THE MEDICAL OFFICER OF HEALTH (WELLINGTON REGION) v LION LIQUOR RETAIL LIMITED [2018] NZHC 1123

THE MEDICAL OFFICER OF HEALTH (WELLINGTON REGION) v LION LIQUOR RETAIL LIMITED[2018] NZHC 1123 [18 May 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-506[2018] NZHC 1123IN THE MATTER of an appeal under s 162 of the Sale andSupply of Alcohol Act 2012BETWEEN THE MEDICAL OFFICER OF HEALTH(WELLINGTON REGION)AppellantAND LION LIQUOR RETAIL LIMITEDRespondentNEW ZEALAND POLICEInterested PartyHearing: 26 October 2017Appearances: G Allan, D R La Hood and B Curtis for AppellantA A Arthur-Young and M J Doesburg for RespondentJudgment: 18 May 2018Recalled andReissued:21 May 2018JUDGMENT OF CLARK JPursuant to r 11.5 of the High Court Rules I directthe delivery time of this judgment is4:00 pm on 18 May 2018Introduction[1] A short distance from Courtenay Place, on the edge of Wellington'sentertainment precinct, Lion Liquor Retail Ltd (Lion) operates an off-licence bottlestore known as Liquor King Kent Terrace. As permitted by the conditions of thelicence Liquor King operated between 8.00 am and 11.00 pm seven days a week.When Lion applied to renew the licence in 2016 the Wellington District LicensingCommittee (DLC) renewed the licence subject to a condition that alcohol could not besold or supplied on Fridays or Saturdays after 9.00 pm.1[2] Lion appealed to the Alcohol Regulatory Licensing Authority (Authority). TheAuthority allowed the appeal and modified the condition to permit Lion to sell alcoholuntil 11.00 pm on Fridays and Saturdays.2[3] The Medical Officer of Health3 and New Zealand Police challenge theAuthority's decision.4 They say the Authority failed to recognise the evaluative andinquisitorial approach required of it by the Sale and Supply of Alcohol Act 2012 (theAct or 2012 Act) and that it erred in its approach to the application which was forrenewal of a licence rather than an application for a licence. Further, it is said theAuthority's decision is "unsupportable" on the evidence and is plainly wrong.[4] Two principal issues are raised by the appeal:(a) whether the Authority applied the correct legal test in setting the tradinghours condition; and(b) whether the Authority erred in its conclusion there was an insufficientevidential basis to maintain the hours condition.1 Re Lion Liquor Retail Ltd [2016] NZDLCWN 1572 at 51.2 Lion Liquor Retail Ltd v Medical Officer of Health [2017] NZARLA PH 170 at [72].3 The Medical Officer of Health, Wellington Region, is Dr Stephen Palmer.4 The Medical Officer of Health and New Zealand Police are, together, referred to as the "reportingagencies".Background[5] Lion is the retail arm of Lion Beer, Spirits & Wines (NZ) Ltd. Lion has a longhistory of alcohol retailing in New Zealand. It operates 39 retail stores nation-wide.One of the stores is Liquor King Kent Terrace.[6] Liquor King Kent Terrace has been in operation since 1993. The store is highlyvisible on a prominent location on the corner of Kent Terrace and Elizabeth Street, atthe edge, as previously described, of the Courtenay Place entertainment precinct.Liquor King is 170m from Clyde Quay Primary School which shares with Liquor Kingthe block on Elizabeth Street. There is a liquor ban in the area.[7] The premises compromise a ground level floor space of approximately 200m2with displays of alcohol, chillers, a craft beer filling station and an office. Liquor Kinghas 14 car parks adjacent to Kent Terrace. Within a 500m radius there areapproximately 130 on-licensed premises and 13 off-licensed premises.Decision of the Wellington DLC[8] The DLC heard evidence and submissions over two days. Evidence by way ofwritten brief and oral evidence was given by:• Mr Fowlie, the branch manager of Liquor King Kent Terrace;• Mr Joseph, Liquor King's southern regional manager;• Dr Palmer, the Medical Officer of Health;• Sergeant Rapira-Davies representing the New Zealand Police; and• Mr Christie, a local resident who filed a notice of objection.[9] Mr Guruvayurappan, the Licensing Inspector, appeared but did not oppose theapplication and made no submissions.[10] The DLC considered there was sufficient evidence to support a reduction insale hours on Fridays and Saturdays. The DLC based its conclusion on a range offactors including rates of alcohol-related harm reflected in the Police and hospital data;Liquor King's location in a significant centre of alcohol consumption close toresidential dwellings and a primary school; and the evidence from Mr Christie as tothe real consequences for the neighbouring community from off-licence alcoholconsumption later in the evenings and weekends.5[11] While the evidence supported a reduction in hours on Fridays and Saturdays,the DLC did not consider the evidence supported reduced hours on other days of theweek. Any further reduction would not be proportionate to the identified harm.6[12] Accordingly, the DLC renewed the licence subject to seven conditions two ofwhich Lion appealed to Authority:(a) a condition that alcohol may be sold on, or delivered from, the premisesonly on Friday and Saturday between 8.00 am and 9.00 pm; and(b) a condition that all carry bags in which alcohol is sold to retailcustomers must be branded on at least one face of the bag with LiquorKing branding.Decision of the Alcohol Regulatory and Licensing Authority[13] The Authority heard the appeal on 27 April 2017 and issued its decision on12 May 2017.