Local Government and Live Music – Friend or Foe?

by John Wardle. Published in Music Forum magazine, Vol 19 Issue 2 (February 2013)

Many contemporary musicians see local government as the greatest challenge to their ability to practise their craft and earn a living performing, and to participate in the cultural life of their community.

By acting for residents and developers on complaints against venues, importing outside artists for festivals and special events, and through the legacy from requiring development consent and compliance for live gigs whilst exempting pokies, gambling, broadcast sport, recorded music and screen based entertainment, NSW local governments have delivered a perverse result contrary to their cultural accords by actively killing local and live subculture.

CONTENTS

Policy Issues | NSW, the State of ‘Play’ | Council Staff | Policy Development and Reform | Consultation | Amenity Complaints Process | Zoning and Development Controls | Gigs, Festivals, and Special Events | Loading Bays / Parking Permits | In Closing

Policy Issues

Cultural accords and objectives	Recognition of the changing nature of entertainment technologies and the implications for live and local. The medium is the message.
Policy Consultation	Representing cultural policy in planning - LEP’s Representing cultural interests in policy development across EPA, BCA, Liquor and Planning legislation Advocate for cultural policy in the current consultation on the NSW Environmental Planning and Assessment Act 1979 reform
Council Staff	Cultural officers to be trained on planning process. Cultural officers to mediate in venue amenity disputes Cultural training for planners, rangers, and building inspectors Cultural officers to undertake survey of amenity complaints
Venue Complaints Process	Balance order of occupancy / agent of change principles in liquor process with environmental protection process for NSW, SA, QLD, WA, and introduce these principles into the Vic EPA SEPP. Advocate with music sector for a single amenity complaints process - remove duplication of liquor / POEO. Introduce principles and conference model for venues without a liquor licence ( theatres, community centres, public halls). One stop shop! Cultural officers to undertake survey of amenity complaints
Zoning and development controls	Require development controls as applied to residential developments adjacent to railway corridors and busy roads for residential developments in night economy zones - Balance amenity complaints against residential construction compliance.
Gigs, Festivals, and Special Events	Local artist quota in festivals, require local collaborations of imported headline acts. Quota to include established local venues in festivals. Small grants for new programs in pubs and bars. Grants of small P.A. for restaurants and small bars.
Loading Bays / Parking Permits	City of Yarra / Music Victoria precedent. Musicians able to use loading bays similar to a visitor permit.
BCA interpretation and development approvals	The definition of Assembly building in the Building Code of Australia (BCA) is a crucial issue for the national cultural environment. Other states to adopt the NSW variation.

NSW, The State Of ‘Play’

The cultural and regulatory environment under which contemporary musicians in NSW have been working since the former Place of Public Entertainment (PoPE) process was introduced in the late 1980’s has evolved rapidly.

• The competition for the live performance and the entertainment dollar has multiplied.
• Entertainment options have followed the technology, exploited exemptions.
• Screens in pubs and clubs have grown from one small telly to massive plasmas and projectors on every wall.
• Broadcast sporting events have expanded from weekend afternoon matches to nights all through the week for all codes and from around the world.
• The digital revolution has provided endless imported content and connectivity - staying in is the new going out.
• The internet has given many opportunities to artists but also free access to amazing musical content.
• Gambling in pubs and clubs has proliferated, with keno, TAB, dogs, trots and racing available around the clock.

The introduction of poker machines to hotels in 1996 gives great insight into how entertainment options are regulated in NSW. The following Act reference is still current. Read it. Think about it. Recognise it.

GAMING MACHINES ACT 2001 - SECT 209

Relationship with Environmental Planning and Assessment Act 1979

(1) An environmental planning instrument (whether made before or after the commencement of this section) under the Environmental Planning and Assessment Act 1979 cannot prohibit or require development consent for, or otherwise regulate or restrict, the installation, keeping or operation of approved gaming machines in hotels or on the premises of clubs or any other premises.

This state government law ensures local government has no development control over the change of use of pubs and clubs from retail hospitality use to that of the local casino.

And yet until the removal of PoPE development consent in 2009 even the smallest scale live performance required two development applications - the first to change the use to a place of public entertainment, and the second for theatre level building compliance.

Whilst in South Australia large screens required entertainment approval, in NSW, they didn’t.

Almost all of these entertainment options are screen or machine based and involve imported content. None of them have been regulated at the local government level.

A pub or club whose focus is pokies will have little impact on local amenity late at night, but a venue with a band will have inspired and excited groups of people out late having FUN! Does policy support bands - or pokies?

So where has local government been in the policy debate? What has been the practice for venues, jobs and opportunities in the night economy?

Recognition of the changing nature of entertainment technologies and the implications for live and local must be reflected in local government policy and practice if local content is going to have a chance against imported. It’s time for a shift in local government culture.

Council Staff

Local government cultural officers are often trained and practising artists and employed for their work in festivals and special events. We know their hearts and minds are committed to advancing the arts in their communities.

