9 27 February 2017
25 November 2016
Report no: PRC2017/1/58
Local Alcohol Policy: Proposed amendment
Purpose of Report
1. To report back to Council on a proposed draft amendment to the Hutt City Local Alcohol Policy and ask Council to consider consulting on the draft amendment using the special consultative procedure.
It is recommended that the Committee recommends that Council:
i) notes the evidence presented in the attached papers from the Medical Officer of Health and Police;
ii) notes that Council Licensing Inspectors have also been consulted as required by section 78(4) of the Sale and Supply of Alcohol Act 2012 (the Act);
iii) notes the other evidence presented to the Council as part of the process to produce a draft amendment to the Local Alcohol Policy (LAP);
iv) has regard to the mandatory criteria contained in section 78(2) of the Act;
v) based on the information provided and the consideration of the mandatory criteria, agrees to produce a draft LAP amendment that adds the following words to clause 1.2 of the LAP:
a. the maximum number of off-licences permitted in the following areas:
Hutt Central; and
b. shall be the number of off-licenses in the area, at the time this policy is adopted, and
c. the areas are outlined on the map attached to this policy;
vi) notes that, during consultation, Council Licensing Inspectors raised two types of on-license that are not dealt with by the current LAP;
vii) agrees to produce a draft LAP amendment that adds the following words to clause 1.1 of the LAP:
a. add the words “Function Centres” to both sections dealing with Taverns/Hotels/Nightclubs.
b. add the words:
7.00am- 3.00am the following day, Monday to Sunday.
Licensed on the condition that their on-licenses are linked to the business activity of a cinema.
viii) appoint a subcommittee of two councilors and one independent expert to hear submissions, conduct the process required under the Act and make recommendations to Council on the production of a provisional LAP;
ix) directs officers to instruct a suitable independent expert to Chair the subcommittee;
x) appoints Councilor Milne and Councilor Edwards to the subcommittee; and
vi) asks that the subcommittee also consider, if it believes it can lawfully do so, whether there is any evidence to support caps on the number of off-licences:
a. only applying to stand-alone bottle stores; or
b. excluding supermarkets; and/or
c. excluding premises operating as a brewery offering complimentary samples; and/or
d. excluding boutique shops selling only craft beer and imported wine.
2. Council passed the following resolution at its meeting on 24 May 2016:
(i) notes the Alcohol Regulatory and Licensing Authority has advised that it has not received any objections to the proposed changes to the Hutt City Council Provisional Local Alcohol Policy;
(ii) resolves that the effective date of the Local Alcohol Policy (LAP) be 1 September 2016, to allow a three month period from when public notice of the adopted LAP is given;
(iii) acknowledges the significant public feedback on the LAP, especially the concern around the number of off-licences around the City;
(iv) on the basis of that feedback, directs officers to prepare and consult on an amendment to the LAP, using the process in the Sale and Supply of Alcohol Act 2012;
(v) resolves that the proposed amendment is the introduction of an element to the LAP, considering the tools outlined in Section 77 (2) (a), (b), (c) and (d) of the Sale and Supply of Alcohol Act 2012;
(vi) resolves that the formal amendment process begin around the City as soon as practicable after the LAP becomes effective;
(vii) notes that the amendment process will involve consultation with the public and further reporting and decisions to be made by Council, in light of the findings and evidence; and
(viii) authorises Council’s Solicitor to obtain legal advice to confirm its decision is not ultra vires and, if necessary, refer the matter to its meeting to be held on 2 June 2016.”
3. Attached to the report as Appendix 1 is the Hutt City Local Alcohol Policy.
4. The decision by Council to propose an amendment to the LAP was based on public feedback including submissions made by members of the public and Trevor Mallard MP, who attended the Council meeting in May 2016. Concerns were raised about the lack of caps on the number of off-licences in certain areas of the city. Speaking under public comment, Mr Chiyah Oti-Lahood asked Council to consider limiting the number of alcohol premises in the City. He said he would like Wainuiomata to be classified as a high risk area. He presented a petition asking for a reduction in the number of alcohol premises in Wainuiomata.
5. Council was advised that a change to introduce a cap or sinking lid policy would constitute an amendment to the Local Alcohol Policy.
6. Section 78 of the Act outlines the matters the Council must have regard to, when producing a draft LAP. Council must have regard to the same matters when producing a draft amendment to the LAP. These matters are:
(a) the objectives and policies of its district plan; and
(b) the number of licences of each kind held for premises in its district, and the location and opening hours of each of the premises; and
(c) any areas in which bylaws prohibiting alcohol in public places are in force; and
(d) the demography of the district’s residents; and
(e) the demography of people who visit the district as tourists or holidaymakers; and
(f) the overall health indicators of the district’s residents; and
(g) the nature and severity of the alcohol-related problems arising in the district.
