Australia: Licensed Premises Changes To POPEs And Trial Periods

gadens lawyers will shortly release a separate more comprehensive Update on changes to laws relating to licensed premises. In the meanwhile, the following reforms are noteworthy.

Place of Public Entertainment (POPE)

The package of reforms instigated by the Amendment Act also proposes to make changes to POPE regulations so that they only apply to larger theatres and public halls, for which they were originally designed. This may mean that local bars, pubs, restaurants and cafés do not require a POPE licence provided certain conditions are met. While these changes were discussed by the Lower House, they do not form part of the Amendment Act as such because POPEs are not regulated by the Environmental Planning & Assessment Act (EP&A Act), but rather through the State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007. It is the SEPP which creates a requirement to obtain development consent for a POPE.

Important changes to POPEs occurred back in October 2007 when the regulation of POPEs was transferred to the EP&A Act, by requiring that development consent be obtained for POPE use. Although this was meant to "cut red tape" and the duplication of approvals required for POPE venues, the transfer of regulation to the EP&A Act did very little to simplify the process and in fact probably complicated it in many respects (see our update of October 2007 here).

The changes now proposed to POPEs evidence a more genuine effort to simplify the system. Currently, the mere fact that a premises provides "entertainment", whether this be simply a pianist at a restaurant, or a DJ at a bar, elevates the premises to the status of a "place of public entertainment", requiring it to comply with the BCA provisions relevant to a class 9B building (classified as a "place of public assembly"). This often required costly upgrades with regards to fire and access requirements which would not have been necessarily be required if the restaurant or bar did not provide "entertainment".

It is now proposed to amend the classification criteria for a "place of public entertainment". Indeed, it seems likely that the term will disappear altogether, as it has been removed from the EP&A Act. The new focus will be not merely on the provision of "entertainment" but on the importance of this activity to the operation of the premises. If the provision of entertainment is merely ancillary to some other use, such as the restaurant or bar use, the mere provision of this entertainment will not elevate the premises to a "place of pubic entertainment venue" requiring special approval. Venues such as nightclubs however, where the provision of entertainment is often more than merely ancillary, are likely to still be caught by the requirement for some form of entertainment approval.

Live entertainment will often be more borderline. Where a band is playing in the corner of a bar but is not the focus, this may escape the requirement for an entertainment approval. However, where a bar is operated as a de-facto concert venue and patrons purchase tickets specifically to see the band, and a separate area of the bar is dedicated to the purpose of providing live entertainment, this is likely to require an entertainment approval.

It is expected that it will be several months before these changes come into effect, as the SEPP either needs substantial amendment, or a new SEPP needs to be developed. Consultation will be required, and new regulations will need to be formulated. It is not known at this stage what procedure will apply for applications for entertainment approval- such as whether a development consent or some other form of approval will be required.

Ability for consents to be subject to constant trial

Operators of licensed premises should also be aware of the new power granted to Councils to impose conditions subjecting their operations to constant review.

Under the Amendment Act, trial periods for extended hours of operation and increased number of patrons will no longer be required, as Council can simply impose a condition effectively allowing itself to review and amend hours and patron numbers at any time. It seems likely that councils will quickly use this power and a permanent extension of trading hours or patron numbers looks likely to become a thing of the past.

If Council does amend hours or patron numbers on review, this decision may be appealed to the Land & Environment Court.

"Review" conditions of this nature may only be imposed in respect of entertainment facilities, function centres, nightclubs, pubs and registered clubs. A review condition on a consent will effectively mean that the venue is always on trial.

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.