In smaller councils and regional areas cultural officers may operate on small budgets and have multiple job functions alongside cultural responsibilities. But how much input and training in the planning process do they have? And are planners, rangers, and building inspectors equally committed to and trained on cultural issues.

Cultural officers and some elected councillors are committed advocates. But the planners, policy makers and regulators: are they friend... or foe?

Policy Development and Reform Consultation

There has been no greater recent strategic policy intervention for contemporary musicians in NSW than the removal of Place of Public Entertainment (PoPE) consent process from the NSW planning system.

There was no greater opposition to this reform than that undertaken by the NSW Local Governments and Shires Association (LGSA). The NSW process took four amendments to the planning legislation, with the 2007, 2008, and 2009 Act amendments and regulations bitterly opposed. Those of us at the table through these discussions will not likely forget the antagonism from these debates.

Through the time I was lobbying on liquor and planning reform in NSW for contemporary music, I did the rounds regularly of council building inspectors, elected councillors with experience in planning, and consultants to the hospitality industry. It was a common response from building inspectors that their hands were tied, they didn’t make the rules, and were obliged by law to require compliance, and yet when it came to actual consultation on policy reform options, the opposition was fierce. When reforms were introduced, practice notes and directions were required to force changes in practice. Whilst the LGSA cultural staff were in strong support of change, LGSA policy officers were obstructive and negative.

It was apparent that the motivations included:

• Consistency and challenges with implementing new processes that depart from the past
• Revenue: inspections, approvals, appeals and process are revenue generating
• Submissions were made by the City of Sydney council as PoPEs were being reformed that the city needed the process to fund their compliance department. I regulate therefore I am.

Perhaps there is an inherent culture of regulators - as noted by the Stanford prison experiment findings /Yale Milgram experiment - where regulators lose objectivity.

In discussions with music policy representatives in South Australia, Victoria and the United Kingdom, it is apparent that local government representatives are taking a similar and equally hardline stance against policy reforms for contemporary music in planning, licensing, and environmental protection regulation. (Of particular note is the UK LGA – which, having actively opposed progressive changes to the notoriously anti-cultural UK Licensing Act, immediately changed position in support as a small gigs exemption passed the parliament. Their opposition and eventual about-face is noted in the chronology on the UK original live music forum web site [i]. It would be funny if it wasn’t so serious).

The contemporary music sector is well aware that at the policy table, local government lobbies against us.

If we look at the NSW Liquor Act, the music sector worked hard to see order of occupancy principles included in the law to protect venues and jobs and give context in amenity disputes.

LIQUOR ACT 2007 - SECT 81 [ii]

Decision by Director-General in relation to complaint

(3) The Director-General is to take the following matters into consideration before making a decision under this section:

(a) the order of occupancy between the licensed premises and the complainant,

(b) any changes in the licensed premises and the premises occupied by the complainant, including structural changes to the premises,

(c) any changes in the activities conducted on the licensed premises over a period of time.

(4) For the purposes of subsection (3), "complainant" does not include a complainant who is the Commissioner of Police or a person authorised by the local consent authority.

An exemption however was brokered for local councils, (Sect 81.(4)) - an asymmetry created, policy failure.

If we consider these principles to be sound for liquor licensed premises, then why not for unlicensed premises such as theatres, community centres and local halls, and... why not for police and ... local government?

Amenity Complaints Process

For such an important regulation for the cultural life of our communities, there is little understanding of how the amenity complaints process actually works in NSW.

There is duplication across liquor licensing and environmental protection processes resulting in an asymmetry.

Order of occupancy principles in liquor licensing can be outflanked by pollution laws and fines paid to council.

Surveys should be undertaken to understand this process better and be made publicly available.

Understanding amenity complaints process in NSW Local Government. Survey Criteria.
How many complaints:	Commercial - licensed Commercial - no liquor licence Residential
Type of complaint by premises	Amenity- people out in the street Loud music bands Loud music -dj's Loud music recorded Broadcast sport Live sport
Process - which was used:	OLGR Disturbance Complaint Noise Abatement Order Noise Abatement Direction Acoustic report requested Change in licence conditions How many went to court?
Who prosecuted:	OLGR Council Rangers Police Licensed Premises Coordinator / Council staff

The fact that council employees are acting on behalf of complainants should be balanced by expanding the role to include council cultural officers to liaise in these processes.

We need a mediation model for amenity complaints rather than litigation.

We need a single amenity complaints process - to remove duplication of liquor / POEO process, and introduce order of occupancy/agent of change principles and conference model for venues without a liquor licence (theatres, community centres, public halls) - not just for NSW, but also for SA, QLD, WA, and introduce the agent of change / order of occupancy principles into the Vic EPA SEPP.

Zoning And Development Controls

In NSW we require sound proofing for residential developments adjacent to railway corridors and busy roads.