7. Council must also not produce a draft policy without having consulted the Police, Council Licensing Inspectors, and Medical Officers of Health. Each of these must, if asked by Council, make reasonable efforts to give Council any information they hold relating to any of the matters stated in subsection (c) to (g) above.
Alcohol in Health and Crime Briefing Paper
8. Following the Council meeting in May 2016, formal notice was sent to the Police and the Medical Officer of Health, seeking the information outlined above.
9. Attached as Appendix 2 is a combined briefing paper prepared by Police and the Medical Officer of Health. Representatives from both Police and Medical Officer of Health will attend the Policy and Regulatory meeting to speak to their briefing paper and answer any questions.
10. Officers also consulted with the Licensing Inspectors, who were present at a number of meetings and provided input over the course of developing the draft amendment.
11. The briefing paper from Police and the Medical Officer of Health/ Regional Public Health (RPH) provides health and Police data using risk markers of deprivation, age and ethnicity to develop a risk profile for Lower Hutt communities. They note that alcohol is a well-known causative factor in crime, violence and adverse health outcomes. The data shows some communities’ within Lower Hutt have a greater risk of alcohol related harm compared to others. RPH list areas in the city with very high or high risk categories and Police list areas with high or moderately high risk factors (refer to pages 8, 9 and 11 of the briefing paper).
12. The briefing paper notes the majority of alcohol consumed is purchased from off-licence premises. In that regard it should be noted here that a previous study by former Alcohol Liquor Advisory Council found that over 75% of all alcohol consumed is sold and supplied by off-licences. Because of this it is reasonable for one to conclude that alcohol purchased at off-licences is the main contributor to harm in any community.
13. The briefing paper recommends that the proposed amendment should limit the density of alcohol outlets, particularly off-licence outlets, in order to reduce the supply of alcohol and thus reduce the alcohol-related harm occurring in communities.
14. A meeting between Council staff, RPH and Police has been held recently to identify what, if any, local Lower Hutt evidence there is to support any proposed amendment to the LAP. The briefing paper outlines the results of several regional or national pieces of research. RPH advised that there is no other research that has used Lower Hutt data/evidence that could be used to inform an amendment to Council’s LAP.
15. The shortage of local evidence is problematic, as it places any LAP that is produced in danger of being successfully challenged at a later stage. Unless cogent localised evidence or, at the very least, cogent local empirical data can be obtained during the special consultative procedure process, it is difficult to draw reasonable inferences to rely on when considering placing caps on license numbers.
City Safety Managers report
16. Although the RPH and Police paper does not provide specific local evidence Hutt City’s City Safety Manager has provided a report (attached as Appendix 3) concerning alcohol related harm associated with drinking in public places in Lower Hutt. This report was prepared when Council was gathering evidence to support a proposed Alcohol in Public Places Bylaw 2016. The information in this report is relevant to the proposed amendment to the LAP as it complements the Police and RPH data by providing specific local evidence.
HCC LAP survey
17. A survey of Lower Hutt was undertaken in late 2012 to ascertain the level of community support for the development of a LAP in Lower Hutt. Following the decision of the Council in 2016 to consider amending the current LAP, a further survey was undertaken to gauge the attitudes of residents to alcohol use and regulation. A survey was sent to 1842 recipients with 564 responses which is a 31% response rate.
18. The results from respondents who reside in Moera, Naenae, Stokes Valley, Taita and Wainuiomata areas were then analysed to see if they had different attitudes relating to alcohol use and regulation. This sub-group (201) had a higher concern about alcohol use and regulation compared to the main survey sample.
19. While it’s appropriate to note it is a small sample the fact that this difference exists helps demonstrate these communities have a concern greater than the main sample – which if Council is focusing on the future regulation of off- licenses, one can argue this provides evidence around community support for that. Attached as Appendix 4 is a summary from the survey that shows the response from the main sample and the sub-group. These results are of interest only when considering the level of community support for the development of a draft amendment. It does not provide evidence that can be taken into account when considering a cap on licenses or other controls when developing a LAP.
Object of the SSAA
20. The objective of the Act is that:
a. the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and
b. the harm caused by the excessive or inappropriate consumption of alcohol should be minimized.
For the purposes of the Act, the harm caused by the excessive or inappropriate consumption of alcohol includes—
any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and
any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a).
