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Music venues and their neighbours: Government’s plans to strike the right balance

Introduction

The Government has today 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 proposal

The Secretary of State's announcement confirms that the revised National Planning Policy Framework (NPPF) – due to be published for consultation in the spring - will include 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. This would mean that an apartment block to be built near an established live music venue would 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, 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.

Some background

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 [1990] 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 [2015] EWHC 2475 (Admin).

In Forster v SSCLG [2016] 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 [2014] 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).

One extreme solution to this issue was provided by Bruce Springsteen when he played his first gig at the Emirates. On being told by an environmental health officer that he must stop playing at a certain time or he would be fined for a breach of condition the Boss announced to the audience that, if so, he would happily pay the fine and play on. Unsurprisingly, it was a case of "No Surrender"! Of course, live music and other venues don't have quite the deep pockets enjoyed by the Boss, and instead of fines, they face curtailed hours and ultimately revocation of their licences...

Conclusion

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 Secretary of State has 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.

Martin Edwards and Josef Cannon.

Cornerstone Barristers Licensing and Planning teams can help organisations and businesses to navigate the law and regulations. Please contact clerks@cornerstonebarristers.com for more information.