[14] The Authority set out the background to the appeal before it, including thenature of the objection by Mr Christie. Mr Christie opposed renewal on the basis oftrading hours. After setting out the grounds of appeal and the relevant provisions ofthe Act the Authority turned to the evidence and submissions.5 Re Lion Liquor Retail Ltd, above n 1, at [182].6 At [183].Evidence and submissions[15] Lion's position before the Authority was that the causal nexus required thealcohol-related harm to be related to the specific trading hours condition. No logicallink or causal nexus could be drawn between the evidence of alcohol-related harm andLiquor King's trading until 11.00 pm on Friday and Saturday nights. The evidencewas "too general". Lion accepted there was evidence of alcohol-related harm withina 500m radius of its premises and this area encompasses approximately 130 bars,nightclubs and 12 other off-licences. But it submitted that if its store closed earliercustomers would either purchase alcohol earlier or purchase from other nearby storeswhich remained open. Consequently, the benefit of reduced hours of alcohol salewould be lost. This created an uneven playing field. Restricting the sale hours onFriday and Saturday nights was arbitrary and unjustified.[16] In essence, the Medical Officer of Health's position before the Authority wasthat users in the locality of the premises are especially vulnerable to alcohol-relatedharm either as consumers, residents or victims of alcohol-related violence. TheMedical Officer of Health adduced evidence to demonstrate the vulnerability of therelevant community of users served by the premises. As alcohol supplied through off-licences is a significant contributor to alcohol-related harm the location andcharacteristics of the Lion's premises make it a likely contributor to alcohol-relatedharm in the locality on Friday and Saturday nights.[17] The Authority summarised the evidence before the DLC in the following way:(a) The age demographic in the area of the premises is of a greater numberof younger people in their late teens and twenties than the nationalprofile.7(b) Alcohol-related attendances at Wellington Hospital EmergencyDepartment are higher for people living in the locality of the premisesthan in Wellington generally.87 Lion Liquor Retail Ltd v Medical Officer of Health, above n 2, at [40].8 At [40].(c) Research showed that by comparison with adult drinkers, youngerdrinkers (aged 18 to 24) are more likely to consume alcohol outside thehome.9(d) The attendances of younger people, females and males, at theEmergency Department peak early on Sunday morning and Saturdaymorning (in that decreasing order of magnitude). In Dr Palmer'sopinion the majority of alcohol-related attendances relate to bingedrinking.10(e) With the exception of one incident linking the purchase of alcohol fromLiquor King to the hospital admission of a 19-year-old female thehospital admission data did not identify the source or time of purchaseof alcohol.11(f) A total of 1626 calls for Police assistance over the year were forassistance for alcohol-related incidents within a 500m radius of thepremises. Of the calls for assistance between 9.00 pm and 11.00 pm,171 calls for assistance were within 500m of the premises. Policebelieved the concentration of calls between the hours of 9.00 pm and11.00 pm to be largely attributed to off-licences.12(g) Over 960 alcohol infringement offence notices were issued during 2015for breaches of the alcohol ban area "many" of which were issuedwithin 500m of Lion's premises.13(h) There was evidence of a vulnerable neighbourhood due to the presenceof low-income boarding houses, schools and child care centres.149 At [41].10 At [42].11 At [44].12 At [45]–[46].13 At [47].14 At [48].(i) The data showed twice the number of people who come to Policeattention do so following the consumption of off-licence alcoholcompared to alcohol purchased in on-licensed premises.15(j) Mr Christie gave evidence of litter, noise and the personal impact ofvandalism and disturbances at night from drunk people. WhileMr Christie could not say definitively the alcohol was sourced to Lion'spremises, in his view the evidence strongly implicates the premises "asthe trail of discarded cans and bottles is continuous from thepremises to the nearby school."16Reasoning[18] The Authority regarded it as "evident" from its consideration of twoHigh Court decisions that:17 the causal nexus which needs to be established is between the granting ofthe application for a licence (or in this case, a renewed licence), and the objectof the Act contained in s 4(1). That is, a DLC needs to consider whether thereis anything to suggest that granting the application will be contrary to the safeand responsible sale, supply and consumption of alcohol, or that granting theapplication will result in harm caused by the excessive or inappropriateconsumption of alcohol such that that harm should be minimised.[19] The Authority accepted there was undoubted evidence of excessive orinappropriate consumption of alcohol in the locality of the premises or in theCourtenay Place entertainment precinct more generally. The data did not, however,constitute evidence that excessive or inappropriate consumption of alcohol andincreased alcohol-related harm would result from the renewal of Lion's licence.18Or, put the other way, there is no 'causal' nexus between the grant of thisrenewal licence and general incidence of [alcohol-related harm] in the localityestablished by the respondents and objector.15 At [49].16 At [51].17 At [58].18 At [61].[20] The Authority considered that, in a licensing application such as this —19 what is required is consideration of whether the proposed operation of thepremises which is the subject of the application is likely to lead to harm causedby the excessive or inappropriate consumption of alcohol. In the case of arenewal, this includes consideration of how the premises have operated todate.[21] The Authority emphasised the requirement for a necessary "link between thepremises to the risk of excessive or inappropriate consumption at more than a genericlevel".20Grounds of appeal[22] In its notice of appeal Lion contends the Authority erred in law in the followingrespects:(a) The Authority applied the wrong test in determining what evidence wascapable of establishing that a renewal of Lion's licence would becontrary to the object of the Act.(b) The Authority erred in the approach to be taken in renewal applicationsas opposed to initial applications.