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03/10/2016

We must do more to protect the night-time economy

Words:
Nightclub revellers

The planning system has the tools to protect night time economies under threat from regeneration and permitted development in towns centres, argues Matt Lewin

A nightclub opens in a deprived part of the city. For several years it is the only place to go out in the neighbourhood and hosts largely a local crowd, because outsiders think the area is not safe.

After several years, a second nightclub opens, then another. Within a decade, the neighbourhood is transformed: middle class professionals have moved in, creating a demand for boutique shops and apartments; property prices have soared. Eventually the nightclub begins to look out of place: its punters are disturbing nearby residents; it occupies a prime location.

The freeholder applies for a change of use proposes that the nightclub use will go, in favour of a retail unit and a few flats. The nightclub laid the foundations for a thriving, creative night-time scene. In a pattern replicated across the UK, eventually property developers sought to join the party, leading to tension with existing businesses and residents.

What should the local planning authority do in considering this kind of application? Relatively few authorities have local plans which offer explicit support for nightclubs and the night-time economy. Yet nightclubs and other venues which comprise a local night-time economy do make a valuable contribution to the cultural and economic life of their neighbourhoods. Well-managed late night venues can improve public safety. They are significant landmarks for, and employers of, young people. They bring people together in a very direct, intimate way, quite unlike most other typical town centre uses.

For these reasons, I would argue, nightclubs and other late night venues ought to be protected by local plan policies concerning town centre uses, even where they are cast in fairly general terms.

In my client’s case above, an online petition objecting to the application attracted 2,000 signatures. Unsurprisingly, many of the comments sought to raise issues which were not obviously material planning considerations and were written off as such in the officer’s report.

“Nightclubs and other late night venues ought to be protected by local plan policies concerning town centre uses, even where they are cast in fairly general terms”

Nonetheless, I would argue that for controversial applications, or at least those which might impact more noticeably in the lives of local residents, responses such as these should be construed benevolently where possible. Authorities should bear in mind the numerous statements in the case law about the importance and materiality of public interest and public participation in the planning system (e.g. R (Carlton Conway) v Harrow LBC [2002] EWCA Civ 927).

A further point assumes particular importance where there is limited policy protection for the night-time economy. Where proposed development might lead to the loss of an existing use, the desirability of preserving that use is capable of being a material planning consideration, provided that there is a reasonable probability that the use will be preserved if permission if refused (see London Residuary Body v Lambeth LBC [1990] 1 WLR 744, 751).

More recently, the High Court has affirmed the principle that “promoting social objectives may be a material consideration in the planning context” and that planning control can legitimately be used to promote social objectives where it relates to physical land use (see R (Copeland) v Tower Hamlets LBC [2010] EWHC 1845 (Admin), [22]).

Of course, the courts have also recognised the principle that a landowner may do what she wants with her land, provided her use of it is acceptable in planning terms (see R (Mount Cook Land Ltd) v Westminster CC [2003] EWCA Civ 1346). Nonetheless, it remains the case that the concept of a “material consideration” in planning law is a remarkably elastic one.

With the recent closure of Fabric in London, the crisis faced by the night-time economy has been brought into sharp focus. Planning authorities can and should play their part in standing up for the night-time economy in our towns and cities.

Matt Lewin is a barrister at Cornerstone Barristers, specialising in planning and licensing law

Photo | Shutterstock

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