By Martin Edwards
In January, the Government announced plans to ensure that housing developers building new homes near music venues should be responsible for addressing noise issues, in a move to protect both music venues and their neighbours.
With late-night venues and community sports clubs often being forced to make high-cost changes (or even face closure) when new residents move into the area, new guidance is long overdue. Without it, many venues could be forced to close, sucking the life out of town and city centres.
The Secretary of State's announcement in January has resulted in a proposed revision to the National Planning Policy Framework (NPPF). Following a determined and tenacious campaign by The Music Venue Trust, the consultation draft published on 5 March 2018 includes a specific mention of the 'Agent for Change' principle, which states that the person or business responsible for the change is responsible for managing the impact of the change. Paragraph 180 of the revised draft states 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). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. These would, of course, still be subject to other controls such as those found in Part III of the Environmental Protection Act 1990, but the new provision is designed to ensure that the new development should be required to secure suitable mitigation before the development is completed. This would mean, for example, that an apartment block to be built near an established live music venue might have to pay for soundproofing, while a live music venue opening in a residential area would be responsible for the costs.
If it makes the final version of the NPPF (and there is no reason to suppose that it will not given that this proposal was broadly welcomed when it was announced), it will mean that developers will be responsible for identifying and solving any sound problems if granted permission to build, and avoid music venues, community and sports clubs and even churches running into expensive issues as a result of complaints from new neighbours.
The announcement follows hot on the heels of the draft London Plan, in which the Agent of Change principle is given specific mention, alongside draft policies to protect noise-generating cultural venues such as theatres, concert halls, pubs and live music venues in the capital.
Reconciling the sensitivities of competing uses has always been at the heart of the planning system. For those old enough to remember, the High Court was faced with similar issues in relation to a residential development proposed in Exeter in an established industrial area – see R v Exeter City Council ex parte JL Thomas & Co Limited  3 WLR 100. More recently, the issue of conflict between new residential development and an adjacent long-established music venue formed the backdrop to the decision in Obar Camden Limited v Camden LBC and Vidacraft  EWHC 2475 (Admin).
In Forster v SSCLG  EWCA Civ 609, the proprietor of a long-established live music venue, the George Tavern in Stepney had unsuccessfully objected to a planning application for a mixed use building including six flats adjacent to the George, on the basis of likely future complaints to the licensing authority emanating from the residents of the flats. She won her appeal, ultimately, but not on the noise issue. It is clear that the issue is not going to go away, as our city and town centres continue to develop as genuinely mixed-use areas, and high land values meaning that residential accommodation is likely to be proposed almost everywhere.
The licensing system as presently arranged does not afford much protection to the licensee faced with complaints from residents of newly-erected flats in the vicinity of a noise-generating premises, as 'public nuisance' under the Licensing Act 2003 is broadly construed and incorporates no defence of 'coming to a nuisance'. Indeed, Coventry v Lawrence  UKSC 13 re-affirmed the unavailability of the defence that a complainant about noise 'came to the nuisance' (while confirming that if the noise was part of the character of the locality, a defendant might be able to rely on it as justifying the nuisance).
There is a further pressing need for arrangements to be made to protect existing venues. According to a recent press report in The Guardian, the number of illegal raves in London, often held in warehouses or abandoned buildings, has nearly doubled since 2016. Plans for 133 unlicensed raves in 2017 were identified by the Metropolitan Police up from 70 the previous year. This has been accompanied by a rapid decline in traditional venues with more than half of London clubs shutting down between 2005 and 2015, according to the Association of Licensed Multiple Retailers. In the last two years, there has been a drop of 3% in the number of licensed premises across the UK. One of the main reasons cited for this dramatic fall is the pressure from gentrification which makes it tougher for nightclubs to open or to continue existing. Those that continue to trade face rent increases, which will, in turn, push up admission prices.
Ultimately, this is a welcome proposal and will provide much-needed clarity. Incidentally, the extent of this problem was recently highlighted by DJ Annie Mac in a documentary on BBC Three.
The then Secretary of State emphasised the vital role that music venues play in our communities, bringing people together and contributing to the local economy and supporting the country's grassroots music culture. Ultimately, as Mr Javid's statement observed, it is a simple matter of fairness. It is unfair that the burden is on long-standing noise-generating venues to solve noise issues when property developers choose to build new homes nearby.