(c) The Authority erred in regarding the evidence of the Police and theMedical Officer of Health as capable of establishing only:(i) a positive correlation between alcohol consumption andalcohol-related harm or a positive correlation between the saleof alcohol from off-licences and alcohol-related harm.(ii) the general proposition that alcohol from off-licences can belinked to alcohol-related harm and that vulnerability in thecommunity is a result of alcohol availability.19 At [61].20 At [63].[23] The appeal is said to give rise to two questions of law:(a) In setting the mandatory conditions relating to the days and hours ofoperation under s 116(2)(a) of the Act, did the Authority fail to applythe correct legal test for imposing those conditions?(b) Was the Authority's conclusion that there was an insufficient evidentialbasis to maintain the hours condition under appeal a conclusion thatwas insupportable on the evidence and/or plainly wrong?Principles governing appeal[24] This an appeal under s 162 of the Act. Appeals against the decision of theAuthority under s 162 are appeals on questions of law. Such appeals are of limitedscope. The decision of Kόs J in Triveni Puri Ltd v Commissioner of Police21 has beencited in support of the proposition that on appeal under s 162 the Court is not boundby the Authority's opinions merely because it is a specialist tribunal. The High Courtis bound to reach its own independent conclusion.[25] I observe that Triveni Puri was an appeal under s 138 of the Sale of Liquor Act1989. Section 138 of the 1989 Act provided for appeals to the High Court againstdecisions of the Authority on grounds of unsuitability. Section 162 of the 2012 Act isa quite different appeal provision. It limits appeals to questions of law. InChristchurch Medical Officer of Health v J & G Vaudrey Ltd Gendall J decided:22 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.21 Triveni Puri Ltd v Commissioner of Police [2012] NZHC 2913, [2013] NZAR 88 at [19].22 Christchurch Medical Officer of Health v J & G Vaudrey Ltd [2015] NZHC 2749, [2016] 2 NZLR382 at [17].Statutory framework[26] The 2012 Act implemented the Government's response to the LawCommission's report Alcohol in Our Lives: Curbing the Harm.23 The Legislaturerecognised excessive drinking and intoxication was contributing to New Zealand'scrime rate, injury rate, and road crash statistics and was effecting the nation's overalllevel of health. It also recognised regulation alone would not turn aroundNew Zealand's excessive drinking culture.24Legislative settings can, however, support a safe and responsible drinkingculture through controls on the availability of alcohol, requirements for safeand responsible licensed premises, and the management of alcohol in public.[27] The policy objectives of the Bill were to:• Reduce excessive drinking by young people and adults;• Reduce the harm caused by alcohol use, including crime, disorder,public nuisance and negative public health outcomes;• Support safe and responsible sale, supply and consumption of alcohol;• Improve community input into local alcohol licensing decisions; and• Improve the operation of the alcohol licensing system.[28] These policy objectives were enacted in s 4, the object provision. Section 4provides:4 Object(1) The object of this Act is that—(a) the sale, supply, and consumption of alcohol should beundertaken safely and responsibly; and(b) the harm caused by the excessive or inappropriateconsumption of alcohol should be minimised.(2) For the purposes of subsection (1), the harm caused by the excessiveor inappropriate consumption of alcohol includes—(a) any crime, damage, death, disease, disorderly behaviour,illness, or injury, directly or indirectly caused, or directly or23 Law Commission Alcohol in Our Lives: Curbing the Harm (NZLC R114, 2010), a report on thereview of the regulatory framework for the sale and supply of liquor.24 Alcohol Reform Bill 2010 (236–1) (explanatory note) at 1.indirectly contributed to, by the excessive or inappropriateconsumption of alcohol; and(b) any harm to society generally or the community, directly orindirectly caused, or directly or indirectly contributed to, byany crime, damage, death, disease, disorderly behaviour,illness, or injury of a kind described in paragraph (a).[29] There are two important features of the object provision that distinguish it fromthe object of the predecessor 1989 Act. First, one of the two objects of the 2012 Actis to minimise alcohol-related harm. By comparison the object of the 1989 Act was toestablish a system of control over the sale and supply of liquor with the aim of"contributing to the reduction of liquor abuse".25[30] The second point is that harm is very broadly defined. Section 4(2) mirrors thedefinition of "alcohol-related harm" in s 5. Where the 1989 Act was concerned toreduce liquor "abuse" the concept of "harm" is central to the 2012 Act. The harmcaused by excessive or inappropriate consumption of alcohol not only includes anycrime, damage, disorderly behaviour, illness or injury directly or indirectly caused, ordirectly or indirectly contributed to by the excessive or inappropriate consumption ofalcohol, but any harm to society generally or the community.[31] Part 2 of the Act provides for the sale and supply of alcohol generally.Subpart 1 provides for four kinds of licence, the requirements for each, the authorityto hold licences, and restrictions and conditions on licences. Subpart 2 provides forlocal alcohol policies which any territorial authority may have in relation to the sale,supply or consumption of alcohol within its district.