Learn from club’s challenge

Following on from recent our article in the PMA regarding the difficulties faced by music venues in the light of noise complaints from the occupants of newly built residential premises there has been an important decision recently which provides a degree of comfort for operators who object at the planning stage, as recommended in our article.

Koko nightclub and live music venue in Camden has successfully challenged the Council’s decision to grant planning permission for conversion of the adjoining Hope and Anchor pub into flats.

On 8 September 2015 High Court Judge Mr Justice Stewart ruled that insufficient attention had been paid by the decision makers to the setting of nearby listed buildings and the conservation area and that noise impact had not been adequately assessed. There were five grounds to the challenge:

• Koko occupies a Grade II listed building, but the planning case officer failed to assess the significance of this heritage asset and failed to assess potential harm to it and other heritage assets in the vicinity from the proposed development. The Council’s requirement for a heritage impact assessment was not met.
• In relation to potential noise impact from established late night leisure operations, the case officer considered that with relevant mitigation measures, the proposed residential use was acceptable and would not result in increased complaints about noise which could harm the continued operation of the nearby late night operations. This was despite concerns raised by the Council’s Environmental Health Officer, who recommended refusal, and despite measured noise levels that would be clearly noticeable, even after mitigation works, and would prevent rest and sleep at night. Mr Justice Stewart criticised the planning officer’s report to Committee on the proposal as its overall effect misled members about material noise considerations.
• Planning officers redrafted conditions relating to noise after the Committee resolution to grant permission, but did not refer the reworded conditions back to Committee for approval.
• The conditions relating to noise did not secure the mitigation which Committee members were advised was necessary to enable the development to proceed. This was considered to be an irrational and unlawful approach to imposition of conditions.
• Finally, the ruling accepted the Council’s submission that there had been no breach of a procedural requirement in relation to the developer’s failure to submit a heritage impact assessment.

The grant of planning permission was quashed and the Council will now have to reconsider the proposal, subject to addressing the shortcomings identified by Mr Justice Stewart.

This case highlights the recurring issue of proposed residential conversions in the vicinity of established and successful late night leisure operations and the associated noise impact considerations. The recent high profile case relating to Ministry of Sound in Southwark resulted in the residential developer being required to enter into a legal agreement to prevent any changes to noise attenuation works by future occupiers of the flats. In addition, a Deed of Easement was granted to Ministry of Sound to allow noise from the venue to pass over the new residential development.

These are not considered to be straight forward solutions that could be applied in all cases where new residential development is proposed adjacent to established noise generating uses.

The London Mayor’s Ambient Noise Strategy “Sounder City” stresses that meeting development needs and urban vitality can be achieved without “cheek by jowl” mixing of conflicting land uses. The assessment of new residential development must include comprehensive considerations of the quality of the local environment to accommodate this use and the potential impact of existing land uses on proposed development, as well as the impact of proposed development on existing land uses, to ensure compatibility.

We have spoken before about the campaigns for the UK to adopt the ‘Agent of Change’ principle, which basically says that the person or business responsible for the change is responsible for managing the impact of the change. In other words, whichever building is constructed later, be it the one generating the noise or the residential one, that is the building which must provide appropriate soundproofing. Are we seeing a shift in law and policy in that direction?

And what applies to out and out music venues can be similarly applied to longstanding pubs which provide a bit of music on a weekend. It is interesting to note the growing awareness in the trade that developers’ proposals to build (often much needed) residential premises near licensed premises can constitute a future threat to their business through noise complaints and that this threat can be challenged at the planning stage. At the same time there are signs both in the courts, in national campaigns and indeed in Westminster that the voices of those who provide music at established venues are at last being heard. However, there is still a long way to go.

With thanks to Jonathan Phillips, Group Planning Partner at Bidwells Property and Planning Consultancy.