Will the introduction of an Agent of Change principle in planning succeed in protecting live music venues? The operation of other regimes in relation to licensing and statutory nuisance means this is far from certain, writes Michael Greig.
The issue of incompatible neighbouring land interests has come under increasing scrutiny as a result of the difficulties faced by night clubs and music venues where new housing development has been located close by. The entertainment industry has faced numerous difficulties where the occupiers of new housing development have complained about noise from existing venues. This has resulted in restrictions in opening hours, requirements on operators to install noise abatement measures at significant expense and even closure of premises.
In order to assist in addressing the pressures between competing land uses, the concept of the Agent of Change has emerged. Under the Agent of Change principle, the responsibility for ensuring that that the occupants of a new noise sensitive development will not be adversely affected by noise from an existing noisy use is placed on the promoter of the new development. The intention is that issues of potential noise conflict are considered and resolved by the housing developer at the planning application stage.
At a political level, the Agent of Change principle is now being promoted by the Westminster Government by the devolved administrations in Wales and Scotland, as well as the Mayor of London. The introduction of the principle into the development control system has been warmly welcomed by the entertainment industry. Expectations appear high that this measure will assist in relieving the pressures that live music venues face from noise complaints. For local authorities, however, the changes which are proposed to the planning system to incorporate the Agent of Change principle are only one part of a regulatory jigsaw which places competing demands on them.
One of the other main regulatory regimes operated by local authorities which impacts on compatibility between neighbouring land uses is licensing. Night clubs and live music venues will usually be licensed to serve alcohol. Prevention of public nuisance through noise (including noise from patrons arriving and leaving) will be one of the factors considered by a licensing authority in deciding whether to grant a license. Where new housing is located close to existing licensed premises the potential for complaint increases, together with the possibility of the licensing authority taking action against the licensed premises.
The House of Lords Select Committee on the Licensing Act 2003 recommended that the full Agent of Change principle should be adopted within both planning and licensing guidance. The Government indicated in its response that any statutory licensing guidance will reflect changes made to the National Planning Policy Framework on Agent of Change. The intention in England therefore seems to be to have a consistent approach to the treatment of noise within the planning and licensing systems. This approach does not necessarily appear to be reflected in the rest of the UK. On 16 February, the Scottish Government announced their intention to incorporate the Agent of Change principle into the National Planning Framework and Scottish Planning Policy. However, the explanatory letter from the Chief Planner is clear that this policy announcement does not affect consideration of licensing issues. Similarly, the Welsh Government's adoption of the Agent of Change principle only appears to be in relation to the development control regime, not licensing. Without a consistent approach to noise impact between the planning and licensing regimes, licensed premises may still face difficulties in operation where new residential development is constructed.
A further significant issue is the statutory nuisance regime. Local authorities have a duty under section 79(1) of the Environmental Protection Act 1990 to investigate complaints of nuisance. If a local authority is satisfied that a statutory nuisance exists then they are under a duty to serve an abatement notice to remedy that nuisance. The definition of statutory nuisance includes "noise emitted from premises so as to be prejudicial to health or a nuisance."
Statutory nuisance presents a real difficulty for noise-generating development such as a live music venue. Where a new noise sensitive development (like housing) is constructed then noise from the existing use can lead to complaints from new residents and the potential for a statutory nuisance action. Even if noise mitigation measures are included within the new development, the existing premises may be faced with a statutory nuisance action where these prove to be ineffective.
Recent developments in case law appear to show that the courts are beginning to recognise the potential unfairness of an existing operator being held liable where a nuisance comes to be created through a change of use on neighbouring land. In the case of Coventry & Others v Lawrence and another  UKSC 13, the Supreme Court recognised that a defence to a claim of nuisance might exist where there is a pre-existing lawful activity and the person complaining about an alleged nuisance has built on, or changed to a more sensitive use of, their land which results in a nuisance which did not previously exist. The Supreme Court did not make a definitive ruling on this point and the potential defence was indicated to be subject to a series of criteria being fulfilled. Nevertheless, the English courts appear to moving towards a position which is conceptually similar to what is envisaged by the by the Agent of Change concept. However, the law is still uncertain and the risk of statutory nuisance still exists. In Scotland the position is perhaps even less clear. In the case of Chalmers v Diageo Scotland Limited  CSOH 36, the Court of Session left open the question of whether the potential defence referred to by the Supreme Court in the Coventry case existed in Scotland.