[32] The licensing process is provided for in subpart 3 which applies to on-licences,off-licences and club licences. An application for a licence is made to a licensingcommittee. A licensing committee must send a copy of every application for a licenceto the Police, Medical Officer of Health and the Licensing Inspector appointed in theterritorial authority's district.26 Section 105 sets out the criteria for the issue of alicence:25 Sale of Liquor Act 1989, s 4(1).26 Sale and Supply of Alcohol Act 2012, s 103.105 Criteria for issue of licences(1) In deciding whether to issue a licence, the licensing authority or theDLC concerned must have regard to the following matters:(a) the object of this Act:(b) the suitability of the applicant:(c) any relevant local alcohol policy:(d) the days on which and the hours during which the applicantproposes to sell alcohol:(e) the design and layout of any proposed premises:(f) whether the applicant is engaged in, or proposes on thepremises to engage in, the sale of goods other than alcohol,low-alcohol refreshments, non-alcoholic refreshments, andfood, and if so, which goods:(g) whether the applicant is engaged in, or proposes on thepremises to engage in, the provision of services other thanthose directly related to the sale of alcohol, low-alcoholrefreshments, non-alcoholic refreshments, and food, and if so,which services:(h) whether (in its opinion) the amenity and good order of thelocality would be likely to be reduced, to more than a minorextent, by the effects of the issue of the licence:(i) whether (in its opinion) the amenity and good order of thelocality are already so badly affected by the effects of the issueof existing licences that—(i) they would be unlikely to be reduced further (orwould be likely to be reduced further to only a minorextent) by the effects of the issue of the licence; but(ii) it is nevertheless desirable not to issue any furtherlicences(j) whether the applicant has appropriate systems, staff, andtraining to comply with the law:(k) any matters dealt with in any report from the Police, aninspector, or a Medical Officer of Health made under section103.(2) The authority or committee must not take into account any prejudicialeffect that the issue of the licence may have on the business conductedpursuant to any other licence.[33] Particular discretionary and compulsory conditions for off-licences areprovided in s 116. Every off-licence issued must be subject to a condition stating thedays on which and the hours during which alcohol may be sold.27 Conditions may bevaried under s 120 of the Act.[34] Applications for renewal of a licence are made under s 127. As for applicationsfor a licence there may be objections to renewal28 and enquiries by the Police, MedicalOfficer of Health and Inspector.29 The criteria for renewal of a licence are substantiallythe same as the criteria for issue of a licence in s 105. Criteria for renewal are set outin s 131:131 Criteria for renewal(1) In deciding whether to renew a licence, the licensing authority or theDLC concerned must have regard to the following matters:(a) the matters set out in paragraphs (a) to (g), (j), and (k) ofsection 105(1):(b) whether (in its opinion) the amenity and good order of thelocality would be likely to be increased, by more than a minorextent, by the effects of a refusal to renew the licence:(c) any matters dealt with in any report from the Police, aninspector, or a Medical Officer of Health made by virtue ofsection 129:(d) the manner in which the applicant has sold (or, as the casemay be, sold and supplied), displayed, advertised, orpromoted alcohol.(2) The authority or committee must not take into account any prejudicialeffect that the renewal of the licence may have on the businessconducted pursuant to any other licence.[35] Conditions on renewed licences are imposed under s 132.27 Section 116(2)(a).28 Section 128.29 Section 129.Question 1: did the Authority fail to apply the correct legal test in setting thehours of operation?Appellants' submissions[36] Taking an overview of the Authority's errors, the Medical Officer of Healthwas critical of the Authority's failure to note many of the principles applicable to itsappellate function. Mr Allan, counsel for the Medical Officer of Health, identifiedmany such "failings" in the Authority's decision. For example the Authority did notexpressly acknowledge that there is no presumption an existing licence will berenewed and that the task is an evaluative one in which notions of onus of proof areunlikely to be helpful. The Authority failed to interpret the object of the Act and itfailed to recognise the precautionary principle.[37] More particularly, Mr Allan submitted the Authority misunderstood the natureof the evaluative exercise it was required to undertake. It was wrong for the Authorityto dismiss the reporting agencies' evidence and instead to require proof of a causalnexus between the grant of this renewal and the incidence of alcohol-related harm inthe locality.[38] The reporting agencies maintain that given the risks presented by establishedlevels of alcohol-related harm associated with the phenomena of pre-loading and side-loading in and around Courtenay Place, reducing the availability of alcohol fromLiquor King on Friday and Saturday nights was clearly rational in terms of helping toachieve the object of the Act.Respondent's submissions[39] The respondent rejects the appellants' contentions that the Authority failed totake into account relevant principles. In Lion's submission, the reporting agencies'arguments reflect a dissatisfaction with the Authority's evidential findings. In thecontext of an appeal on a question of law Ms Arthur-Young submitted the Court shouldbe cautious to avoid engaging with the factual challenges which the appellants mount.There is nothing in the Authority's decision to suggest it applied the wrong approach.The Authority is a specialist tribunal and it carefully and thoughtfully summarised thedata brought before it by the Medical Officer of Health and Police.[40] In particular, the Authority placed no burden of proof on the reporting agenciesand it correctly interpreted and applied the relevant statutory provisions. As to itsalleged failure to apply the precautionary principle Ms Arthur-Young submitted theprinciple is not a mandatory relevant consideration but a tool the Authority may applyin appropriate circumstances. The precautionary principle is not a panacea for a lackof evidence.