21. In Page 4 of the RPH/Police paper Judith Collins is quoted expressing the expectation that local alcohol policies should be reflective of community views. For these reasons, officers are recommending it is appropriate to produce a draft LAP amendment and undertake the special consultative procedure to gauge the harm and consider solutions that may be available.
22. Section 77 of the Act is quite specific about what Council can include in its LAP. It may include certain controls from the list but cannot include any control that is not on the list:
77 Contents of policies
(1) A local alcohol policy may include policies on any or all of the following matters relating to licensing (and no others):
(a) location of licensed premises by reference to broad areas:
(b) location of licensed premises by reference to proximity to premises of a particular kind or kinds:
(c) location of licensed premises by reference to proximity to facilities of a particular kind or kinds:
(d) whether further licences (or licences of a particular kind or kinds) should be issued for premises in the district concerned, or any stated part of the district:
(e) maximum trading hours:
(f) the issue of licences, or licences of a particular kind or kinds, subject to discretionary conditions:
(g) one-way door restrictions.
(2) Paragraphs (a) to (d) of subsection (1) do not apply to special licences, or premises for which a special licence is held or has been applied for.
(3) A local alcohol policy must not include policies on any matter not relating to licensing.
23. The criteria to focus on for a proposed amendment to the current LAP is outlined in Section 78 of the Act (refer to number 6 of this report). The majority of these are considered throughout the report but the District Plan and Alcohol Control Bylaws are considered directly below.
The District Plan
24. One of the mandatory criteria to consider, before producing a draft LAP is the objectives and policies of the District Plan. Officers have consulted with the Environmental Policy Team of Council who has provided the information attached as Appendix 11. Ultimately, after discussion with the Manager of Environmental Policy, the objectives and policies of the District Plan were considered to have little impact on the adoption of this particular draft LAP amendment. Our District Plan does not overtly limit or ban licensed premises and simply manages the adverse environmental effects in a similar fashion to any other proposed activity.
Alcohol Control Bylaws
25. The Hutt City Council Control of Alcohol in Public Places Bylaw was adopted by Council in December 2016. This bylaw imposes significant bans on alcohol consumption in public places, including a 24 hour ban in key areas and extensive overnight bans across the city. Work is underway to establish the mechanisms necessary to bring the Bylaw into effect. It is expected that the provisions of that Bylaw will result in a reduction in public place drinking.
26. A LAP is aimed at reducing alcohol-related harm in the city. Alcohol free zones (established under the Bylaw) are another approach Council can use to mitigate the impact of, if any, off-licences. If Council can’t, for whatever reason, impose a restriction on off-licences using a LAP, at least Council can let people know that they cannot drink in public at certain times after purchasing alcohol from off-licence stores.
Policy tools available to address alcohol-related harm in Hutt City
27. Officers have considered the tools available to address the issue of alcohol-related harm in the community and have identified three tools that warrant further investigation. These are a cap on off-licenses, a “sinking lid” on off-licences; and/or limiting the proximity of off-licences to other off-licences or sensitive sites. These options are discussed below.
28. Council could specify a limit on the number of off -licenses allowed in Lower Hutt or in certain areas of Lower Hutt.
29. Such a condition could read as follows:
a) The maximum number of off-licences permitted [in Naenae, Stokes Valley, Taita, Avalon, Hutt Central and Wainuiomata] shall be the number of off-licenses at the time this policy is adopted.
30. Based on the evidence provided and outlined above, Council needs to determine the following matters, if it wishes to use caps to control the number of off-licences:
c. Where should the caps be located?
d. What are the caps on?
e. Should there be any exceptions to a cap?
Below is advice with respect to these three matters.
Where caps should be located?
31. The following criteria could be used collectively to determine where in the city caps could be established:
f. First, consider where deprivation index levels 8-10 are located, as this level is often used to define ‘high deprivation’;
g. Second, examine health and crime indicators and the associated nature and severity of alcohol related harm (as outlined in the briefing paper attached as Appendix 2)
h. Third, examine the number of existing off-licences in particular areas.
32. This mix of criteria draws from the mandatory criteria considering demographics, health indicators and the levels of alcohol related harm in particular areas.
33. Based on the evidence gathered, a cap is proposed for Avalon, Hutt Central, Naenae, Stokes Valley, Taita and Wainuiomata. The relationships between the factors outlined above are set out in the map attached to this report as Appendix 5.
34. In support of this proposed approach it should be noted that both Police and RPH rank these areas in their briefing report as either very high or a high risk of alcohol related harm (refer Page 8 and 11 of their report and also see Appendix 7 which is a map showing these high and moderately high areas). RPH has also advised Council staff that they support this approach if it applies to all off-licences within very high or high risk areas.
