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11/05/2018

Legal landscape: Don't stop the music

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Music venues to be protected / iStock-157169001

A little less conversation and a little more legislative action may be needed if the agent of change principle is to have any practical bite, argues Sarah Clover

Agent of change’ is a fashionable phrase, which seems to be more extensively used than it is understood. It does not denote one single concept, but describes a variety of strategies to control relationships between new development, and extant noise sources – typically music venues.

The agent of change principle already appears throughout planning policy and guidance, but does not have any statutory definition. It conveys the idea that the agent encroaching on a planning status quo, changing it to have impacts on existing noise sources, should take responsibility for mitigating it.

The principle achieved notoriety in January 2018, when music stars gave prominent support to an ‘Agent of Change Bill’; sponsored by John Spellar MP through the  ten-minute rule in Parliament. It seemed that an agent of change principle could become law.

The draft bill imposed duties upon decision-makers and developers to pay attention to any juxtaposition of new development and existing noisy venues, with a view to preventing trouble. The typical problem is that of residents moving in, only to realise that they are living near an unacceptable noise source.

At that point their options come mostly from the regulatory enforcement regimes. Too often this calls time on the music venue, which may be long-standing. This seems unfair, and it was this that prompted the Spellar bill and its celebrity support. The contents of the bill were by no means a novel idea, however.

"It seems that the agent of change principle will continue to be applied through policy rather than law, which inevitably restricts its power, and places it at the discretion of decision-makers who will often have competing policies to apply"

In 2013, the agent of change principle was reflected to some degree in the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 – in the provisions for the conversion of office buildings to residential units. The amendments gave power to the planners to consider the noise impacts of such conversions and apply any necessary conditions.

In November 2016, the Mayor of London announced that he would be introducing an ‘Agent of Change’ rule into the next London Plan. This is now reflected as Policy D12, which stipulates that “noise-generating cultural venues such as theatres, concert halls, pubs and live music venues should be protected”, and sets out how that might be achieved.

Versions of the agent of change principle were already apparent in the National Planning Policy Framework (NPPF) and the National Planning Practice Guidance (NPPG), since 2012. NPPF paragraph 123 already directed attention to the impacts of new development upon existing businesses. The NPPG provided further information on how to mitigate the adverse impacts of noise.

On 5 March 2018, a consultation was opened on a draft revised NPPF. In it, the agent of change principle makes another appearance at paragraph 180, which requires that: “planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs)”, and that such venues should not have “unreasonable restrictions” placed on them as a result of development permitted after they were established.

The challenges of defining “unreasonable” are obvious.

The status of the Spellar bill is now uncertain, and the consultation on the NPPF amendments has yet to conclude.

The new prominence of the principle is welcome, however, to encourage the prevention of  careless planning that brings incompatible noise sources and receptors together in relationships that are obviously unsustainable. It seems likely, however, that the terms of the draft NPPF will not be enough to curtail the problems that arise when residential development encroaches ever further into night-time economies. Planning authorities need to pay more attention to this significant issue in their own development plans.

Ultimately, Parliament may well find that legislating for this important principle is the most appropriate way forward after all.

Sarah Clover is a barrister with Kings Chambers in Birmingham

Photo | iStock

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