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Council planning board removes clause from s106 agreement restricting future occupants from bringing claims over noise after receiving advice move was unlawful

­­The Planning Board at the Royal Borough of Greenwich has removed a clause from a s106 agreement that was intended to restrict future occupants of a housing development from pursuing claims for nuisance or damages over noise, after receiving legal advice suggesting it was unlawful.

Notting Hill Genesis’ planning application to build a part 13, part 17 storey waterfront tower was approved by the Planning Board on 18 November.

Concerns over potential legal claims from future occupants of the development stemmed from the tower’s proximity to Brewery Wharf, a wharf used for aggregate handling which is still in regular use.

Night-time barge deliveries in the wharf, located 200m away, could potentially impact upon the amenity of residents of the proposed development, according to the Planning Board.

The Port of London Authority also raised concerns regarding the potential impact of the development on the activities at Brewery Wharf.

As a result it was initially recommended that a clause be included in the s106 agreement informing the prospective tenant, lessee or purchaser of the general nature and extent of activities at Brewery Wharf and the mechanisms to control the level of noise within the dwelling from Brewery Wharf such as keeping the windows closed and using the mechanical means of ventilation provided within the dwelling.

In addition, it was recommended that the clause should set out that the tenant, lessee or purchaser would not be entitled to make or pursue any claim for nuisance or damages caused by noise from Brewery Wharf at a level at or below the Baseline Noise Level.

The record of the Planning Board’s decision stated that legal advice received during the course of preparing the s106 agreement indicated that “the proposed clause to restrict future occupants from making or pursuing any claim for nuisance or damages would not be lawful and should not be included in the agreement.”

A set of modified conditions in relation to noise were imposed to replace the clause. These include maximum noise levels covering bedrooms, habitable rooms, balconies and public/private outdoor areas at the development.

To achieve these criteria and minimise the potential for conflict with Brewery Wharf a testing scheme will be implemented prior to the first occupation of each building.

The Planning Board also decided that the scheme for noise testing and modelling required should be implemented and the results submitted and approved in writing by the local planning authority (in consultation with the Port of London Authority).

Adam Carey

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