This blog examines the complexities of Agent of Change cases from our experience acting for developers and venues alike and, in particular, considers the concept and use of noise easements to resolve and manage noise issues when planning permission is granted for a new use that is more sensitive that the existing uses around it.

It has been widely reported that the high profile campaign to save the George Tavern in Stepney from the threat posed by a neighbouring residential development has succeeded. Certainly the London Borough of Tower Hamlet’s decision to grant planning permission for the residential development subject to various measures for the benefit of the neighbouring pub/music venue is an example of the ‘Agent of Change’ principle in action. A notable aspect was the reported use of a noise easement.

I have written about the Agent of Change principle previously1 but in summary it is the concept that the party introducing a new use should be responsible for managing its impact, including where the new use is more sensitive than existing uses around it. Under the principle developers introducing residential development near existing late night music venues should therefore provide suitable noise mitigation to ensure that the new residents are not adversely affected by the venue.

Whilst the explicit acknowledgement of the Agent of Change principle in planning policy is a growing trend, elements of the principle have always existed in planning policy and decision-making at all levels. The underlying issues, after all, go to the heart of what the planning system is about: The use of land.

In this sense Agent of Change cases are classic planning cases, fundamentally being about the compatibility of different uses and requiring different interests and policies to be balanced against each other.

By their very nature, residential use versus late night venue planning cases are contentious. Consequently they carry an increased judicial review risk. Last year, for example, we successfully defended the judicial review of a planning permission for a temporary show venue (for an immersive musical theatre dining experience associated with the Mamma Mia! show) near Waterloo, on behalf of the landowner, Coin Street Community Builders. Admittedly Hetherington v London Borough of Lambeth & others2 was a case where the proposed venue was the agent of change but the basic point is that the proposal was contentious enough for a local resident to judicially review what was only a temporary planning permission.

We return to this case later. However, the risk around Agent of Change cases is further increased where there are complex noise considerations, with different parties providing competing technical assessments around the existing and future noise environment. In such circumstances failure by the authority to secure the appropriate level of mitigation when granting planning permission for a noise sensitive use will not only lead to future problems but, more immediately, could provide grounds for judicial review.

This is exactly what happened in Obar Camden Limited v London Borough of Camden3, where, on behalf of the owners of the neighbouring Koko Club, we successfully judicially reviewed the Council’s decision to grant planning permission for the conversion of an adjacent public house into residential flats. On the basis of uncontested evidence from Obar’s noise consultant, the Court found that the noise-related conditions imposed on the permission were irrational4.

Of course, no planning condition can guarantee that a dispute will be avoided in the future. Again we have experienced this from the perspective of a client who was developing residential units above a well-known cinema in London. Our client’s planning permission was subject to an ‘Agent of Change’ condition that secured noise insulation between the cinema and residential units. After completing the works, our client attributed the ongoing noise issue to the cinema having changed the nature of its operation since the grant of planning permission. (It was apparently showing more blockbusters with all of the associated loud music, explosions and sound effects). The cinema’s position was that the relevant planning condition must have been breached and the Council threatened enforcement action accordingly.

Whilst the noise issue in that case was eventually resolved and enforcement action averted, it illustrates the practical limits of conditions and the fact that the difficult decisions for local planning authorities do not necessarily end with the grant of the permission; rather, once the new residents are in situ, the authority could still find itself in the middle of a noise dispute, where it has the unenviable task of distinguishing breaches of planning control from other possible factors.

Enter then, stage left, noise easements to great applause.

The first reported use of a noise easement was by the Ministry of Sound nightclub and the owners of Eileen House, as featured in the GLA’s London’s Grassroots Music Venues Rescue Plan. This explained that the noise easement “gives the Ministry of Sound the legal right to make noise at existing levels” so that future residents of the neighbouring development “‘buy into’ the club’s ongoing operations, rather than being able to object to it”.

As a concept, we can see the rationale and potential benefits of these deeds. Ultimately, whether a noise easement is appropriate will depend upon the facts and circumstances of each case. However, there are some obvious practical difficulties – not least that they require neighbours to reach agreement about something that they may fundamentally disagree on. These deeds also remain untested in the long-term.

Whilst we can see the “bigger picture” role for noise easements, from a “pure” planning perspective, it seems to us that some caution is required, especially for local authorities: As per the GLA’s explanation, noise easements are private property rights between specific landowners. They will only be enforceable as such. Moreover, it is well established that planning is concerned with land use from the point of view of the public interest, not the creation or protection of private interests between landowners. Local authorities must therefore be careful not to fall into legal error around this.

As an illustration of this latter point, the principal ground of challenge run by the claimant in the Hetherington judicial review was that Lambeth Council had failed to have regard to a restrictive covenant concerning the use of the site in our client’s 1984 transfer deed. The Court rejected that argument in accordance with established authority, indicating that the fact that a third party has a private right is not relevant to the planning decision.

As with anything of any complexity, there are no “magic bullets” to resolve the issues that arise in Agent of Change cases, especially as those issues will not necessarily end with the decision to grant planning permission.

Whilst noise easements have a potential role to play (as shown by the Ministry of Sound and the George Tavern), there will be natural limits to this: Firstly, the highly contentious nature of these cases reduces the prospect of these easements being agreed in the first place; and, secondly, even where they can be agreed, they are private property rights that would not usually be material considerations in the determination of planning applications.