Comment and Analysis Masthead

The Agent of Change principle

Nightclub 37598107 s 146x219What are the implications of the 'Agent of Change' principle? Gareth Hughes explains.

At long last the Government has recognised that there should be an agent of change principle built into planning and if accepted then this will be reflected in section 182 Guidance under the Licensing Act 2003 as indicated by the Home Office in November 2017 in its response to the findings of the House of Lords Select Committee on the Licensing Act 2003. This principle has been proposed for many years and it has taken a lengthy consultation process to get to this point.

The proposal will now be incorporated into the National Planning Policy Framework to which all planning authorities must have regard in making decisions on applications and in framing their own planning policy.

The effect of the proposal is that developers coming to a new site with planning permission to erect, for example, a residential development should build into any planning application a recognition that there are music venues such as dance halls, nightclubs and pubs nearby and mitigate within their own application the impact of noise from those activities. Local planning authorities will also be required to have regard to this principle in framing their own polices and to give guidance to developers on what steps may be taken to reduce the impact of entertainment venues on any new residential development.

In terms of the impact on licensing, the Government has also indicated in its response to the House of Lords Select Committee reviewing the Licensing Act 2003 that it will ensure that the Guidance made under section 182 of the Act will reflect any change to the NPPF. This means the licensing authorities and their officers will also be required to have regard to whether a residential development adjacent or close to an entertainment or live music venue has taken steps to mitigate the impact of such established premises on residents living in the development. If not, then this should reduce the force of any complaint from residents against such a venue particularly in circumstances where that venue is doing no more than it may have done over many years previously.

In licensing terms, the situation where this becomes most relevant is perhaps on a review of a premises licence brought by residents in a brand new development against a venue which has been in place for many years or decades. For example, a large dance club has been operating in an area for 20 to 30 years opposite an office block without any incidents of noise from the venue being raised in all of that time. The club already has in place reasonably good sound insulation as required perhaps by its own planning permission and premises licence. A developer takes over the office block and proposes to demolish it and build a residential development housing several hundred people in the same place in full knowledge that the music venue lies opposite.

The new principle will require the developer to ensure that, in its application for planning permission it builds in proposals demonstrating how it will construct the building in such a way that the possibility of sound ingress from the adjacent club is minimal or non-existent. The planning authority will have to be assured of such proposals and build conditions into the final permission which take such measures into account. The developer will then be under a duty to complete the building accordingly. Residents moving in to that building will also be informed of the measures the developer has taken in this regard. They will then have the choice to buy or not to buy.

Presume that there have been no changes whatsoever in the operation of the club since the construction of the residential building and now residents hear sound from the club and commence a review of the premises licence under the Licensing Act 2003. The agent of change principle, in my submission, now comes into play to state that such a review should be given short shrift in all the circumstances and, without any other intervening factors, should be dismissed.

A further startling example concerns the ringing of church bells. Some churches have recently been the subject of actions from local residents who have newly moved into a development next to the church. The establishment has been part of the local area for many hundreds of years and has been ringing its bells on religious days during that time. Newly arrived residents express annoyance and commence proceedings perhaps under the Environmental Protection Act 1990 with the assistance of local authority environmental health officers.

The reform is a significant step forward in the development of this area of dispute between newly arriving residents and long established clubs, pubs, churches and cathedrals and is to be welcomed. It is very clear and well established that entertainment venues moving into an area adjacent to residents have to take steps to ensure that the activities in the new building will not cause noise problems for those living nearby and that is as it should be. However, there is no reason why the reverse should not also be the case and new residential developers take similar steps to ensure that their own buildings are secure in the same way.

However, what is not clear from this proposal is whether individuals (not requiring planning permission) moving into an already long standing home adjacent to an entertainment venue of equally long standing should also be under a similar duty to ensure that their house is insulated against sound ingress before they start making complaints.  This reform appears to relate more to developers rather than those individuals and further clarification may come out in the second phase of consultation.

Overall though, a long overdue and sensible measure.

Gareth Hughes is a barrister at Keystone Law specialising in planning and licensing matters.

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