Doing LAPs

With few Local Alcohol Plans (LAPs) in place, communities are forced into being reactive when faced with new applications for liquor licences. Rob Zorn looks at what the slow arrival of LAPs means in Mangere, and nationwide.

The Sale and Supply of Alcohol Act 2012 came into force in December 2013 as the culmination of the Law Commission’s many recommendations to government around alcohol law reform. Part of its purpose was to restore to communities some control over where, when and how alcohol is sold in their neighbourhoods.

Why is it then, that in June 2014, a new liquor licence was granted to a store directly across the road from Southern Cross Campus, a 1,500–pupil school in Mangere – despite what appeared to be considerable opposition from the local community?

An objection was lodged by the Mangere-Otahuhu Local Board and the, licence was opposed by Auckland Regional Public Health, the local licensing inspector and, not surprisingly, Southern Cross Campus itself.

Southern Cross Chair Peter Parussini says the decision to grant the licence beggars belief.

“We have a deliberate strategy to improve academic performance, and we’re really proud of what we have achieved. A big part of that has been teaching our pupils they have a role as leaders in the community and that they need to keep themselves safe in terms of drugs and alcohol. Setting up a liquor store right outside our front gate completely undermines that.”

In granting the licence, the District Licensing Committee (DLC) has made some concessions to the school. No alcohol can be sold between the hours of 3pm and 4pm, no deliveries may be received during that time, single-item sales are forbidden and no person in school uniform can be on the premises, regardless of their age.

Mangere East Family Service Centre CEO Peter Sykes, who appeared at the hearing as a witness for the local board, says it’s ridiculous to think school pupils are only vulnerable between 3pm and 4pm.

“Students go over the road at lunchtime to buy food, and any slightly clever young person wanting to buy alcohol, can easily disguise a school uniform. This is a shop that’s open and selling alcohol and many students have to walk right past it on their way to or from school.”

Alcohol Healthwatch Director Rebecca Williams agrees.

“The new legislation was supposed to face us in a new direction, away from the liberal one and towards something much more community focused. Clearly that hasn’t been realised yet.

“With the new Act in place, allowing consideration of local amenity and good order, I would have thought the DLC would have more considered the community’s concerns.”

While many may find the DLC’s decision astonishing, there are some factors that make this case a little less clear cut than it would seem.

The store in question, a superette, had already been selling beer and wine for quite some time. The application was for a new full off licence to sell the complete range of alcohol (including RTDs and spirits) from an outlet above the store, and the proprietor was happy to forego the superette licence if the new off licence was granted. He agreed there would be no advertising other than the store’s Thirsty Liquor branding and argued a more supervised upstairs location would actually make alcohol less accessible to young people.

The Police agreed and did not oppose the licence application.

“Our job is to oppose licences if the applicant is deemed unsuitable or if there is a clear connection between the outlet and recognised hotspots of harm,” says Sergeant Matt Tierney of the Counties Manukau Police District Licensing Unit.

“None of that applied here, so we had no objection. It’s up to councils to oppose around grounds involving sensitive sites and that sort of thing. We try not to cross into each other’s areas so there aren’t multiple objections all about the same thing.

“The other thing to remember is that there are significant differences around a grocery store selling beer and wine and a full off licence. There were a whole bunch of conditions imposed, and the view of the Police was that this would reduce harm by making alcohol less accessible for children.”

Sykes disagrees.

“There’s actually a lot of harm associated with this store. There are three youth gang houses within a few hundred metres of it. There was a stabbing right outside where the door to the upstairs outlet will be, and it’s a notorious place for youth gang activity historically.”

Parussini says the school has had no end of trouble associated with nearby alcohol sales.

“We’ve had instances of people walking through the grounds during school hours carrying boxes of beer. There’s plenty of evidence of people drinking on the grounds at night or during the weekends; bottles lying around, vandalism and stuff.

“We have sports during the weekend and after-school homework or catch-up classes, and we have people walking past with alcohol. It’s not conducive to academic performance, and how anyone could think it’s a good idea to let this application go ahead is completely beyond me.”

At the hearing, much was made of the fact that Southern Cross Campus did not lodge an objection when the application was first announced. This was seen to weaken their opposition.

“It’s true we didn’t object,” says Parussini, “but that’s because the notice informing the community about the application was issued at the back of a newspaper in January when the school was closed and people were on holiday. We simply didn’t know about it.

“If I were cynical, I’d suspect this was deliberately done to sneak it through under the radar. But why should we have had to find out and object in the first place? I would have thought, given the theme of the current legislation, that they should have had to come to us directly to ask for approval.”

Williams says the Sale and Supply of Alcohol Act 2012 is all about reducing or minimising harm, and that requires things to change rather than to leave them as they are.

“Here we had an opportunity to improve the situation and move towards the spirit of the new legislation, and it’s an opportunity that’s simply gone begging.”

However, she does concede that an important mechanism in the Act for giving communities more say lies in the development of Local Alcohol Plans (LAPs), and herein lies the rub. Auckland hasn’t yet got an LAP in place. This means the new Act had little impact on what actually happened.

While the Act stipulates broad level criteria such as default trading hours, it has empowered local councils to determine exactly what happens in their communities via LAPs. These can stipulate different opening hours and impose more specific restrictions (or not) according to what a council might think is appropriate in a given area.

