Local blues and roots nightclub, Fillmore’s, is taking the Kiama Council to court to contest the stop use orders and fines.

Fillmore’s owner Morgan Lewis refuses to apply for a Development Application (DA), and has consulted planning legislation experts.

“They agree that what we are doing is supported by the legislative framework created to support the live music industry in NSW and Australia,” Lewis said.

“We have legal representation who recently tried to walk Kiama Council’s latest compliance officer through how Fillmore’s is legally trading as a business but to no avail.

“I have received a $3000 fine for ‘not complying’ to which I have requested the council explain their position as no further detail was given on the fine.

“Kiama Council for whatever reason, have been hell-bent on shutting down a very wholesome, inclusive, accessible, all ages, cultural hub that is putting us on the map and weekly brings visitors from out-of-town to spend in our community,” Lewis said.

Council’s legal advice states that Fillmore’s needs a DA to continue its operations as a nightclub, especially for weekend-long festivals and live ticketed events.

Fillmore’s has a complying development certificate to operate as a café, issued by a private certifier. It also has a liquor licence supported by council in 2022.

According to the council, the conditions of consent specify matters such as low noise levels, strict operating hours and limitations on the number of patrons.

“The ticketed amplified live music events are not included within the conditions of consent for a café and require a separate consent. The only way to get these is to lodge a DA, like all local businesses and home builders,” a council spokesperson said.

The development control order issued to Fillmore’s on 17 February 2023 set out a range of building and safety issues, which have not been fixed.

Fillmore's on Manning Street began trading around the same time luxury shop-top apartments were built next door and some tenants have complained about the noise.

In the last two years, there have been more than 60 complaints from residents about noise.

Two of the apartments adjacent to Fillmore’s are now up for sale. A source inside the apartment complex told The Bugle the weekend noise from the nightclub was the main reason the owners were selling.

“Is there electrified music at El Corazon? El Corazon said recently on the community forum it spent $50,000 a year on live music,” Lewis said. “This is performed outside underneath residential units. Do they have a DA to be an entertainment facility, no. Why? Because they don’t need one,” he said.

But the Terralong street Mexican restaurant has live music from 1-4pm on weekends, it doesn’t promote itself as a music venue nor does it charge people to get in.

The COVID-19 lockdown and noise complaints have killed 1,300 small and mid-sized live music venues in Australia – about one-third of the live music sector – according to the last APRA annual report.

Until March 2023, NSW had lost more than half of its live music venues, with just 133 venues on the books. But since then, 157 pubs, clubs and other live venues have come onboard and qualified for the NSW government extended trading incentives in return for staging live music and backing local musicians.

The NSW budget has set aside more than $45.4 million in funding in support for artists and live venues through funding to Sound NSW and the Office of the 24-Hour Economy Commissioner.

Yet while the council will still enforce its local statutes and codes, the Office of the 24-Hour Economy Commissioner will assist local councils through reform, grant programs and precinct-based initiatives, to help create vibrant communities across NSW.

“We want diversity and an economy that extends beyond 4pm. We want vibrancy that inspires the next generations,” Lewis said.

“The change is here and the power is being taken from local government as they are too resource poor and are not supporting live music as is needed,” Lewis said.

Recently, Lewis was awarded a $45,000 grant from the Commonwealth Government as part of its Revive initiative. Revive is a five-year-plan to renew Australia's arts, entertainment and cultural sector.

The Federal Member for Gilmore Fiona Philips MP, who presented the grant, said it was important to support and grow Australian live music.

“It is directed at increasing performance opportunities for original contemporary music by Australian artists at venues like Fillmore’s, which will stimulate a vibrant and sustainable music industry ecosystem,” Philips said.

It was unknown whether Lewis’ legal action was being funded from the $45,000 grant.

Fiona Philips’ office did not reply to questions from The Bugle.