Relocations and the Waikiwi decision
A High Court decision in 2013 concerning consent for a class 4 venue relocation, known as the Waikiwi Decision (Waikiwi), has now been affirmed by a 2019 Gambling Commission decision. That decision explored the terms ‘venue’, ‘class 4 venue’, ‘place’ and ‘address’.
Gambling Commission decision
When a class 4 venue proposes to move to a new location nearby, a council consent will not be needed if the move meets the criteria set out in the Waikiwi decision. Instead, the society will need to apply to the Department to amend the address on the class 4 venue licence.
To come under the Waikiwi precedent, the society will need to satisfy the Department that all four criteria set by the precedent are met, on the balance of probabilities. These are set out below.
As moves that meet the Waikiwi criteria are not considered to be class 4 venue relocations, councils cannot prevent such moves, even when their relocation policies prohibit class 4 venues from relocating.
Any proposed move that does not meet the Waikiwi criteria will need to be assessed by the council against its relocation policy.
Gambling Commission decision GC 04/19
Waikiwi decision — relocation criteria
The High Court decision in 2013 (Waikiwi) concluded that, while the term ‘class 4 venue’ has a wide meaning, it does not include an “address”. This indicates that Parliament did not intend that the term “place” means land or buildings at a specific address.
Further, “when a building such as the tavern building is relocated to a different site in close proximity to its present address it is still the same venue”.
The Court found that a new location may not be a change of venue if:
- the new building will be in a site that is very close to the existing site;
- the class 4 venue’s name will be the same;
- the ownership and management of the venue will be the same; and
- for all intents and purposes, the patrons and the public will regard the venue as being the same venue, even though its physical location will change in a relatively minor way.
If a class 4 venue changes site in line with the above requirements, it is not considered a new venue and therefore does not require a council consent, nor is it considered a relocation and it will not trigger the application of a council’s relocation policy.
High Court (Waikiwi) decision: ILT Foundation v Secretary for Internal Affairs [2013] NZHC 1330 (PDF, 133KB)
