The concept of competing land uses between neighbouring developments is not a novel one. Recently, much focus has centred on the alarming number of nightclubs and music venues that have been forced to close due to noise complaints from occupants of new housing developments within their vicinity.
Organisations such as the Music Venue Trust and UK Music have been campaigning to prevent this decline. One emerging idea is to use the development control regime to solve the problem through the agent of change principle, which places responsibility on the promoter of a new noise-sensitive development to ensure occupants will not be adversely affected by noise from an existing noisy use. The focus to date has largely been on the development control regime through which planning applications for development are considered. However, this is not the only mechanism which regulates noise between neighbours.
Nuisance
Local authorities have a duty to investigate nuisance complaints under the Environmental Protection Act 1990 (EPA) and must decide whether such complaints are due to a statutory nuisance, including noise. If a local authority deems a statutory nuisance exists, or is likely to occur or recur, it must serve an abatement notice to remedy that nuisance. The EPA also permits any aggrieved person to make an application to the Magistrates Court (or the Sherriff Court in Scotland) against the person responsible for the nuisance in order to have that nuisance removed.
The difficulty for an existing noise-generating use is that, where planning permission is granted for a new noise-sensitive development, noise from the existing use can lead to complaints from new residents and the potential for a statutory nuisance action.
The courts have long held that it is no defence to an action of nuisance that the claimant had come to the nuisance. However, in Lawrence v Coventry (t/a RDC Promotions) [2014] UKSC 13; [2014] 1 EGLR 147, the Supreme Court recognised a claim for nuisance could fail where there is a pre-existing activity and the claimant develops their land to effectively create a new sensitivity, and thus a nuisance, which did not exist in the area before. The court did not make a conclusive ruling on this point and it is unclear how such a defence would operate practically.
Licensing
Music venues and nightclubs will often be licensed to sell alcohol. As part of the licensing regime, a licensing authority must be satisfied that the operation will not cause a public nuisance.
Introducing new residential property in close proximity to licensed premises increases the likelihood of complaint and the potential for enforcement action under licensing law, which can lead to restrictions on hours of operation or revocation of a licence.
As a result of the government’s response to the House of Lords Select Committee on the Licensing Act 2003, it seems that, in England, the intention is to make statutory licensing guidance consistent with changes made to the National Planning Policy Framework (NPPF) on agent of change. However, this approach is to be set out in guidance as opposed to legislation. Although licensing authorities must have regard to such guidance, they are not necessarily bound to follow it.
Existing planning permissions
Existing noise-generating development will generally have its own planning permission with conditions imposing limits on noise. Practice with noise conditions varies but some authorities impose conditions that require amplified noise to be inaudible within the nearest noise-sensitive property. If a new noise-sensitive property is subsequently constructed then this potentially increases the risk of an existing development being in breach of the conditions of their consent.
Introducing the agent of change principle
Although the NPPF and planning practice guidance advise that noise impacts from existing businesses should be considered when creating policies and determining applications, there is increasing pressure to incorporate the agent of change principle into the planning system throughout the UK. The Housing White Paper, dated February 2017, proposed that planning authorities should take account of existing businesses and other organisations when considering new development.
The draft revised NPPF, currently in consultation, goes further than the current version in its support of agent of change, advising that the applicant “should be required to secure suitable mitigation before the development has been completed”.
A private members’ bill introducing the agent of change principle on a statutory basis was being promoted through the House of Commons, and had its first reading earlier this year. However, it is understood that, instead of a second reading, a government consultation paper will be produced this year to set out proposals to be incorporated within existing planning legislation.
The agent of change principle is gaining momentum throughout the UK – the Welsh government wrote to all planning authorities in May 2017 advising that the principle should apply to the decision-making process with immediate effect. In Scotland, the chief planner issued a letter to heads of planning on 16 February 2018 confirming that the Scottish government intends to include explicit policy guidance on the agent of change principle in the next National Planning Framework and Scottish planning policy.
Comment
While agent of change has the potential to at least reduce the amount of closures of existing businesses due to noise and other complaints from occupiers of new developments, it must be recognised that the planning system will never be able to eliminate risk entirely. For example, even if a housing developer satisfies the local planning authority that development has been built entirely in accordance with imposed mitigation measures, there is no guarantee a future resident will not experience some form of residual nuisance and bring a nuisance claim. A holistic approach therefore needs to be taken to planning, licensing and nuisance.
Amy Truman is a senior associate, Pieter Claussen is an associate and Michael Greig is legal director at DLA Piper