STATE ENVIRONMENTAL PLANNING POLICY (INFRASTRUCTURE) 2007

102 Impact of road noise or vibration on non-road development [iii]

(3) If the development is for the purposes of a building for residential use, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the building-35 dB(A) at any time between 10 pm and 7 am

The greatest challenges faced by live music venues are amenity complaints. Environmental noise is of course going to be a part of night economy zones and yet residents that have an unreasonable expectation of suburban amenity are indulged by the failure of local governments to apply appropriate planning controls.

It is my position that this standard should also be required of residential developments in night economy zones. Not just in the late trading precincts of the City of Sydney, but in the main streets of towns and suburbs across NSW as urban density increases to support population growth.

Residents making amenity complaints in night economy areas should also be compliant with SEPP controls to balance the onus of responsibility if any acoustic reports or construction measures are to be required.

The NSW Environmental Planning and Assessment Act 1979 is being reviewed by the O’Farrell Government, and there has been discussion that SEPPS will be potentially transferred to Local Environmental Plans (LEP’s).

ArtsNSW and the LGSA should support this position in consultation on the reforms. Do they?

Gigs, Festivals, and Special Events

A musician of stature in the Sydney scene once noted to me that ‘The Sydney festival comes to town and everyone’s out of work for a month’.

Surely the ability for local musicians and venues to benefit and leverage off festivals and funded local government events should be a fundamental objective of local government cultural policy. Whilst festivals may engage imported curators and effectively wash their hands of local content responsibilities, this is again an example of a perverse outcome contrary to cultural accords.

A local artist quota should be considered for festivals and special events, and consideration of conditions to require local collaborations with imported headline acts. We have quotas for local content in broadcasting. It’s time for more local content in major publicly funded festivals in particular. The quotas should include established local venues in festivals and small grants could also be available for new gigs in pubs and bars to encourage new venues. Additional grants of small P.A. for restaurants and small bars could be considered. A small PA is less than $1,000. For $20,000, 20 new small gigs could be created, That’s bang for buck.

Including local venues and musicians in festivals is important to maintain cultural access once the festival is over.

The further concern from the music sector is that by supporting grants and special events yet being hardline with policy and venues, local government music policy is promoting a culture of subsidy over the free market and regular jobs, of prescribing what is art and permitted whilst restricting what would develop organically, and of sponsoring temporary competition over established local venues.

Expanding local government cultural policy to planning and regulatory issues as well as grants and special events must be done to balance the policy framework.

Loading Bays / Parking Permits

Finding a park and loading equipment is often incredibly difficult for musicians doing gigs in metropolitan areas. A parking fine will often be as much and maybe more than the gig’s fee.

Clarification on the use of loading zones for musicians should be undertaken and consideration granted. Consideration should given to a permits process - Reference Yarra City Council temporary permits precedent [iv].

Building Code of Australia (BCA) - Interpretation And Development Approvals

Of crucial importance nationally to local government music policy is the interpretation of the definition of Assembly Building under the BCA. If premises are classified as an Assembly Building then a much higher level of construction compliance is required, which would only apply to live entertainment, and not entertainment provided by screens or machines.

In South Australia, for example, Adelaide City Council does not apply this definition to approving venues having ancillary entertainment to a retail consent, whilst in the next LGA, The City of Charles Sturt Council will.

It is this reference that was the ‘showstopper’ that supported the notorious NSW Place of Public Entertainment (PoPE) consent process until it was removed in 2009, and NSW now leads the way.

The BCA Assembly Building definition reads as follows - note (c)(i)

Assembly building means a building where people may assemble for— 

(a) civic, theatrical, social, political or religious purposes including a library, theatre, public hall or place of worship; or

(b) educational purposes in a school, early childhood centre, preschool, or the like; or

(c) entertainment, recreational or sporting purposes including— 

(i) a discotheque, nightclub or a bar area of a hotel or motel providing live entertainment or containing a dance floor; or

(ii) a cinema; or

(iii) a sports stadium, sporting or other club; or

(iv) transit purposes including a bus station, railway station, airport or ferry terminal.

           Note that the 2009 NSW Variation does not have the (c)(i) reference.

Assembly building means a building where people may assemble for— 

(a) civic, theatrical, social, political or religious purposes including a library, theatre, public hall or place of worship; or

(b) educational purposes in a school, early childhood centre, preschool, or the like; or

(c) entertainment, recreational or sporting purposes including— 

(i) a cinema; or

(ii) a sports stadium, sporting or other club; or 

(iii) transit purposes including a bus station, railway station, airport or ferry terminal.

The National Construction Code (NCC) under which the BCA sits is an initiative of the Council of Australian Governments (COAG), and there are best practice obligations inherent in COAG agreements. The 2009 NSW Variation should be adopted nationally for those states where the (c)(i) reference is applied.

In Closing

These local government music policy issues are of importance nationally.

Consideration should be given to developing a live music cultural accord and a dedicated issues paper for the Meeting of Cultural Ministers.