[41] Finally, Lion submits the cases upon which the reporting agencies rely aredistinguishable.Assessment[42] I do not accept that the mere omission of references to relevant case law orprinciples constitutes an error of law. It may be evident from a judicial body's decisionthat, even without recitation of relevant case law and principles, the applicable lawnevertheless has been applied and a correct analytical approach taken. I also acceptMs Arthur-Young's submission that there is no obligation for a decision-maker toaddress every piece of evidence or argument raised.30[43] On any analysis of the Act, and the various functions of the bodies makingdecisions under it, the object of the Act is the first criterion when consideringapplications for renewals. What the Court of Appeal described as the "modest object"of the Sale of Liquor Act 1989 has been replaced by a new Act signalling "a newcommunity-oriented approach incorporating both purpose and object provisions".31Decision-making in the context of Lion's application is essentially rooted in a riskassessment. The factors to be considered in the course of assessing an application fora licence or for renewal, as the appellants submitted, stand to be assessed in terms oftheir potential impact upon the prospective risk of alcohol-related harm.[44] An application for renewal of a licence is to be assessed in light of a range offactors relevant to the particular application. There is no one test. Regard must be30 Manukau City Council v Trustees of Mangere Lawn Cemetery (1991) 15 NZTPA 58 (HC) at 61cited in Auckland Medical Officer of Health v Birthcare Auckland Ltd [2015] NZHC 2689, [2016]NZAR 287 at [106].31 J & G Vaudrey Ltd v Canterbury Medical Officer of Health [2016] NZCA 539, [2017] 2 NZLR334 at [22]–[23].had to the object of the Act and the statutory criteria for renewal. The criteria relevantto this application include the suitability of the applicant, the days on which and thehours during which the applicant proposes to sell alcohol, the design and layout of thepremises, and the matters dealt with in the reports from the Police and Medical Officerof Health.32 There is also to be regard for the amenity and good order of the localityand whether it would be likely to be increased by more than a minor extent, if a renewalwere refused.33[45] The statutory provisions must be applied in a way that promotes the twinstatutory objects which are that the sale, supply and consumption of alcohol should beundertaken safely and responsibly and that alcohol-related harm should be minimised.The aim of minimisation requires alcohol-related harm to be reduced to the smallestamount, extent or degree.34[46] No party contests that the proper approach to the application is evaluative andmerits based.35 The following further principles may be taken from the cases:(a) There is no presumption that an application for a licence will be grantedor that a licence will be renewed.36(b) This is made reasonably plain by the fact the approach to renewal isvirtually the same as the process engaged by an application for an initiallicence.37(c) A licensing committee or Authority, after having regard to the criteriafor renewal in s 131, is then to step back and consider whether there isany evidence indicating that granting the application will be contrary to32 Section 131(1)(a), criteria for renewal including those matters set out in s 105(1) relating to criteriafor issue.33 Section 131(1)(b).34 Re Penoy Spirits Ltd [2014] NZARLA PH 697 at [19] adopting the New Shorter Oxford EnglishDictionary definition; Linwood Food Bar Ltd v Davison [2014] NZHC 2980 at [18].35 Christchurch Medical Officer of Health v J & G Vaudrey Ltd, above n 22, at [54].36 At [55].37 Auckland Medical Officer of Health v Birthcare Auckland Ltd, above n 30, at [48].the statutory object in s 4.38 Or, as Heath J articulated a "test":39Although the "object" of the 2012 Act is stated as one of11 criteria to be considered on an application for an off-licence,it is difficult to see how the remaining factors can be weighed,other than against the "object" of the legislation. It seems tome that the test may be articulated as follows: is the Authoritysatisfied, having considered all relevant factors set out ins 105(1)(b)–(k) of the 2012 Act, that grant of an off-licence isconsistent with the object of that Act?(d) The breadth of the Authority's functions suggests the application ofrules involving onus of proof may be inappropriate.40 Similarly thereis no onus on the reporting agencies to prove the application should notbe granted.41(e) The criteria for the issue of licences, and for renewal, are not to beinterpreted in any narrow or exhaustive sense. The Authority may takeinto account anything which, from the terms of the statute as a whole,appears to be regarded by the legislature as relevant to licenceconditions and the terms on which they should be granted. "That mustinclude the statutory object referred to in s 4."42 The matters raised bys 4 are to be approached on a nationally consistent basis.43(f) The Authority is not required to be sure that particular conditions willreduce liquor abuse:44It is entitled to apply the equivalent of the precautionaryprinciple in environmental law. If there is a possibility ofmeeting the statutory objective then it is entitled to testwhether that possibility is a reality.