I support grassroots music venues. I’ve blogged a few times in the past about the agent of change principle. And I’ve just read today’s report by the House of Commons Culture, Media and Sport Committee on the steps it recommends to halt the worrying rate at which these venues are closing (two a week and the total number in the country declining last year from 960 to 835), which includes recommendations to strengthen the agent of change principle. Music Venue Trust has played a vital role in drawing attention to the issue.
As with many public policy issues (housing, the economy, climate change, inequality, health disparities), we in our planning bubble need to remember that when it comes to protecting the conditions for grassroots culture to flourish, whether for its own sake or to grow the next stadium acts, the operation of the planning system is only one part of the problem – but the planning system does need to put its shoulder to the wheel.
The report includes calls for:
A comprehensive review by the Government (by summer 2024!) to fully examine the long-term challenges to the live music ecosystem
A voluntary levy on large venues by September 2024 and “if a widespread voluntary levy is not in place by September 2024, or if its level does not stem the tide of closures, the Government should introduce a statutory scheme.”
Temporary VAT cut and simplification of processes for grant applications, as well as resolution of disputes within the industry on performing rights payments and the like.
Placing the “agent of change” principle, which has been in the National Planning Policy Framework since 2018, on a statutory basis.
Briefly on that last point, the agent of change principle forms paragraph 193 of the current NPPF:
“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”
Paragraphs 90 to 95 of the report consider how the policy is applying in practice. It was recognised that policy represented progress, however concern as to how local planning authorities interpret and apply it. The Committee supported calls for it to be given more teeth by way of being placed on a statutory footing “at the earliest opportunity”.
Everyone of course calls for legislation about everything. I hope that any subsequent Government review examines this specific aspect in more detail: to what extent is the policy not working and in what respects and in what ways would legislation assist without unintended consequences?
Those with long memories may recall that Labour tried to include such a provision into the Housing and Planning Bill back in 2016.
Just reflecting on what we gain from protecting and encouraging these venues (have you been to the relatively new, cosy but fabulous, Lafayette venue in Argent’s Kings Cross development?), it’s not just about nurturing artists – one great quote from the report, courtesy of a participant from Manchester: “Taylor Swift’s lighting director didn’t start out as Taylor Swift’s lighting director”.
These venues can sometimes even be the catalyst for the rebirth of a whole city – I recommend the excellent book Manchester Unspun – How A City Got High On Music by Andy Spinoza for a description of possibly the world’s most extreme version of this (and let’s not currently mention Co-op Live shall we?).
I’m not sure that the architects of the 1947 town and country planning system could have foreseen the extent to which it so frequently ends up being tested to its limits by the need to protect the specific, often legitimate, interests of neighbours and the extent to which the process has become weaponised in neighbour disputes.
To what extent can and should local planning authorities supplement adjoining owners’ private rights with policies and decision-making that protect those adjoining owners’ interests over matters such as the impact of noise and vibration on a particularly sensitive neighbour – and, if so, how do they make sure that they have the right engineering basis for their interventions? Particularly in London of course these issues arises again and again – see eg my 5 December 2016 blog post First World Problems: Basements and planning officers can get drawn into a neighbour versus neighbour quasi-mediation.
I was reminded by all this again by a case this week, Strongroom Limited v London Borough of Hackney (Deputy High Court Judge Tim Corner KC, 8 March 2023). I only recite the facts by way of illustration of the way these things escalate – the legal issues were settled on the day of the hearing.
The claimant operates a recording studio. The council granted planning permission for redevelopment of an adjoining property, with which the claimant shares a party wall. The claimant had objected to the planning application, submitting a report by consultant Jim Griffiths of the music acoustic consultancy, Vanguardia [pause here for quiet shout out to the excellent Jim] setting out his advice that “unless noise and vibration levels were strictly controlled during construction, the use of the Studios would be subject to harm, impossible to use and might be compelled to close as a result”. He set out the maximum noise and vibration levels that could be tolerated during the construction phase. The developer responded with their own commissioned report. The council in turn commissioned their own report and in consequence planning permission was granted with a detailed condition requiring submission of a “demolition and construction method statement covering all phases of the development to include details of noise control measures” with specific limits on noise and vibration levels set out in the condition.
