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Auckland Council gets a win on liquor sales restrictions

19 May 2023

| Author: Jamie Dierick

The Sale and Supply of Alcohol Act 2012 – s 75 territorial authority may develop policy about the sale and supply of alcohol within the authority’s district – s 4 object of the Act – 9pm closing time not unreasonable under the object of the Act – 9am opening time unreasonable – restrictions on off-licence not unreasonable. 

Woolworths New Zealand Limited v Auckland Council [2023] NZSC 45 (William Young J) 

The Sale and Supply of Alcohol Act 2012 regulates the sale, supply, and consumption of alcohol. Under s 75,  a territorial authority may develop policy about the sale, supply or consumption of alcohol within the authority’s district. Before a territory adopts such a policy, it must produce a provisional local authority policy.

In 2015, Auckland Council produced its provision local alcohol policy. Part of this policy was restricting the trading hours from 9am to 9pm, as opposed to the default trading hours of 7am to 11pm provided for in the Act.

The change also implemented various restrictions on granting new off-licence alcohol licences. These included a rebuttable presumption against the granting of new off-licences in certain neighbourhood areas. There was also a recommended temporary freeze on the granting of new off-licences in certain other areas, followed by a rebuttable presumption against granting new off-licences in these areas.

The reason for the changes was inter alia to reduce alcohol-related harm.

Woolworths New Zealand Ltd and Foodstuffs North Island Ltd applied to the licensing authority under s 81 of the Act. This was on the basis that Auckland Council’s provisional local alcohol policy was unreasonable.

The licensing authority concluded that the 9am opening time closing was unreasonable but not the 9pm closing time.

Woolworths and Foodstuffs sought a judicial review of the licensing authority’s decision. The High Court found the licensing authority had made an error of law by failing to provide appropriate reasons for the 9pm closing time and the new off-license restrictions.  The Court of Appeal reinstated the decision of the licensing authority.

The Supreme Court granted Woolworths and Foodstuffs leave to appeal but subsequently dismissed the appeal.

The court found that the licensing authority had made no error of law in concluding that the 9pm closing time was not unreasonable in light of the object of the 2012 Act.  The authority had extensively reviewed evidence indicating that changing the closing time would reduce alcohol-related harm. The court also rejected the argument that the trading hours restriction may be appropriate only in certain areas of Auckland and for certain types of off-licences.

The court also found the licensing authority was entitled to conclude and gave adequate reasons for concluding, that the new off-licence restrictions were justified because of the likelihood of reducing alcohol-related harm.

Held: 11pm to 9pm change of trading hours and restriction of off-licence upheld. Appellants were ordered to pay Auckland Council costs of $35,000.

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