[47] To assist the risk assessment the legislature has given the reporting agencies aprominent role. Every application for a licence or for a renewal of a licence must be38 At [50].39 Re Venus NZ Ltd [2015] NZHC 1377, [2015] NZAR 1315 at [20].40 At [60]; and Auckland Medical Officer of Health v Birthcare Auckland Ltd, above n 30, at [52].41 Auckland Medical Officer of Health v Birthcare Auckland Ltd, above n 30, at [113].42 Walker v Police HC Wellington AP87/01, 31 May 2001 at [29] approved in My Noodle Ltd vQueenstown Lakes District Council [2009] NZCA 564, [2010] NZAR 152 at [67].43 Walker v Police, above n 42, at [29].44 My Noodle Ltd v Queenstown Lakes District Council, above n 42, at [74].sent by the relevant licensing committee to the Police, Inspector and Medical Officerof Health.45 Those bodies have an obligation to enquire into the application.46 If thereis no objection no report needs to be filed. If, however, there is any opposition to theapplication a report must be filed within 15 working days of receiving theapplication.47 Those reports become matters to which the Authority or licensingcommittee "must have regard".48[48] There is every indication from the Authority's decision that it did, indeed, takenote of the reports of the Medical Officer of Health and Police. I see no error in thataspect of the Authority's approach (I return to the Authority's approach to the evidencein the discussion of the second question of law.) However, the Authority drew animpermissible distinction between the approach to be taken on a renewal applicationand the approach to be taken on an application for a licence. The Authority stated:49In the context of a renewal application, a proposal to change trading hours onrenewal where there is little or no issue about the manner in which theapplicant has operated its licence in the past, must be able to be explained bysome evidence demonstrating abuse as a result of the granting of the renewalon those terms. This is not because there is a presumption that the hours ofany licence will be the national maximum default hours set out in s 43 of theAct, but because any change in conditions should not be arbitrary.[49] The Authority assumed an evaluation of the criteria in ss 105 and 131 requireda balance between allowing the safe and responsible sale, supply and consumption ofalcohol, and minimisation of alcohol-related harm.50[50] In my view, the Authority's concern to achieve a "balance" led the Authorityinto error. Lion had expressed concern, reflected in its submissions before theAuthority and in this appeal, at a potential loss of customers and market share if thehours during which it could sell alcohol were reduced. The Authority's conclusionson this point effectively see the twin elements of the statutory objective as requiringto be in balance when s 4 requires both of the twin objectives to guide the applicationof the legislation. But the Act is clear. In deciding whether to renew or grant a licence45 Sale and Supply of Alcohol Act, s 103(1).46 Section 103(2).47 Section 103(4).48 Section 131(1)(c).49 Lion Liquor Retail Ltd v Medical Officer of Health, above n 2, at [64].50 At [63].the Authority and DLC "must not take into account any prejudicial effect that therenewal of the licence may have on the business conducted pursuant to any otherlicence.51 As McGechan J observed in Buzz & Bear Ltd v Woodroffe:52Any licensee takes a licence under risk that conditions may change, and areport may recommend adjustment. There is no asset protected for all timewhatever may happen outside.[51] Or, as the DLC observed, the Legislature's expectation that alcohol-relatedharm will be minimised "does not yield to a licensee's commercial or equitableinterests".53[52] An appropriate framework when a licensing committee or authority isconsidering an application to grant an off-licence, or an application for renewal,contemplates the decision-maker considering:54(a) the criteria in s 131;(b) any reports presented by the Police, Medical Officer of Health andlicensing inspector following their respective inquiries into theapplication; and(c) any objections filed in accordance with the statutory requirements forobjections to renewal.Having considered all of that information the Authority must stand back anddetermine whether the application should be granted (whether on conditionsor not) or refused. This step requires the Authority to form a view on whetherthere is any evidence to suggest that granting the application will contrary tos 4(1), increase the risk of alcohol abuse. While a causal nexus is requiredbetween such evidence and the relevant risk, it is unnecessary to qualify thenature of the link by reference to such words as "powerful" or "direct".[53] The Authority erred in formulating as the test: "whether a change in thepremises closing hour can be said to be a rational response to the probability of a51 Sale and Supply of Alcohol Act, s 131(2).52 Buzz & Bear Ltd v Woodroffe [1996] NZAR 404 at 410.53 Re Lion Liquor Retail Ltd, above n 1, at [88].54 Otara-Papatoetoe Local Board v Joban Enterprises Ltd [2012] NZHC 1406, [2012] NZAR 714at [31].greater degree of abuse associated with the premises resulting from the grant of therenewal".55 That approach tends to favour perpetuation of the status quo for Lionrather than responding to the risks of alcohol-related harm which the evidenceestablished and to which it can reasonably be inferred from the evidence, the premisescontribute. In the face of those facts the Act requires a response which is aimed atminimising – that is, reducing to the smallest, amount, extent or degree – alcohol-related harm.Question 2: Did the Authority err in its conclusion there was an insufficientevidential basis to maintain the hours condition?Appellants' submissions[54] The appellants' case is that the Authority's decision was unsupported by theevidence. The appellants point to the following particular conclusion which theAuthority reached:56Evidence of vulnerability of the community is not sufficient to alter a premisesoperating in the absence of some link between the operation of those premisestrading hours and that vulnerability.[55] The reporting agencies submit they did not advance argument simply on thebasis that users of the Courtenay Place entertainment precinct and nearby residentswere vulnerable to alcohol-related harm. Nor did their evidence establish merely thatthe relevant community of users and residents were "vulnerable" or merely "thatalcohol from off-licences can be linked to [alcohol-related harm] and that vulnerabilityin the community is a result of alcohol availability".