35. The 2013 deprivation index combines nine variables from the Census which reflect the eight dimensions of communication, income, employment, qualifications, home ownership, support, living space, and transport. In these areas a higher percentage of people are unemployed, are on low-income or claiming means tested benefits, don’t have access to a car, and are renting rather than owning their homes. A higher percentage also has no internet access and a higher proportion of the population does not have any educational qualifications.
What should the caps be on?
36. There are several options Council can consider. A cap on:
i. all off-licences; or
j. off-licences, excluding supermarkets; or
k. stand-alone bottle stores only.
37. Excluding certain categories from a cap must be justified and there is substantially increased risk of successful challenge to the LAP if Council arbitrarily distinguishes between the licence types. The advice from RPH and Police is that, at this stage they can provide no evidence that one type of off-license is more responsible for alcohol related harm than another. For this reason the recommended resolutions apply a cap to all off-licences for certain identified areas.
Should there be any exceptions to the cap?
38. Any exceptions to the cap would need to be borne out by the submissions and evidence presented. The proposed recommendations ask the hearings subcommittee to consider whether there is any evidence to support caps on the number of off-licences: Only applying to stand-alone bottle stores; or excluding supermarkets; and/or excluding premises operating as a brewery offering complimentary samples; and/or excluding boutique shops selling only craft beer and imported wine.
39. Creating a sinking lid policy is another option which could be included along with a cap. A sinking lid means the total number of off-licences allowed in this location is determined and then each time a current off-licence expires, it is not replaced. A sinking lid policy can also establish the minimum number of off-licences that can operate – so an area that starts with, for example, 5 off-licences could have a sinking lid apply which reduces that number to 3 (as licenses leave) and then caps it at 3.
40. It should be noted that any current licence will not lapse when it is either bought or sold. Also, if a current licence holder ceases trading temporarily (e.g. to do alterations to their premises) this wouldn’t constitute the lapse of that licence.
41. Currently a sinking lid is not a recommended option because there is no evidence to support it.
Location of premises
42. The other main tool Council can use to restrict off-licences is limiting them by proximity to other licences or sensitive sites. If Council wants to use this tool there is also a need to define whether the restriction applies to all off-licences or just certain types of off-licence.
Sensitive sites (density and proximity)
43. Sensitive sites can be defined as any place of worship, kindergarten, playground, or school (or any one of combination of those). Attached to this report as Appendix 9 is a map that show the impact if that separate distance is set at 250m or 500m. A sensitive site condition could be as follows:
A new off-licence will not be issued for any new premises located within XXX metres of a sensitive site.
Distance between off-licences (density and proximity)
44. Another option is creating a distance between existing and any proposed new off-licences. Attached as Appendix 10 is a map that shows the impact if that separation distance is set at 250m or 500m. Such a condition could read as follows:
A new off-licence will not be issued for any new premises located within XXX metres of an existing off-licence.
45. The maps attached to this report are all using distances of either 250m or 500m. This has been done to show the impact and then enable the reader to gauge for themselves the impact, if the distances were to be greater than say 500m or less than 250m. Based on that information it should provide the reader with a feel for the distances involved. The distances being used by other Council’s range up to 1,000m or down to 50m. It would appear the distance is often determined by the nature of the area concerned, for example if it is in a built up residential area or a rural setting. If Council was to consider smaller separation distances than those noted above, such a condition could read as follows:
A new off-licence will not be issued for any new premises located within [50 metres of /adjacent to] an existing [off-licence/sensitive site].
Conclusion – cap or location?
46. The resolutions currently recommend a list of areas within the city that could be subject to a cap. This is based on a number of factors, including the ‘high’ risk areas as outlined the briefing paper from RPH and Police. The areas are Naenae, Stokes Valley, Taita, Avalon, Hutt Central and Wainuiomata. Attached as Appendix 7 is a map that shows that area.
47. Also shown in that map are the areas identified by RPH and Police as their next highest risk areas. This is provided to show what that combined area would cover within the city. Whatever area(s) Council may decide to use must be based on good evidence. While ARLA may consider evidence from regional or national studies on alcohol harm issues as helpful, it is the provision of local evidence that carries more weight.
48. Officers recommend Council produce a draft LAP amendment containing caps of off-licenses for the areas identified.
49. Officers have not currently recommended any controls over proximity to licensed premises or sensitive sites. This decision was made after consulting with the required parties (Police, Health and Inspectors) and considering the purpose of the proposed amendment. The purpose of the amendment is to limit the numbers of bottle stores – the location controls are about limiting density and ensuring licensed premises are not next to sites where their location might be considered inappropriate. They are not controls on the numbers of stores and these tools are out of keeping with the purpose of this proposed amendment.
