We’ve surely got to find better solutions to the conflicts arising between residents (in both new and existing homes) and noise generating or noise sensitive uses. Otherwise we will kill those activities that make cities what they are and an important element what attracts people to live in them in the first place: nightclubs; cinemas; music and sports venues; recording studios.
Noise arises in the planning system in various ways:
– Effect of proposals on existing noise-sensitive uses
– Effect of proposals that will bring sensitive receptors near to noisy operations whose activities may over time be curtailed
– Effect of proposals for noisy activities on sensitive receptors
Effect of proposals on existing noise-sensitive uses
It has been a bad week or so for noise-sensitive uses:
R (Grand Central Sound Studios Limited) v Westminster City Council (Patterson J, 20 October 2016). The claimant operates eight recording studios from a building in central London, a use sensitive to noise and vibration. It unsuccessfully challenged, alleging (basically) irrationality and inconsistency of approach, Westminster City Council’s decision to grant planning permission for the residential conversion of an adjacent office building.
It was always going to be an uphill struggle once planning permission had been granted. Contrast with the well-publicised battle that has been fought by Air Studios in Hampstead against a nearby super-basement proposal.
The Secretary of State for Transport has approved proposals for the Trafford Centre extension to the Manchester Metrolink in the face of reported objections from the studios where Coronation Street is filmed. Paragraph 11 of the 13 October 2016 decision letter:
“The Secretary of State notes that the main effects of the … proposals due to noise and vibration would be on the production of “Coronation Street” at the ITV Trafford Wharf Studios due to construction noise, wheel squeal on the tight bend near the studios, and groundborne noise as a result of vibration from the trams. He accepts that construction noise should be able to be controlled through the Code of Construction Practice (“CoCP”); that occurrences of wheel squeal could be reduced by changing the wheel profile of trams, by control of the track gauge at the bend and by the use of a vehicle-mounted friction modification system; and that the effects of groundborne noise could, if necessary, be reduced by use of a “floating track slab” design in the vicinity of the studios. The Secretary of State accordingly agrees with the Inspector that these matters would be adequately addressed through the imposition and enforcement of planning conditions … which should ensure that measures are taken to avoid exceedances of the “just acceptable” noise levels specified by ITV”
Effect of proposals that will bring sensitive receptors (people) near to noisy operations whose activities may over time be curtailed
Such as nightclubs…
Obar Camden Limited v London Borough of Camden (Stewart J, 8 September 2015) was the successful challenge by the Camden nightclub Koko of a planning permission granted by Camden Council for a mixed use redevelopment of the adjoining public house. Koko was concerned that the presence of residents next door would jeopardise the future of the venue due to the risk of noise complaints. In contrast to the Grand Central Sound Studios case, the court accepted that the decision was irrational and also that the noise condition imposed was legally flawed:
“The tenor of the [officer’s report] is that so long as the noise consultant’s mitigation measures were implemented, this would require further details of those particular mitigation measures, then the proposed residential use would not “result in increase noise and complaints which may result in harm to the future operation of the neighbouring businesses.” This was not accurate. Therefore the overall effect of the report in relation to noise significantly misled the Committee about material matters which were left uncorrected at the meeting before the relevant decision was taken”.
The claimant’s noise consultant “Mr Vivian’s report in effect says that the conditions cannot possibly fulfil the aims they seek to achieve. There is no evidence from [the defendant]. The court would not expect a detailed technical response and would not become involved in such a merits based argument. However there is nothing apart from the fact that the conditions were drafted by [the defendant’s] officers, to refute any of the points made by Mr Vivian. A brief witness statement setting out in summary form why issue was taken with Mr Vivian’s conclusions may well have been sufficient. Nevertheless the court is in effect left with a detailed and systematic witness statement alleging irrationality and nothing of real substance to begin to counteract it. Therefore in my judgment [the claimant] succeeds on this ground also.”
The Eileen House development in south London, near to the Ministry of Sound nightclub, was the previous cause celebre, called in by the previous Mayor of London and approved in 2014 after lengthy negotiations leading to:
– reportedly, a novel form of deed of easement being entered into by the owners of Eileen House allowing noise from the nightclub to pass over the Eileen House developments so that incoming residents would not be able to object to it
– condition 19 attached to the 7 January 2014 planning permission requiring flats to be adequately insulated against noise from the nightclub
– paragraphs 11 to 13 of Schedule 2 of the 6 January 2014 section 106 agreement requiring noise mitigation measures to be kept in place and for incoming residents to be told about the noise from the nightclub.
“Agent of Change”
The Eileen House approach could be seen as a domestic example of the Australian “agent of change” principle – that where development takes place near to noisy activities, it is for the developer to manage the impact of the change (see Music Venue Trust for more information, or this detailed paper from a 2014 noise conference held in Melbourne).
Sadiq Khan has embraced the concept, reportedly intending to introduce it into policy. His statement was made in the context of the problems faced by the Curzon cinema in Mayfair, being faced with complaints from incoming residents to newly converted flats in its building. Its problems arise from its tenancy position, unable to control the nature of its neighbours, and the difficulties of retrofitting soundproofing of its activities into a listed building.
Whilst a Labour attempt to introduce the concept into the Housing and Planning Bill failed, the Government did of course from 6 April 2016 introduce a further prior approval requirement into the office to residential permitted development right: a requirement to provide details as to the “impacts of noise from commercial premises on the intended occupiers of the development”.
Effect of proposals for noisy activities on sensitive receptors
More traditionally, the introduction of noisy activities into residential areas has always led to disputes. We have recently seen a surge in popularity in outdoor music events, leading to a surge in popularity in related litigation, which often turns on collateral challenges to the lawfulness of temporarily closing off the relevant open area for a commercial event.
The recent challenge to north London’s Wireless Festival, Friends of Finsbury Park v London Borough of Haringey (Supperstone J, 22 June 2016) , was a case in point, along with Save Battersea Park’s recent litigation in relation to the holding of Formula E racing in Battersea Park and ongoing disputes in relation to events on Clapham Common.
and beyond planning…
As with the Curzon cinema case, noise issues are not confined to the planning system – there is often an overlap with licensing and with private law, including landlord and tenant matters and the law of nuisance. The law of nuisance is beyond this blog’s pay grade but the key legal authority is undoubtedly Coventry v Lawrence (Supreme Court, 22 July 2015), a case about noise from a motor sports track in Suffolk. The case considers, amongst other things, the relevance of how long the noise complained of has been generated (as to whether rights by prescription can be obtained after 20 years), the relevance of whether the activities have the benefit of planning permission, the relevance of whether the complainant has come new to the situation and the availability of injunctions. Worth reading in a quiet moment….
The Government’s planning guidance at present as to the treatment of noise in the planning system is useful eg paragraphs 123, 109 and 111 of the NPPF., the noise section in the Government’s Planning Practice Guidance and its earlier Noise Policy Statement for England. However, whether at national or at local/city level, isn’t it time now for more a more explicit articulation of the agent of change principle – with a view to maintaining city living as a sound proposition?
Simon Ricketts 22.10.16
Personal views, et cetera