Open all hours?
Alcohol licensing lawyer Pervinder Kaur explains the key areas for consideration when it comes to trading hours for your business…
When it comes to opening hours for on- and off-licence premises there are several matters that a district licensing committee or Authority will consider when assessing an alcohol licence application.
These fall under s 105(1)(d) of the Sale and Supply of Alcohol Act 2012 and, when considering days and hours of trading of a premises, ss 43 – 45 are relevant too. Section 43(1)(a) provides the default maximum trading hours – for on-licences and club licences these are the hours between 8 am and 4 am.
The Act sets out to limit the hours for off-licences in comparison to on-licences, so section 43(1)(b) provides that the default maximum trading hours for off-licences are the hours from 7 am to 11 pm.
These hours apply to off-licence alcohol sales irrespective of any on-licence hours that a premises may have that go beyond these hours. So far as trading hours are concerned, ss 43–45 establish no presumption in favour of the default hours and nothing in them requires that a local authority justify departure from the hours (see Auckland Council v Woolworths New Zealand Ltd [2021] NZCA 484 at [25]).
The LAP effect
However, having default maximum trading hours set out under the Act does not allow an applicant to apply for those maximum trading hours. The relevant district licensing committee is required to consider whether there is a Local Alcohol Policy (LAP) in force that applies to an application.
Where there is no LAP in place at all, or there is a LAP but it does not provide for maximum trading hours and the premises currently has a licence with more liberal maximum trading hours than the default national maximum trading hours set out in s 43, then s 44 of the Act becomes relevant. Section 44 makes it clear that the most restrictive hours of the two would be observed – whether they are under the current licence conditions or under default national maximum trading hours.
Generally, a LAP would set out maximum trading hours for premises in its district and the respective district licensing committee would need to take the provisions under the LAP into consideration when assessing an application and the proposed days and hours in it. This is set out under s 45 of the Act, which makes it clear that a district licensing committee cannot grant longer hours than those specified in the LAP once the LAP is in force.
“Proposed opening hours play a significant part in the success of an alcohol licence application.”
Location, location, location
A district licensing committee also has to take into account where the premises is located when considering the proposed days and hours of trading.
If a premises is located in a residential area, then an on-licence premises such as a bar or a restaurant would need to take that into consideration when applying to trade for certain hours, especially if they are late night hours. Similarly, a countryside pub or eatery would need to consider the rural locality and noise-related issues when looking to apply for trading hours later than 10 pm.
Another example might be a bottle store proposing to operate near a school – the district licensing committee in this instance may look at restricting the store’s trading days and hours to minimise the school students’ exposure to alcohol.
Essentially, what is required is that the proposed days and hours of opening are in line with the object of the Act, which is that the sale and supply of alcohol is undertaken safely and responsibly and that alcohol-related harm caused by excessive or inappropriate consumption of alcohol is minimised.
Proposed opening hours play a significant part in the success of an alcohol licence application, so it pays to give all the elements thorough consideration before applying for specific days and hours of trading.
Pervinder Kaur is an Associate at Corcoran French Lawyers, specialising in alcohol licensing.
cflaw.co.nz
