribed in s 114 of the Act. It is the single-area condition and its effect which cannotbe altered by a s 117 condition.[68] The inability to alter a single-area condition by a s 117 condition follows fromthe terms of s 117 itself which prohibits conditions inconsistent with the Act. Given50 At [55].ss 112 to 114 constitute a code conditions may not be made if they are inconsistentwith ss 112 or 114.Assessment[69] Following the discussion of s 117 in Vaudrey the following characteristics ofthe power to impose a condition under s 117 are uncontentious:(a) Section 117 confers a broad power to impose conditions.51(b) The versatility of the power is amplified by s 118 which envisagesdifferent conditions applying to different parts of premises.52(c) In view of the breadth of the power in s 117 it may be open to alicensing body to impose conditions under s 117 relating to matterssuch as displays within a single alcohol area if that would advance theobject of the Act as set out in s 4.53(d) Conditions may not be imposed under s 117 that have the effect ofaltering the single-area condition imposed under s 112(2).54[70] The real question, and the issue at the heart of the appellant's concern, iswhether the Authority failed to impose appropriate conditions under s 117 because iterroneously considered any conditions restricting configuration or arrangement of thealcohol area would have "the effect of altering the area". In particular, the appellantseeks conditions prohibiting aisle-end displays in the alcohol area. For convenience Irefer to such conditions as "aisle-end conditions".[71] Notwithstanding the scope of the power conferred by s 117, I would regard asimpermissible the imposition of aisle-end conditions as a matter of course. Conditionsimposed under s 117 must relate to a particular application and the issue of a particularlicence. It may very well be that, from time to time, the licensing body considers it is51 J & C Vaudrey Ltd v Canterbury Medical Officer of Health, above n 18, at [68].52 At [68].53 At [67] and [69].54 At [70].necessary to impose conditions, including a condition restricting aisle-end displays inthe alcohol area, but the licensing body should be satisfied the condition is reasonablein the circumstances. It would not be reasonable to take a view that aisle-end displaysof alcohol, of themselves, offend the purpose of the Act and for the licensing bodiesto exercise what is effectively their judicial power for a legislative purpose namely tolegislate aisle-end displays out of existence by way of imposition of conditions.55 Thestatutory purpose of limiting, so far as is reasonably practicable, the exposure ofshoppers to displays and promotions of alcohol is achieved by the enactment of ss 112to 114.[72] I add this observation. There is no question that, in many respects, the reformsenacted in the 2012 Act were politically and socially charged. The provisions relatingto the age of purchase, for example, were subject to a conscience vote.[73] The point is, Parliament went only so far. There is a conspicuous difference,for example, between the 2012 Act and the Smoke-free Environments Act 1990 whichprohibits tobacco products from being visible from any point within or outside thepremises. All tobacco products on the premises must be stored to ensure they remainout of sight.56 The Law Commission reported that in many of the larger public forumsthere was strong support for applying the tobacco "smoke free" model to alcohol andthe Law Commission considered that approach.57[74] The Alcohol Reform Bill 2010 ultimately reflected politically acceptablecompromises and politically feasible restrictions on advertising. The problematicplacement strategy which ensured alcohol was highly visible, and increased thelikelihood of casual impulse purchases58 was addressed by enacting a locationrestriction so that every off-licence would be issued subject to a condition describingone part of the premises as a permitted area for the display and promotion of alcohol.5955 Cf Carr v State of Western Australia [2007] HCA 47, (2007) 232 CLR 138 at [5].56 Smoke-free Environments Act 1990, s 23A.57 Law Commission, above n 28, at [19.125].58 At [8.87].59 Sale and Supply of Alcohol Act, s 112.[75] The legislation does not place upon ss 112 to 114 the full burden for regulatingthe sale and supply of alcohol in order to achieve the object of the Act. Theseprovisions do not call for an interpretation, or application, that exaggerates theirintended purpose and effect. The Act's regulation of sale and supply is effectedthrough many other provisions which, for example: restrict the kinds of alcoholicproducts that can be sold in supermarkets and grocery shops;60 regulate tradinghours;61 confer power to impose discretionary and compulsory conditions relating tooff-licences, for example prescribing the people or kinds of people to whom alcoholmay be sold or supplied;62 and create offences of irresponsible promotion of alcohol,63or sale or supply of alcohol to minors,64 and so on.[76] Providing a licensee's display and promotion of alcohol is consistent with thepurpose of the single-area provisions — to limit so far as is reasonably practicable, theexposure of shoppers to alcohol — there is unlikely to be any reasonable basis for theimposition of conditions to further restrict the exposure. That, however, is a matterfor the opinion of the licensing body. The expert opinions of the reporting agencieswill be valuable to the licensing body but ultimately "it is a matter for the decision-maker to consider whether and to what extent the proposed single-area limits, so faras reasonably practicable, shoppers' exposure to alcohol displays, promotions andadvertisements".65[77] In this case the DLC made a site visit to the premises and formed the view theposition of the shelves made little or no difference to the exposure of alcohol and theirarrangement was not in breach of the Act. Having considered the DLC's applicationof the relevant provisions and principles to the facts the Authority confirmed theDLC's decision. While the Authority considered itself constrained in the use of a s 117condition relating to aisle-end displays, the factual assessment of the DLC means itsdecision not to impose a s 117 condition was within its discretion.6660 Section 58.61 Sections 43–49.62 Section 116.63 Section 237.64 Section 239.65 J & C Vaudrey Ltd v Canterbury Medical Officer of Health, above n 18, at [44].66 Medical Officer of Health v G & B Hasler Ltd, above n 9, at [58].Conclusion[78] My analysis and determination of these three issues is sufficient to dispose ofthe appeal. The appellant seeks declarations in respect of each of the eight questionsof law he has formulated. Mr Thain correctly observed the appeal is not a declaratoryjudgment proceeding and the Court cannot be expected to give advisory opinions. Aswell, the Authority made factual findings which are not challenged.