There can often be a conflict between the needs of a music venue operator and those of its neighbours. Tim Taylor, Nicola Purcell and Mike Lotinga think they may have found the answer.
It is a sad truth that music venues are closing across the UK on a regular basis. As mostly marginal businesses, many have found themselves unable to defend noise complaints from owners of new residential flats nearby, resulting in them being forced out of businesses that may have operated for decades. This was the problem recently faced by the George Tavern – a Grade II listed public house and music venue in east London – when a new residential development was proposed on an adjacent site. So how do you get around a problem like this?
The problem for venues such as the George is that despite having operated their businesses for many years, the fact that “we were here first” is not a legal basis for defending a private nuisance claim. The newly-emerged agent of change planning policy encourages developers to put in place measures to avoid “significant adverse effects” being caused to existing nearby properties. However, this policy alone does not provide the legal protection that these venues need to protect themselves against a claim for nuisance, as these often occur at lower levels than might be considered to constitute a significant effect in planning. (That’s because music venue noise typically occurs in the sensitive evening and night periods.)
What is the legal position?
There are two types of legal nuisance – common law and statutory. In respect of a statutory nuisance, there are powers available to local authorities for enforcing breaches of the statutory provisions, an obligation to investigate complaints and a duty to serve abatement notices where it is satisfied that a nuisance exists. The relevant statutory nuisances are those prescribed in the Environmental Protection Act 1990 (the 1990 Act) and the Noise Act 1996 (the 1996 Act).
Common law nuisance can constitute both a private and public nuisance, but is often caused by someone doing something on their own land which they are entitled to do, but which becomes a nuisance when it adversely affects their neighbour’s enjoyment of their land. In practice, common law actions in public nuisance are rare because the statutory regime offers a quicker alternative.
Deeds of easements of noise
In the absence of a fundamental change in planning policy, an interim answer lies in the developing area of deeds of easements of noise. The effect of the deed is to prevent there being an actionable nuisance arising from the existing levels of noise emanating from the venue. The only circumstances where there could be such an actionable private nuisance would be if the levels of noise increase above those stipulated in the deed.
The way it works is simple. The deed is entered into between the developer, the venue and (if appropriate) the council. A right is granted by the owner of the development site to the venue to allow noise from the venue to pass over the neighbouring development site, up to the levels at which it has always operated. The future owners of the new dwellings will then become bound by the deed when they purchase a neighbouring property. The deed is registered against the title and is enforceable as a property right.
If a resident decides to bring a claim, it would fail (assuming noise levels prescribed in the deed had not been exceeded), as the resident has accepted on purchase that it would be bound by the right of the venue to emit noise up to the permitted levels. This is the main advantage of the deed as it recognises the position before the new development came along, the importance of ensuring both uses continue, and provides a legal mechanism so both can coexist.
In respect of statutory nuisance, this means an actionable nuisance in the sense that it is understood at common law. Accordingly, the reason why there is no actionable private nuisance is also the reason why there cannot be a successful prosecution under the 1990 Act on the ground that noise emitted is a nuisance.
With regard to the 1996 Act, the noise levels experienced at the dwelling must be measured with the doors and windows closed. Accordingly, as long as the permitted levels are being met with all openings shut, there is no possibility of a successful prosecution here either.
Despite the shift in planning policy towards an agent of change-informed approach, the current framework fails to provide adequate protection within the planning system, because it sets the threshold for requiring mitigation at a level that may still allow disturbance to occur.
The deed of easement does not eliminate the chance of someone complaining about noise from a neighbouring venue; however, any complaint, whether in common or statutory nuisance, would fail, and public nuisance would be rarely applicable in this context. It is for this reason that unless and until national noise policies are significantly strengthened, the deed of easement should be adopted as a planning requirement by all local planning authorities when asked to consider new residential developments adjoining existing noise-generating venues. In this way, there is a legal mechanism to ensure that urban areas get the housing they require, while retaining the night-time business that makes those same areas thrive.
A benefit for all
The George fought a hard campaign, spurred on by prominent support from within the music and creative industries. Working closely with the local planning authority, The George ensured that planning permission would only be granted if a deed of easement was in place. The George will now have the benefit of a deed of easement of noise, and the developer will get its planning permission for new flats. That’s something that can be repeated across the country, for the benefit of all.
Tim Taylor is a partner and Nicola Purcell is a managing associate at Foot Anstey LLP and Mike Lotinga is an associate at WSP
