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10/07/2020

Appeal: Deed of easement at music venue deemed unnecessary

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Live Music / Shutterstock: 214402048

A condition requiring future occupants of proposed flats near a Milton Keynes music venue to enter a legal agreement accepting a certain level of noise has been deleted by an inspector, who ruled that revised plans meant the venue was not at risk.

LOCATIONMilton Keynes
AUTHORITYMilton Keynes Council
INSPECTORPhilip Major
PROCEDUREWritten submissions
DECISIONAllowed
REFERENCEAPP/Y0435/W/20/3246822

The appeal concerned plans by Abbey Developments to build housing on land adjacent to The Stables, a popular music venue in Milton Keynes. The developer's initial application sought outline permission to build up to 134 homes across the entire site. The operators of the venue lobbied the council to grant permission only if subject to a condition requiring a deed of easement to be agreed. 

As reported by The Planner, a deed of easement is a legal mechanism that allows residents near venues to agree to a certain level of noise, protecting the venue from future noise complaints, in line with the agent of change principle. It was pioneered in 2014, when an agreement was brokered between the South London nightclub Ministry of Sound and a nearby 331-home scheme. 

In granting outline permission, the council refused calls to include a requirement for a deed of easement, deciding that the relationship between the site and the venue could be addressed at reserved matters stage. When the developer sought full permission for the 134-home scheme, this time the council did require a deed of easement. 

The appellant then submitted a second reserved matters application, this time seeking permission for only 79 homes, which it planned to build on the portion of the site farthest away from The Stables. However, this application was again approved subject to a requirement for a deed of easement to be agreed, a decision taken by the council against the advice of its planning officers. The appellant then sought to have the condition deleted, arguing that a deed of easement was not necessary for the smaller scheme.

Inspector Philip Major commented that the deed was likely to “significantly affect” the developer’s prospects of being able to sell homes built on the site. As such, he ruled, a deed of this type should have been “fundamental to the original grant of outline permission”, so that the developer would be aware “at the outset” of the constraints it would need to address.

To allow the addition of the requirement for the deed at reserved matters stage would “put the power to achieve an implementable planning permission in the gift of a third party” (The Stables), which would ”effectively nullify” the outline permission already granted.

In terms of impact on the venue, Major noted that there would be a “significant gap" of more than 200 metres between the development and the venue under the downscaled scheme. The proposed homes would be "so far distant" from the venue that any potential noise nuisance would be small, he ruled.

Although he acknowledged and applauded local people for their “genuinely held concerns” over the future of their “valued community facility”, Major ruled that there was “simply no basis to conclude, as feared by many local residents, that the lack of a deed would place the future operation of The Stables in jeopardy”. Concluding that the condition was unreasonable, he allowed the appeal.

Major also considered a separate application for costs against the council, which he described as “one of the most straightforward I have seen”. Although the council had a “legitimate aim” in seeking to protect a community facility, he ruled, it had imposed a condition which was “wholly unreasonable and unnecessary”, despite “the most persuasive legal opinions clearly indicating” that it should have been imposed at outline stage. 

Concluding that the council’s rebuttal “failed to provide any respectable basis” for its approach, he ordered a full award of costs in favour of the appellant.

The inspector’s report – case reference 3246822 – can be read here.

Image credit | Shutterstock

 

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