Recommended amendment to LAP
50. Leading on from this, officers propose four options for Council to consider. As discussed, the preferred option is capping the number of off-licences. This option provides a clear policy position with respect to the number of off-licences Council will allow, based on the evidence presented. It also addresses the concerns raised by the community concerning the number of off-licences. It provides a clear regulatory response to help address the issues identified by Inspectors, RPH and Police. Further community input can be sought in an effort to see whether the local evidence supports caps on off-licenses in these locations. This option is currently the recommended resolution for Council.
51. The other 3 options include:
The maximum number of off-licence bottle stores permitted [in Naenae, Stokes Valley, Taita, Avalon, Hutt Central and Wainuiomata] shall be the number of off-licenced bottle stores at the time this policy is adopted [and the minimum number of will be X]. New off licenses will not be granted unless the number of off-licenses in the area is below X.
[Separation from existing off-licences and/or sensitive sites]
A new off-licence will not be issued for any new premises located within [50 metres of /adjacent to] an existing [off-licence/sensitive site].
Current provisions for off-licences be retained with no changes proposed.
Other minor amendments recommended
52. Below are a number of minor amendments Council Officers have identified that would be desirable to include as part of this proposed amendment. These were raised in consultation with the Licensing Inspectors as on-licences that were not currently covered by the existing LAP. In these cases the default operating hours under the Act apply, allowing these businesses to trade from 8.00am until 4.00am the next day. If Council does not have an issue with the default hours for these types of businesses, the amendment is unnecessary.
l. On licence for Function Centres. These are currently not included in the LAP. The operation of their off-licence should be linked to the business activity of a function centre and subject to the restricted trading hours in line with hotels. A one year probation period only allowing operation until 1am could also be included.
m. On licences for Cinemas. These are currently not included in the LAP. The operation of their licence should be linked to the business activity of operating a Cinema. The Event Cinema licence says: on such days and hours Monday – Sunday 8.00am – 3.00am. They could be made subject to restricted trading hours.
53. If Council agrees to proceed with an amendment to its LAP the special consultative procedure will need to be followed.
54. Attached is the draft Statement of proposal required as part of the special consultation procedure [yet to be drafted and inserted] that, subject to any amendments the Policy and Regulatory Committee may wish to make, will be presented to Council for adoption at its meeting on 14 March 2017.
55. The Act states that when amending a LAP the same process applies as if the Council was adopting a LAP for the first time, with the necessary modifications. After producing a draft amendment Council must produce a provisional policy by using the special consultative procedure to consult on the draft policy.
56. Council has the legal right to stop the process associated with this proposed amendment at any stage.
57. It is difficult to determine at this point the costs involved in undertaking this proposed amendment to the Hutt City LAP. Once public consultation on the proposed amendment has closed we may be in a better position to know what those financial considerations could be. As noted immediately above the Act provides Council with the power to stop the development of a proposed amendment at any stage.
58. In making this recommendation, officers have given careful consideration to the purpose of local government in section 10 of the Local Government Act 2002. Officers believe that this recommendation falls within the purpose of the local government in that it meets the current/future needs of the community.
Appendix 1 - Hutt City Local Alcohol Policy (Under Separate Cover)
Appendix 2 - RPH and Police Briefing paper (Under Separate Cover)
Appendix 3 - City Safe Manager Report (Under Separate Cover)
Appendix 4 - Summary of Survey Results (Under Separate Cover)
Appendix 5 - Relationship between high deprivation areas, health and crime indicators and number of existing off-licences (Under Separate Cover)
Appendix 6 - All Off-licences (Under Separate Cover)
Appendix 7 - High and Moderately High Risk Suburbs (Under Separate Cover)
Appendix 8 - Sensitive Sites and other Off-Licences within 250m of a Bottle Store (Under Separate Cover)
Appendix 9 - Bottle Store within 250m - 500m of a Sensitive Site (Under Separate Cover)
Appendix 10 - 250m - 500m from a Bottle Store (Under Separate Cover)
Appendix 11 - Local Alcohol Policy and the District Plan (Under Separate Cover)
Author: Graham Sewell
Principal Policy Advisor
Author: Bradley Cato
Reviewed By: Wendy Moore
Divisional Manager, Strategy and Planning
Approved By: Kim Kelly
General Manager, Strategic Services