The main purpose of a café is to provide (alcoholic) beverages for consumption on the premises, while the main purpose of a discotheque or concert hall is to play music. At least this is the distinction made by the municipality of Utrecht in its zoning plan for the city center. But a café where live music can be heard on two nights a week and where a DJ performs weekly, is that still a café or is it a discotheque or concert hall? According to the Division, it remains a café which therefore fits within the zoning plan, according to the ruling of August 22 last (ECLI:NL:RVS:2018:2754).
Request for enforcement
The reason for this ruling is an enforcement request by a group of residents against eatery and pop venue Stathe in Utrecht. According to them, activities take place in the café that violate the zoning plan, as live performances and performances by a DJ are organized several times a week. The residents experience noise pollution as a result.
This is because, according to the zoning plan, only a catering establishment is permitted where the emphasis is on providing liquor. A catering establishment where the emphasis is on the performance of music and the opportunity to dance does not fit in with the zoning.
However, the college denied the enforcement request, taking the position that the use of the parcel does comply with the zoning ordinance.
Subsequently, in the appeal proceedings, the court brought a nuance to this: even when there is live music or when the DJ is spinning, the emphasis is still on the provision of drinks, but when performances must be paid for, the zoning plan is violated. This is the case every other week on Wednesday nights, leading the court to rule that the college does have to take enforcement action on this day.
The emphasis does not shift
However, the Division rules otherwise. According to the Division, the frequency of the performances in the café, namely two or three times a week, does not mean that the emphasis shifts from serving (alcoholic) beverages to playing music. After all, the performances are a secondary activity in relation to the main objective, providing drinks. The Division takes into account that, according to the café, the performances are mainly meant to create atmosphere and listening to music is therefore not the main purpose. Another factor is that the café is clearly distinguishable from a number of discotheques in the city center, which do fall under a different category. However, the number of visitors is not a factor, as the residents had argued.
The fact that money is charged for some live performances is also apparently irrelevant to the Division. The residents' appeal is therefore declared unfounded.
A café remains a café, even with live music
A strict distinction between a catering establishment for drinking and a catering establishment for listening to music and dancing cannot always be made in practice. In any case, this ruling makes it clear that more is allowed in a bar than just the serving of liquor, as long as these additional activities do not take over. Where exactly the line is drawn does not follow from the ruling, but a pub where live and DJ performances are held a few times a week is still a pub.
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