[79] I will proceed to answer the questions it is appropriate to answer in light of thenature of the appeal (being on a point of law) and in light of the conclusions I havereached.Answers to questions of lawQuestion A: In describing a single alcohol area under s 113, is the delineation of theperimeter of a "blank area" on a plan of the premises sufficient having regard to theprovisions of s 113(2)(a) and the nature of the decision required by s 113 as set out inJ & C Vaudrey Ltd Ors v Canterbury Medical Officer of Health [2016] NZCA 539 at[33] and [45]?[80] Yes. The obligation to describe an alcohol area, which is imposed by s 113(2),is satisfied by delineating the perimeter of the proposed area on a plan of the premises.It is not necessary that the plan show the proposed layout and arrangement of displaysof alcohol within the alcohol area.Question B: Is the configuration and arrangement of premises important solely for thepurposes of the restriction in s 113(5) or is it also important for the purposes of thethird step in defining a single alcohol area, set out in J & C Vaudrey Ltd Ors vCanterbury Medical Officer of Health [2016] NZCA 539 at [33] and [45]; namely toconsider whether the description limits, so far as reasonably practicable, the exposureof shoppers to displays and promotions of alcohol and advertisements for alcohol?[81] Yes. The configuration and arrangement of premises is important also for thepurpose of assessing whether the delineated alcohol area limits, so far as reasonablypracticable, the exposure of shoppers to displays and promotions of alcohol andadvertisements for alcohol.Question C: Does the description of the alcohol area required by s 113 include theproposed configuration and arrangement of the alcohol area itself and not merely itsperimeter such that the description does not permit the applicant to re-configure orre-arrange the alcohol area as it pleases without approval of the District LicensingCommittee or Authority?[82] To the extent the s 113(2) concepts of "configuration and arrangement" applyto an alcohol area, the description of the alcohol area is not required to include theconfiguration and arrangement within the area itself. If the description required bys 113(2) does include such detail, the licensee remains free to rearrange the areawithout the approval of the licensing body. The licensing body, of course, retains thediscretion conferred on it to impose conditions for the purpose of limiting, so far as isreasonably practicable, the exposure of shoppers to displays and promotions of alcoholand advertisements for alcohol.Question D: Would (and, if so, to what extent) the imposition of conditions restrictingreconfiguration or re-arrangement of the premises, including the single alcohol area,have the effect of altering the described single alcohol area itself as that term was usedby the Court of Appeal in J & C Vaudrey Limited & Ors v Canterbury Medical Officerof Health [2016] NZCA 539?[83] This question does not arise from the decision under appeal and does nottherefore require to be answered.Question E: Can s 117 be used to impose a condition prohibiting aisle-end displaysin the single alcohol area?[84] Yes. In the circumstances which I have set out in [71] conditions can beimposed prohibiting aisle-end displays in the alcohol area.Question F: If permitted, would conditions like those referred to in (d) and (e) requireadditional justification beyond the statutory presumption in s 112 that exposure todisplays of alcohol products and their promotion by shoppers in supermarkets andgrocery stores creates a risk of harm?[85] In light of my answer to question E this question does not require to beanswered.Question G: If applicants offer to accept restrictions on the use or configuration of aproposed alcohol area in the course of the application or its hearing relating to asingle alcohol area condition, should such restrictions be the subject of an appropriatecondition under s 117 when the application is granted?[86] The question does not arise. In its decision the DLC recorded its requirementfor the applicant to remove or alter the "Ice Cold Beer Sign" and asked the Inspectorto ensure compliance with the request. The Authority noted Hasler's agreement toremove the sign and that the DLC had proceeded on that basis rather than imposing acondition. The Authority was correct in its conclusion that a condition relating tosignage would not be inconsistent with the Act but it was within the discretion of theDLC to proceed as it did. It was not obliged to make a condition. The Authority'sapproach was not in error.Question H: Is the failure to do so, having earlier decided that a particular offeredrestriction was appropriate, the exercise of a discretion which cannot be challengedon appeal?[87] The non-imposition of a condition in this case was not in error. The legalvulnerability of future "failures" to exercise a discretion must be assessed if and whenthose occasions arise.Summary[88] The obligation to "describe" an alcohol area is satisfied by delineating theperimeter of the proposed area on a plan of the premises. The plan need not showdetails of the way in which alcohol is to be arranged and displayed within the alcoholarea. The licensing body must know the configuration and arrangement of the premisesin order to determine whether the alcohol area contains any part of a proscribed areaof the premises. The proposed layout of displays (if any) within the alcohol area hasno bearing on the decision to position the area.[89] A single-area condition, once imposed under s 112(2) does not, of itself,constrain a licensee from making changes to the way in which alcohol is displayedwithin the alcohol area providing, always, that exposure of shoppers to displays ofalcohol is limited so far as is reasonably practicable.[90] Conditions may be imposed on a licence pursuant to s 117 for the purpose ofrestricting aisle-end displays in the alcohol area but the licensing body should besatisfied in each case that the condition is reasonable in the circumstances of theparticular application. It would be impermissible to use the discretion to imposeconditions as a de facto legislative measure.Result[91] The appeal is dismissed._____________________________Karen Clark JSolicitors:Wilson Harle, Auckland for AppellantDLA Piper, Auckland for RespondentBerry Simons, Auckland for Intervener