[56] The Authority's ultimate conclusion that there was no evidence of anythingbeyond the general proposition that alcohol from off-licences can be linked to alcohol-related harm and that vulnerability in the community is the result of alcoholavailability is, in the appellants' submission, plainly wrong. The conclusion is not onlyunsupported by the evidence but contradicted by the evidence.55 Lion Liquor Retail Ltd v Medical Officer of Health, above n 2, at [65].56 At [66].Respondent's submissions[57] Ms Arthur-Young submitted an appellate court should take a cautious approachto an appeal from the Authority in light of its specialist tribunal status. Counsel citedthe comments of Lord Donaldson MR to the effect that it did not matter the degree ofcertainty with which an appellate court considers it might have reached a differentconclusion. What matters is whether the decision under appeal was a permissibleoption.57[58] The respondent says the Authority plainly had regard to the matters raised inthe reports from the Police and Medical Officer of Health. The Authority's decisionincludes a summary of their submissions and evidence. The Authority did not err byfailing to summarise every piece of evidence or every argument raised. The Authoritydelivered an unusually long decision and its decision was available to it on theevidence.[59] The Authority was cognisant of the evidence and the nature of the localityincluding the presence of other off and on-licenses where alcohol can be acquired lateat night. In this context, it was permissible for the Authority to find the required causalnexus between Liquor King ceasing trading at 9.00 pm rather than 11.00 pm onFridays and Saturdays, and a reduction of alcohol-related harm, was not made out.Assessment[60] The Authority saw the issue as being whether the DLC was required toestablish a causal nexus between the premises and the trading hour condition to beimposed, and whether the evidence established that nexus.58 The Authority regardedit as evident from the case law59 that the causal nexus is between the grant of (in thiscase) a renewed licence and the statutory object in s 4. In terms of identifying therelevant nexus, the Authority was correct. Once the causal nexus was identified the57 Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 at 92 cited in Bryson v Three Foot Six Ltd[2005] NZSC 34, [2005] 3 NZLR 721 at [27].58 Lion Liquor Retail Ltd v Medical Officer of Health, above n 2, at [52].59 At [57]–[58] citing Auckland Medical Officer of Health v Birthcare Auckland Ltd, above n 30.next step requires an evaluation of the evidence in order to assess the degree and natureof alcohol-related harm that is potentially linked to the licence.[61] The Authority's assessment of the evidence was that there was no causal nexusbetween the renewal of the licence and the "general incidence of [alcohol-relatedharm] in the locality".60 In apparently requiring a "positive correlation" between theproposed operation of the premises and alcohol-related harm the Authority seemed torequire Liquor King to be at the centre of the harm.[62] The reporting agencies do not contend that Liquor King is the sole originatorof the alcohol-related harm which the evidence establishes in the locality. Rather, it isLiquor King's risk profile that is relevant. Dr Palmer's evidence was of a "high-riskdemographic" and that off-licences in Wellington are the leading source of alcoholconsumed by persons who present at Wellington Emergency Department with alcohol-related conditions. Liquor King is located at the boundary of two area units:Willis Street — Cambridge Terrace and Mt Victoria West.61[63] The unusual demographic is due to the significant tertiary student populationin these area units. Dr Palmer's evidence was that the 18 to 29-year age band isconsidered to be the high-risk demographic with regard to acute alcohol-related harm.Most other area units in Wellington City, he said, do not have such extreme levels ofthe high-risk demographic.[64] Dr Palmer's evidence was based on data for alcohol-related attendances at theEmergency Department at Wellington Hospital over six years. While it is not possibleto link individual alcohol-related attendances to specific off-licences it is known thatmore than three-quarters of all alcohol consumed is sourced from an off-licence.Liquor King's location is on the edge of the problematic Courtenay Placeentertainment precinct which is characterised by binge drinking off-licence alcoholthrough pre- and side-loading, of RTDs in particular. Dr Palmer did not attempt tolink specific alcohol-related harm to specific off-licences. Nor do I regard it as60 At [61].61 An area unit is drawn from a census description of a "Census Area Unit". An area unitgeographically represents a small suburb within a much larger district, town or city.necessary.62 The data and observational and opinion evidence of the reportingagencies:(a) identified the notoriously excessive incidence of alcohol-related harmto users and residents in the locality in the hours before midnight onFriday and Saturday nights; and(b) linked the risk of continued alcohol-related harm to alcohol supplied atthose times by off-licenced premises. As Liquor King is one of onlytwo major liquor stores in the Willis Street–Cambridge Terrace "areaunit" and as Liquor King, but not the nearby Chaffers New World,supplies products clearly associated with alcohol-related harm it wasdifficult to imagine Liquor King is "not making a key contribution" tothe high number of alcohol-related attendances in the area.