Australia: Licensed Premises Update: Commencement Of Important Changes To Approval Of POPEs

Important changes to the process and substance of Place of Public Entertainment (POPE) approvals are about to commence.

From next week, an application for POPE approval will have to be by way of a full development application to Council, rather than the much simpler approval system under s 68 of the Local Government Act 1993. These changes to assessment of POPE applications under the Environmental Planning and Assessment Act 1979 (EP&A Act) (as flagged in our November 2006 update - click here) will commence on Friday 26 October 2007.

POPE approvals allow premises (including licensed premises such as pubs and clubs) to provide public entertainment, such as live music. Many licensed premises already have POPE approvals in place. The continued use of existing POPEs will be subject to conditions introduced by way of amendment to the Environmental Planning and Assessment Regulation 2000. Most of these conditions relation to compliance with the Building Code of Australia, and related matters. This may cause significant problems for older premises that have operated for many years under old POPE approvals. By way of an example, the requirement to comply with current BCA standards in relation to emergency egress may dramatically reduce the number of patrons allowed on the premises, compromising viability.

State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007 has been adopted, setting out special matters for consideration by Council when assessing a DA for use as a POPE. Previously these matters were generally confined to safety and structural adequacy. Under the new legislation however, broader amenity considerations apply such as:

• minimising crime risk

• adverse impacts on persons in the vicinity of noise

• whether hours of use as a POPE should be limited

• parking and traffic impacts

• maximum number of people in terms of safety.

The use as a POPE of some small licensed premises and public halls (less than 300 m²) located outside of residential zones may be considered complying development (not requiring consent).

Simplification of the system?

Although the change has been heralded as a simplification of the approval process by removing the need for a separate approval, it should be noted that this change will almost certainly result in greater operational restrictions being placed on POPEs through the DA process. In the past, Councils would frequently issue POPE approvals to hotels and nightclubs etc, if satisfied that the premises had development consent to operate. The provision of entertainment was considered merely ancillary to the approved use. More recently however, many Councils have begun to require that premises have specific development consent for use as a POPE before a POPE licence will be issued. This meant that premises with a DA to operate would also need to apply for a DA for provision of public entertainment AND then a POPE application under the Local Government Act. The new legislation now makes it legitimate for a Council to require a DA specifically for use of premises as a POPE.

Requiring a DA for use as a POPE allows councils to exert much greater control over a premises' entertainment operations, both at the assessment stage and in terms of enabling Councils to impose rigorous conditions of development consent (for example, the adoption and implementation of a Plan of Management with increased security staff). All development assessment factors under section 79C of the Environmental Planning and Assessment Act will be relevant, including consideration of "the public interest". Submissions from neighbouring landowners will often be of chief importance. Public submissions were never made or considered in relation to POPE applications under the LG Act, as there is no requirement for such applications to be advertised.

However, it is possible that the change will result in a simplification of the POPE approval process in many local government areas, where Councils have already in effect been requiring a DA for use as a POPE (and then requiring a further LG Act approval in addition to this).

What about existing POPE operations?

The changes will undoubtedly impact upon existing POPE premises. In particular, the existing use and continuing lawful use provisions of the EP&A Act are specifically amended so that conditions are automatically placed on the operation of existing POPE premises. At the moment, the Regulation only imposes BCA related conditions. However, it is important to note that there is a potential for the Regulation to be amended in the future to impose more substantive conditions on the operation of such premises.

There is some short term relief, as conditions of existing POPE approvals will continue to apply for 2 years (through to 26 October 2009). Importantly, Applications for POPE approval made before 26 October 2007 (within the next week) will be assessed under the old regime, without reference to the more stringent considerations under the EP&A Act.

Existing operators should, as soon as possible, seek specific advice as to how the changes may affect their premises and operations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.