Morgan Lewis is still in shock after being told by Council he can no longer have live music at his café, Fillmores, in central Kiama.

The Development Control Order was issued on Monday, stating he had breached conditions of consent regarding noise and operating out of the permitted hours.

As the organiser of the Kiama Jazz & Blues Festival (along with his sister Becky Guggisberg), Mr Lewis says that the seven shows organised at Fillmores over 10-11 March will not be able to proceed there, and that he is worried other venues would be affected if there was one rule for all.

“There are a lot of cafes approved through change in use [rather than a DA] – are they going to be shut down too? Or is it just that if no one is complaining then Council doesn’t bother checking their conditions?” he says.

Ms Guggisberg has written to Kiama councillors seeking clarification on the situation and for the decision to be rescinded.

“We ask that the Control Order in relation to Fillmore’s Café be urgently rescinded to enable the contractual responsibilities and obligations of the event organising committee to be met. We also ask that Kiama Council confirm their support of all businesses who are hosting live performances throughout the three-day Festival,” the letter says, noting that the Festival has 36 bands performing a total of 77 times at 34 different venues.

“Only 24 of the 77 performances are occurring at venues that have taken a DA consent path, to the best of our knowledge, the festival would require council to clarify consent conditions on all 34 locations.

“Fifty-three of the performances (69%) are occurring at venues which do not have planning approval for live music and are instead relying on the 2009 NSW Department of Planning and Environment exceptions.”

Fillmores is located down the lane, behind Parfait Pattiserie

Mr Lewis is concerned that his business has been singled out because of the determination of a complainant, who he sees as vexatious, despite the area’s B2 zoning.

“The Council keeps listening to this vexatious complainant and, due to the cost brought on with dealing with the complaints, they are feeling the financial pinch and to shut my business gets rid of the complaint,” he says.

“They should be listed as a vexatious complainant, and then we be allowed to keep music and they [Council] will save money.”

Mr Lewis was told he needed to cease any noise over 5dB above the background noise and trading outside of permitted hours immediately or risk heavy fines. He points out that a coffee grinder is louder than that.

Mr Lewis strongly denies trading outside of his hours and says that State planning rules first introduced in 2009 encourage 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.

“There is a disconnect between what local, State and Federal governments are encouraging and what our local council is enforcing and somehow we need to bridge that gap,” says Mr Lewis.

“We’ve been encouraged to have alfresco dining - I’ve received a grant to do it. We’ve been encouraged to have live music - I’ve received a grant to do it.

“But I have alfresco dining and live music and I get shut down by the Council.

“My approval as a café allows live performances as very clearly stated throughout planning legislation.”

Frank Sultana had his homecoming concerts at Fillmores over the weekend

He says the conditions he is alleged to have breached no longer apply to others undertaking a change of use now, but doesn’t want to do a DA given the opposition he knows it would face.

“At least now I have something, even though the music has been taken away.”

As it was, opposition to his business’ change of use resulted in the capacity of the 300sqm venue being capped at 50 patrons.

“In the very detailed and lengthy list of complaints from the neighbours, two of the days where trading beyond permitted hours and above permitted sound levels were reported Fillmore’s was not open,” says Mr Lewis.

He points out that Kiama Council’s new Town Centre DCP says, “If you live in the town centre expect to hear sound generated from pedestrians, laughter, dining and live music.”

Kiama Council was contacted on Monday for comment.