Policy
In NSW in 2007 an exemption to the BCA assembly building provisions were progressed in the State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007 (4 Use of existing building comprising licensed premises, restaurant or public hall as place of public entertainment). These provisions could be considered to have a similar function to the October 2014 changes to the Victorian planning system through the Building Amendment (Live Music) Regulations 2014.
This regulation change ultimately failed – as NSW consent authorities considered that the reference did not give them authority to default to the exemption over the BCA.
This position would seem to be in conflict with the LEGISLATIVE ARRANGEMENTS GENERAL of the BCA which state:
The BCA is given legal effect by building regulatory legislation in each State and Territory. This legislation consists of an Act of Parliament and subordinate legislation which empowers the regulation of certain aspects of buildings and structures, and contains the administrative provisions necessary to give effect to the legislation.
Any provision of the BCA may be overridden by, or subject to, State or Territory legislation. The BCA must therefore be read in conjunction with that legislation. Any queries on such matters should be referred to the State or Territory authority responsible for building regulatory matters.
For the record, the 2007 NSW provisions are as follows;
4 Use of existing building comprising licensed premises, restaurant or public hall as place of public entertainment
(1) The use of an existing building comprising licensed premises, a restaurant or a public hall on land that is not in a residential zone as a place of public entertainment, but only if:
(a) the noise level emitted during the public entertainment (asdetermined in accordance with Australian Standard AS 1055.1—1997,
Acoustics—Description and measurement of environmental noise, Part 1: General procedures) does not exceed the ambient background noise level in any octave band centre frequency (31.5Hz to 8KHz inclusive) by more than 5dB
(A):
(i) at the boundary of the lot on which any residential accommodation is located, and
(ii) if the existing building is on the same lot as (but not in) a building containing any residential accommodation—on the outside wall of the building containing that accommodation, and
(iii) if the existing building contains any residential accommodation—within the residential premises concerned, and
(b) the floor area of the part of the building used as a place of public entertainment does not exceed 300 square metres.
(2) Subclause (1) (a) (i) does not apply in relation to any boundary of the lot on which the existing building is located unless that boundary is shared with another lot on which residential accommodation is located.
(3) A reference in this clause to a building does not include a reference to a temporary structure
(e) the number of persons occupying any floor area, in the part of the existing building used as a place of public entertainment, that contains seating in rows or that is set aside as standing room or for dancing must not exceed the fewest of the following at any time while entertainment is being provided:
(i) 300 persons, or
(ii) an average of 1 person per 0.66 square metre of that floor area,
(f) the number of persons occupying any floor area (other than the floor area referred to in paragraph
(e)) in the part of the existingbuilding used as a place of public entertainment must not exceed1 person per square metre of that floor area at any time while entertainment is being provided,
Note.
The floor area of the part of the building used as a place of public entertainment must not exceed 300 square metres where the building concerned comprises licensed premises or a public hall. (See clause 4 of Schedule 3.)
(g) a person must be appointed to ensure that paragraphs (e) and (f) are complied with,
(h) a sign must be displayed in a prominent position in the part of the existing building to be used as a place of public entertainment
that specifies:
(i) the maximum number of persons who are permitted in the building at any one time while entertainment is being provided, calculated in accordance with paragraphs
(e) and
(f), and
(ii) the name, address and telephone number of the council of the area in which the building is located, and
(iii) the name and business telephone number of an owner or manager of the part of the building concerned,
(i) the LA10 noise level emitted while entertainment is being provided (as determined in accordance with Australian Standard
AS 1055.1—1997, Acoustics—Description and measurement of environmental noise, Part 1: General procedures) must notexceed the ambient background noise level (LA90) in any octave band centre frequency (31.5Hz to 8KHz inclusive) by more than 5dB:
(i) at the boundary of the lot on which any residential accommodation is located, and
(ii) if the existing building is on the same lot as (but not in) a building containing any residential accommodation—on the outside wall of the building containing that
accommodation, and
(iii) if the existing building contains any residential accommodation—within the residential premises concerned.
(2) Subclause (1) (i) (i) does not apply in relation to any boundary of the lot on which the existing building is located unless that boundary is shared with another lot on which residential accommodation is located
NSW State Environmental Planning Policy (Temporary Structures and Places of Public Entertainment) 2007
Live Music Venues and the BCA Issues Paper