Once the developer applied to discharge the condition the claimant argued strongly that the developer’s technical work was flawed and commenced proceedings for an injunction to stop construction works from being carried out. That resulted in a settlement agreement allowing, amongst other things, for on-site noise testing and disclosure of testing results. The claimant continued to take issue with the technical work and with some undisclosed testing which had been made available to the council. The council discharged the condition on the basis of the information submitted by the developer and the claimant challenged this by way of judicial review.
In the meantime, the, presumably despairing, developer sought and obtained a separate planning permission simply for change of use of its building, without any condition prescribing numerical noise and vibration limits during construction but requiring a construction management plan to be submitted including details of noise control measures. Again, the council discharged the condition on the basis of information submitted by the developer and again the claimant challenged this by way of judicial review.
So the Deputy High Court Judge had two complicated judicial reviews to determine, both revolving around whether the the council had acted properly in discharging the respective conditions. Unusually, on the very day of the hearing the parties reached a further settlement agreement resolving all of the issues. Even more unusually the one matter the parties had not managed to agree upon was the question of who should bear the costs of the proceedings and so the judge had to proceed with a relatively full analysis of the relative strength of the parties’ arguments before finally determining that (you may have seen this coming) each party should bear its own costs.
What an expenditure of time and money all round, at every stage of the process. Surely there must be a better way?
One of the problems is that outside the planning system, potential private law remedies in relation to matters such as noise, vibration and potential effects on the structural stability of adjoining buildings do not provide protection in a particularly straightforward and light-touch way. Yes, actions in private nuisance are available but the Tate Modern case is a high profile example of the inherent uncertainties of that expensive process. Yes, there is also the Party Wall Acts process in relation to certain matters but that only covers a narrow range of the issues arising from development and is in itself a rather antiquated system which could do with a thorough statutory review (for a topical description of the system, see another case last week: Power & Kyson v Shah (Court of Appeal, 7 March 2023)).
What’s the solution? I quite like the Australian approach:
Neighbours need to get to know each other. Next door is only a footstep away.
Finally, can I recommend the latest episode of the Planning Law (With Chickens) podcast by my colleagues Victoria McKeegan and Nikita Sellers. They chat through some of the most interesting things in planning law which have happened in the last few months and also have a good interview with James Wickham of Gerald Eve.
Live arts should be the throbbing heartbeat of any city.
Cultural opportunities, the creative arts and a vibrant night-life are obviously a big reason why those who are the basis of the local economy and its growth, particularly young professionals, choose to put down their roots in a place.
Venues and studios for independent creative arts – for bands, performers and artists to play, rehearse, create – are the petri dish from which something grows that comes to define a city, that may become a mainstream business, employer and exporter in its own right (and we are increasingly in a world where the creative arts and tech are intertwining, making this even more likely).
I’m not talking of dead cultural artefacts, Government money for another Beatles attraction in Liverpool, I’m talking about the between-spaces, the meanwhile-uses, the forgotten-buildings, the spaces-set-aside-by-enlightened-owners – where (at low cost and with a looser set of constraints), from apparently unpromising seeds, flowers bloom.
This is personal for me – it may be for you too. I grew up in Southampton and it was all about the local music venues – seeing people like me 12 feet away on a foot-high stage, then trying it myself, amateur hour or what? – and then about choosing London as my university town, yes for the music and culture – got to confess it wasn’t at that point for the employment opportunities. Where I then stayed, for decades.
As I’ve gradually moved away in time and distance from all this, I’ve realised more and more how important grassroots/independent culture is – not just in the way that it provides a channel for young people to express the raw creativity that we all have before it’s schooled and worked out of us and which often is the most powerful (for being honest) form of artistic expression – but also how important it is for cities and towns themselves. Nowhere should end up as a husk, an artefact, a collection of once interesting buildings and not much else.
