AGENTS OF CHANGE | AMY TRUMAN
Dealing with noisy neighbours Secretary of State Sajid Javid intends to issue a consultation paper in March setting out proposals regarding the â€˜Agent of changeâ€™ explains Amy Truman
Amy Truman is a senior associate with DLA Piper
The problem of incompatible neighbouring developments is prevalent nationally, and is particularly common in London. It is not a new issue, but recently focus has once again turned to the numbers of night clubs and music venues forced to close due to residential uses being permitted in close proximity whose occupants then complain about noise. The focus on increasing housing levels across the country, including in city centres, is putting more pressure on the problem of competing neighbouring land interests. Organisations such as Music Venue Trust and UK Music, are leading the campaign for the decline of music venues due to complaints from neighbouring, more sensitive, land uses. The current preferred solution is to use the concept of Agent of Change. This places the responsibility on the promotor of a new noise-sensitive development to ensure occupants will not be adversely affected by noise from a preexisting noisy use. The focus is on the development control regime through which planning applications for development are considered. This Agent of Change principle is being promoted in various ways, including by central government and the Mayor of London through the London Plan. However, the planning regime is not the only one which regulates noise between neighbours, and it is key to note the other regimes which govern the issue. Nuisance Pursuant to current legislation, local authorities are under a duty to investigate complaints of nuisance (pursuant to section 79(1) of the Environmental Protection Act 1990 ("EPA")). It is for the local authority to decide whether such complaints are due to statutory nuisance such as "noise emitted from premises so as to be prejudicial to health or a nuisance". If a local authority is satisfied that a statutory nuisance exists or is likely to occur or recur, then it is under a duty to serve an abatement notice to remedy that nuisance. The EPA also permits any aggrieved person to make an application to the Magistrates Court against the person responsible for the nuisance, in order to have the nuisance resolved. This creates a problem for existing noise-generating uses where planning permission is granted for a noise-sensitive development nearby. Noise from that existing use can lead to complaints from new residents and the potential for statutory nuisance action. The courts have held that the fact that a claimant has come to the nuisance, is no defence to an action. However, in the case Coventry & Others v Lawrence and another  UKSC 13, the Supreme Court recognised that a claim for nuisance could fail where there was a pre-existing activity and the claimant has developed their land in a way which creates a new sensitivity, and thus a nuisance. However, there was no conclusive ruling on this point and it is unclear how such a defence would operate effectively.
Licensing Most of the music and night club venues which are affected will be licensed to sell alcohol. In order to grant a licence, the licensing authority must be satisfied that the operation will comply with four objectives, one of which is that the operation will not cause a public nuisance. The introduction of new residential property in close proximity to the music or night club venue increases the likelihood of a complaint and potential for enforcement under licensing law. The House of Lords Select Committee on the Licensing Act 2003 recommended that statutory licensing guidance is made compatible with the changes being made to the National Planning Policy Framework to emphasise the Agent of Change principle. This approach will be set out in guidance rather than legislation: although licensing authorities must have regard to such guidance, they aren't necessarily bound to follow it. Existing planning permissions The noise generating use itself will have its own planning permission (unless established through use). If it is shown to be a noise-generating use it is likely to have conditions attached to it to impose limits on noise. Some local authorities may require amplified noise to be inaudible within the nearest noise sensitive property. If this is the case, the practical limits for the existing property can change due to development outside its control. Current planning policy guidance As we have noted, the Agent of Change is not an entirely new principle. Whilst there are a number of new initiatives coming forward, the National Planning Policy Framework ("NPPF") contains policy which advises that noise impacts from existing business should be considered when creating policies and determining applications. The draft NPPF (March 2018) which is currently being consulted upon goes further in support of the Agent of Change. It adds to the existing wording which advises that existing businesses wanting to develop in continuance of their business should not have unreasonable restric- >>>
Issue 105 Aprilâ€“June 2018
PLANNING IN LONDON 105 April 2018