[65] The primary conclusion to be drawn from the evidence is that there can be norealistic doubt the premises contributes to some of the alcohol-related harm in thelocality. Given the proximity of the premises to the entertainment precinct and thereasonable distance of other off-licences to those same consumers it can reasonablybe accepted that alcohol will be purchased from the premises for pre-and side-loading.The Police evidence was that the two busiest suburbs in Wellington for alcohol-relatedcrime are Te Aro and Wellington Central where Liquor King is located. Further, mostCBD alcohol-related crime occurs in Courtenay Place and in close proximity to thepremises. Liquor King supplies products clearly associated in the evidence withalcohol-related harm and breaches of liquor bans.[66] Liquor King failed a controlled purchase operation involving sales to two 17-year olds. That issue has been resolved to the satisfaction of the Medical Officer ofHealth.[67] There is no challenge to the suitability of the operations or the professionalismof the operator. Nevertheless, in this statutory setting the professionalism of theoperator becomes subordinate to the extreme alcohol-related harm which is evidenced.62 See Otara-Papatoetoe Local Board v Joban Enterprises Ltd, above n 54, at [31].Mr La Hood drew attention to the DLC's observation that a licensee may be a modeloperator but if its products are consumed after sale in a harmful way the operator maybear the consequences by way of restrictions on the licence.63 The observation is wellmade. The Act looks to minimise alcohol-related harm. Where there is an evidentialfoundation enabling a link to be drawn between a real risk of alcohol-related harm andthe grant or renewal of a licence, the harm must be minimised not ignored or condoned.[68] In the face of such evidence the Act does not countenance the continuation ofhigh levels of alcohol-related harm. The Act requires minimisation of the alcohol-related harm. The task of the DLC was to respond to the risk and it did so. It is notnecessary to establish, as the Authority required, that the proposed operation "wouldbe likely to lead to" alcohol-related harm.64 To require demonstration of a link to thisdegree of specificity is not much different from requiring proof. Requiring proof of"a causative link is not only unrealistic but is contrary to the correct legal position".65[69] I accept the submissions on behalf of the appellants. The Authorityconsistently emphasised what the evidence did not show or did not prove at theexpense of what the evidence demonstrated.[70] It was sufficient to engage the requirement to minimise alcohol-related harmthat the evidence implicates the premises. The Authority erred in requiring evidenceof demonstrable historical harm. Rather, it was required to assess risk which, bydefinition, is future risk. In that regard, there was extensive evidence of the alcohol-related harm associated with this locality on Friday and Saturday nights. In fact, theDLC in its decision described the evidence as compelling. Having read the evidenceI agree with that assessment.[71] With respect to the Authority I am of the view it both misdirected itself andreached a conclusion which I consider contradicts the true and only reasonable63 Re Lion Liquor Retail Ltd, above n 1, at [141].64 Lion Liquor Retail Ltd v Medical Officer of Health, above n 2, at [61].65 Auckland Medical Officer of Health v Birthcare Auckland Ltd, above n 30, at [61]–[62].conclusion available on the evidence. The Authority thereby committed an error oflaw.66Summary[72] On hearing an appeal, the High Court may confirm, modify or reverse thedecision appealed against.67 The power to "reverse" a decision includes the revocationor annulment of a decision.68 The Authority's decision will be set aside. The decisionof the DLC is restored for the following reasons:(a) The legislative framework enacted by the 2012 Act was intended torestrict rather than relax drinking laws. The legislative measureproceeded on the basis of clear evidence showing a link between theavailability of alcohol and alcohol-related harm.69(b) Consequently, national maximum trading hours were reduced. Off-licence trading hours are significantly less than the hours during whichon-licenced premises may supply alcohol.(c) Regulating the availability of alcohol through restrictions on tradinghours was one of the policy levers the Law Commission recognised asbeing available to reduce alcohol-related harm especially in relation tooff-licence premises.70(d) The DLC correctly took account of the correlation between reducedhours and reduced alcohol-related harm. Indeed, Lion's own witnessaccepted that with the reduction in national "default" hours there hadbeen a reduction in overall alcohol-related harm.71(e) In all the circumstances the trading hours condition which the DLC66 Cf Vodafone New Zealand Ltd v Commerce Commission [2011] NZSC 138, [2012] 3 NZLR 153at [58]67 Sale and Supply of Alcohol Act, s 161(7).68 J & C Vaudrey v Canterbury Medical Officer of Health, above n 31, at [77].69 As observed by the Hon Judith Collins when moving the third reading of the bill.70 Law Commission, above n 23, at [9.40]–[9.49].71 Re Lion Liquor Retail Ltd, above n 1, at [187]–[188].imposed to minimise the established alcohol-related harm in thelocality was principled. The DLC did not have to be sure the conditionwould, in fact, minimise alcohol-related harm. It was entitled to testthe possibility.72Result[73] The appeal is allowed.[74] The questions of law are answered as follows:Question 1: did the Authority fail to apply the correct legal test insetting the hours of operation?YesQuestion 2: Did the Authority err in its approach to the evidentialfoundation required for its conclusion?Yes[75] Having succeeded in their appeal the appellants are entitled to costs. If costsare unable to be agreed between the parties they may file memoranda not exceedingfive pages._____________________________Karen Clark JSolicitors:Luke Cunningham Clere, Wellington for AppellantRussell McVeagh, Auckland for Respondent72 As the Court of Appeal observed in My Noodle Ltd v Queenstown Lakes District Council, aboven 42, at [74] the Authority and, I add, the DLC is entitled to apply the equivalent, in environmentallaw, of the precautionary principle.