Fillmore's hopes of continuing to host live music through its current consent have been dashed, with Council giving it three weeks to comply with its consent conditions.

“We have three weeks of grace, and then we have to stop having any live entertainment – not just music but comedy or other performances,” says owner Morgan Lewis.

He contends that State planning rules encouraging the live music industry give all cafes the go ahead for live music without the need for separate approval, with the noise level a recommendation.

“The legislation clearly states that when you are open you can have live performances. It is very clearly broken down with examples on the planning website,” he says.

However, after receiving legal advice on the matter, Kiama Council’s Director Planning, Environment and Communities, Jessica Rippon, says it is more nuanced than that and some of the live music recommendations being relied upon by Fillmore's aren’t legislated.

Comedian Paul McDermott performing at Fillmore's this week

“The part of the legislation that talks about live music being an exempt development refers specifically to the requirement that you have to meet the conditions of consent for your facility, otherwise you have to go through a process such as a change of use that allows you to do what you are doing on site,” she says.

Council has told Fillmore's it has until 2 June to comply with a Development Control Order requiring it meet its conditions of consent regarding noise and operating out of the permitted hours. 

Under these the café must cease any noise over 5dB above the background noise and trading outside of permitted hours, and restrict patronage to 50 seated customers, from that date or risk heavy fines.

The Order was originally imposed on 28 February, but was extended to allow for further investigation of the owner’s take on the matter and allow for Kiama Jazz & Blues Festival performance to happen there.

“We are not closing them, we are just asking them to meet their conditions of consent,” says Council’s Director Planning, Environment and Communities of the latest development.

“Alternatively they can lodge a DA to vary their conditions, or seek an alternate form of approval that allows them to do the kind of live entertainment that they are wanting to do onsite.”

Mr Lewis strongly believes he has the right to continue to operate as is.

“The reality is they want us to do a DA so they can shut us down,” he says.

“If you speak with businesses in town there isn’t a DA that goes through smoothly. It feels like a poisoned chalice.

“Nothing goes through quickly, and the restrictive conditions nearly send them bankrupt.

“You can just imagine what they will try to impose on us.”

Ms Rippon says, “We would love to see the vibrant venue that is Fillmore's continue for many years to come, however it must do so with the appropriate approvals.

“We are keen to work with the owners to support them through the application process and to have a venue that supports the arts and provides a safe and positive environment for the community.

“There is a solution to this issue, and that is lodging a DA and working through the process required to support Finding Filmore's be the best live music venue that it can be.”

While loathe to go to court, Mr Lewis believes he has a very good case and will do so as a last resort.

“I am doing all I can to avoid taking them to court. It will be a waste of time, stress and our community’s money,” he says.

The laneway from Manning St leading to Fillmores

He is consulting with legal and planning experts, talking with other businesses and our MP, and says he has a direct line to the newly created Minister for Live Music.

“They are saying our primary purpose is not food and drink, it is live entertainment. But how do they explain me being open more nights without live music – it has to be equal to or less than [to be auxiliary part of the business],” says Mr Lewis.