Auckland Council has completed a draft LAP, and Williams says there’s a chance the licence would not have been granted had the LAP been in place.

“The draft LAP contains a concept called a ‘presumption against’, which is applied in some areas. It means the default position is that new licences will not be granted unless applicants can prove a new outlet will not contribute to alcohol harm. Also, because this is a sensitive location or ‘neighbourhood centre’, an environmental and cumulative impact assessment would have been required. This would have ensured the school was informed and involved from the get-go.”

LAPs are also likely to reduce harm in other ways, such as providing clarity to both the industry and law enforcement in how to deal with alcohol harms.

“Exactly how much help the LAP will be for officers on the front line is hard to say until we see it in its final form,” says Tierney, “but we’re already seeing benefits from the default trading hours in the Act.

“We’ve seen a huge reduction in disorderly behaviour in the central city between the hours of 6am and 8am, which is really good. So, if we use that as an example of how well thought out legislation can affect things, then yeah, further improvements are likely.”

So why doesn’t Auckland have an LAP in place?

In a way it’s an unfair question. So far, there are around 30 draft LAPs in existence around the country, but only one council has managed full implementation.

Belinda Hansen, Principal Policy Analyst at Auckland Council, says a number of factors influenced the timeframes for the development of its LAP.

“Around 40 percent of the nation’s alcohol licences are in Auckland, so it’s important to get it right. We spent 18 months consulting with a range of stakeholders including Police, the industry, health and social agencies and the wider community to inform the draft LAP.

“We have a bustling CBD and big areas like Ponsonby, so we needed to consider what was going to be right and to work for so many different outlets in so many different circumstances in terms of opening hours and specific conditions.”

Written submissions on the draft LAP closed in July, and public discussion will take place during September. It is expected a provisional LAP will be accepted by Auckland Council in November, at which stage, it will become subject to appeal. Full adoption is not expected until early 2015, after appeals have been considered.

Williams thinks any hope of full adoption by early 2015 is probably unrealistic.

“So far, three LAPs have made it to provisional status (Waimakariri, Wellington and Tasman-Marlborough). All three have been subject to multiple appeals, mostly by organisations like Hospitality New Zealand, Independent Liquor and the big supermarket chains like Progressive and Foodstuffs.

“So what we’re seeing here is the alcohol industry using its commercial muscle to hold things up as much as it can to maintain the status quo by delaying the implementation of LAPs for as long as it can. Because of the size of the city, Auckland Council received 2,600 or more submissions on its draft LAP. It’s likely the Auckland LAP will also be heavily appealed.”

The Alcohol Regulatory and Licensing Authority (ARLA) has decided it will deal with appeals one at a time, so Williams is probably right that the process could take some time.

She says many of the appeals have been around the meaning of the word “reasonable” even though, in many cases, the issue is just a single extra hour of opening time. One supermarket is even appealing over hours in which it doesn’t currently operate.

“The argument is that they may not currently operate at that time, but they want to reserve the right to in the future. The reason they don’t operate during the disputed hours is because it’s clear the community doesn’t need them to, so this looks to me like an appeal for appeal’s sake.”

Meanwhile, she says, the very fact that there have been so many appeals may well be causing delays in other localities.

“The feedback Alcohol Healthwatch is receiving is that a lot of councils have put their LAPs on hold until they see the results of the appeals in places that have already gone provisional.

“Basically, these industry delaying tactics amount to an undermining of community decision making using legal argy-bargy in the courts. It’s costing local government (i.e. ratepayers) and denying communities the right to have their say through their LAPs. When you sit back and look at it, these appeals are pathetic and vexatious.”

While we might expect someone like Williams to be reluctant to give Big Alcohol a break, there is certainly evidence of some dubious practices on the part of the industry in terms of the submission process.

For example, in April, it was revealed only about a third of the 260 submissions presented by Hospitality New Zealand to the Hastings and Napier District Council’s draft LAPs could be considered genuine. The remainder were found to be from addresses that couldn’t be verified or from people who, when contacted, said they didn’t recall making a submission.

One ‘submitter’ even said they’d signed a filled-out submission form at a Havelock North bar in exchange for a free jug. That person has since withdrawn their ‘submission’.

Sykes says those opposed felt quite belittled by the lawyer for the applicant at the Mangere hearing and he was amazed at what he calls the games played with words.

“Basically we were made to feel that because we didn’t know in time to lodge an objection, we didn’t exist and had no right to a say in the matter. It was suggested that, because we hadn’t objected, our opposition at the hearing was some sort of ambush.

“It was even argued that, because alcohol is already available in supermarkets, society accepts that it should be available in generic places. A child could see the difference between selling alcohol at a supermarket and selling it at a store across the road from a school. It was ridiculous.”

As Williams points out, district licensing committees and alcohol authorities are courts of law, and it’s really hard for ordinary members of communities to gear up and take on lawyers – which is why local boards have been so willing to get involved.

“We need to get LAPs in place quickly so ordinary mums and dads won’t be forced to take this sort of action to protect their children in future.

“In the meantime, and at the very least, the DLC has imposed some conditions on the new licence. Time will tell whether they are sufficient. The Police say there are no trouble hotspots associated with the store. It will be interesting to see whether that changes.”

Rob Zorn is a Wellington-based writer.