As well as the licensing and statutory nuisances regimes, local authorities will also have to consider enforcement of planning conditions imposed in relation to noise mitigation. An existing music venue will almost certainly have conditions attached to it restricting noise generation. In some cases, this will require noise from the venue to be inaudible in the nearest noise sensitive development. If a new noise sensitive property is subsequently constructed then this potentially increases the risk of an existing development being in breach of the conditions of their consent. Whilst a planning authority is not obliged to take enforcement action against a breach of planning control, a decision whether to do so is an exercise of discretionary power and open to challenge on administrative law grounds.
To what extent have the various UK legislatures who have indicated an intention to apply the Agent of Change principle taken account of the various regulatory regimes which local authorities require to apply? In England, the White Paper, Fixing Our Broken Housing Market, dated February 2017, proposed and consulted on various changes to the NPPF, including augmenting its content relating to the 'agent of change' principle. An announcement on 30 January 2018 confirmed that the NPPF is currently being revised and the intention is that a draft revised NPPF will be published before Easter. The focus has been on the Agent of Change principle being applied in the consideration of planning applications. However, the Government has also stated in response to the House of Lords Select Committee on the Licensing Act 2003 that statutory licensing guidance would be updated to reflect changes to the NPPF.
A private members bill to introduce the Agent of Change principle on a statutory basis was also being promoted through the House of Commons. However, it is understood that this will not proceed further in light of the Government indicating that a consultation paper will be issued in March setting out proposals to be incorporated within existing planning legislation (hopefully by the end of the year). This route has been taken in the hope that it will push proposals through quicker than a new Act.
The Welsh Government, for its part, wrote to all planning authorities in May 2017 indicating its intention to incorporate clear and explicit reference to the Agent of Change principle in Planning Policy Wales and advising that planning authorities should begin to apply the principle to the decision-making process with immediate effect. There was no reference to the Agent of Change principle being applied anywhere other than in development control.
In Scotland, the Chief Planner issued a letter to Heads of Planning on 16 February 2018 confirming that the Scottish Government intends to include explicit policy guidance on the Agent of Change principle in the next National Planning Framework and Scottish Planning Policy. Planning authorities are asked to ensure, meantime, that the issues around the potential impact of noise from live music venues are always appropriately assessed and addressed when considering proposals either by the venues themselves or for development in their vicinity. However, the Chief Planner's letter expressly states that this advice does not affect the operation of noise nuisance or licensing controls. Evidence sessions on the new Planning (Scotland) Bill will include hearing evidence on Agent of Change and are due to commence shortly.
The focus of UK legislatures on the development control system as the primary mechanism for introducing the Agent of Change principle carries limitations. Whilst it can mitigate risk from existing business, it cannot eliminate risk entirely. It is not also not clear how a revised development control system will operate in practice through the incorporation of the Agent of Change principle. What does a planning authority do if the noise impact turns out to be greater than predicted? Who would be responsible for the cost of additional mitigation in circumstances where the original housing developer is no longer present and indeed may no longer exist?
Statutory nuisance presents a particular challenge for local authorities. They are obliged to investigate complaints. If they are satisfied that a statutory nuisance exists then they are obliged to take action. None of the UK legislatures currently appear to be contemplating changes to statutory nuisance so as to incorporate the Agent of Change principle. It may of course be that further legislative reforms are proposed. However, without a holistic approach to the regulation of noise though licensing and statutory nuisance, it is difficult to see how the planning system - by itself - can meet the expectations which appear to have been placed on it to protect live entertainment venues.