We’re going to have a discussion about all of this at a Clubhouse session at 5pm on Monday 1 November, at which I’m so glad that I will be joined by people who know much more than me about how to make culture thrive in cities. Clara Cullen is venue support manager at the Music Venue Trust, which exists to help protect, secure and improve grassroots music venues across the UK. Tom Clarke is national planning advisor at the Theatres Trust, which seeks to protect the future of live performance (of all kinds), by protecting and supporting theatre buildings which meet the needs of their communities (he’s also a live music nut). Stacey Adamiec is a strategic place maker, working with agents, landlords and authorities to create flexi and creative spaces. And most poignantly for me, we have Richard Williams. Richard at one time was leader of Southampton City Council but this is nothing to do with that. In 1981 he released a compilation album of tracks recorded by Southampton bands, called City Walls. It was my last year at home before heading to London – I loved that album as a snapshot in time and place. He then wrote a book about the process of getting it together, “A Curry With John Peel”, and then, this year, 40 years on (40 years!) he released another album of tracks by today’s Southampton bands, City Walls 2. To compare and contrast is fascinating. I am so looking forward to the discussion and very much hope that you can join us – details at the end of this blog post.
It’s been tough for grassroots venues. With conflicting needs for land, given the understandable pressure for brownfield sites to secure housing and employment development; with less and less public funding, nationally or locally, and then in this recent time of pandemic, fear and lockdown.
But in recent years there have at least been some signs of light.
The “asset of community value” designation process introduced by the Localism Act 2011 has helped many venues (eg Heaven, Brixton’s Club 414, Guildford’s Boileroom, the Birds Nest in Deptford, Half Moon in Herne Hill and the After Dark club in Reading to name just a few) but of course the designation ultimately is more of a nudge than providing any absolute protection.
To have the “agent of change” principle included within national planning policy back in July 2018 was a big step forward. In the current NPPF this is paragraph 187:
“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”
Last year, in response to the pandemic, work by the Theatres Trust and others secured two important additional protections for concert halls, venues for live performance and theatres:
• A ministerial statement on 14 July 2020 confirming that venues should be protected, at least for a temporary period, against land owners seeking to argue lack of viability based on the then precarious financial position that many were in:
“The Government recognises that the temporary closure of theatres, concert halls and live music performance venues due to Covid-19 has the potential to lead to permanent loss of important cultural and economic assets, and is determined that otherwise viable facilities are not lost forever.
The purpose of this Written Ministerial Statement, is to set out how local planning authorities should approach decision-making to prevent the unnecessary loss of these venues. With immediate effect, local planning authorities should have due regard to their current circumstances when considering whether to grant planning permission for a change of use or demolition of a theatre, concert hall or live music performance venue that has been made temporarily vacant by Covid-19 business disruption.
Where an alternative use or demolition for a long-term vacant theatre, concert hall or live music performance venue is proposed, local planning authorities should consider the application in the normal way. The Theatres Trust is a statutory consultee under the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I 2015/595) for applications seeking to develop any land where there is a theatre and will have an opportunity to comment on any application relating to theatres.
This policy remains in place until 31 December 2022 unless superseded by a further statement.”
• A change to the General Permitted Development Order on 9 November 2020, meaning that planning permission is now needed for their demolition, in the same way as had previously been introduced for pubs.
I’ll leave others to comment on whether the measures in this week’s Autumn Budget and Spending Review were sufficient but obviously there were various announcements which are potentially relevant:
• “£1.7 billion worth of projects to upgrade local infrastructure through the first bidding round of the £4.8 billion Levelling Up Fund”
• “the first 21 projects to benefit from the £150 million Community Ownership Fund – which will help communities across the UK protect and manage their most treasured assets. This investment puts community priorities at its core and will improve the local infrastructure crucial to everyday life, such as transport and town centres.”
• “Tax reliefs for museums, galleries, theatres and orchestras will further support the cultural life of towns and cities across the UK”.
• “a new temporary business rates relief for eligible retail, hospitality and leisure properties for 2022-23. Eligible properties will receive 50% relief, up to a £110,000 per business cap”
• “funding the £800 million Live Events Reinsurance Scheme”
The Government’s long-awaited Levelling Up White Paper will apparently provide additional proposals. I’m conscious that in many ways this shouldn’t all be about the Government, whose most important role may simply be to “do no harm”. There are an increasing number of important voices and organisations – aside from the Music Venue Trust and Theatres Trust and many other groups, in London of course since 2016 Amy Lamé has been our first “night czar” and able to cast a light on important underlying issues – including the safety of women out at night, and the return of the night tube (from 27 November).
But what more do we need to see, across the country (and in towns as well as cities)?
Do join us at 5pm on Monday – we can chew over all of this, led by our special guests, but hopefully share our own stories about how important grassroots live venues and indie city culture more generally are/have been for us, our families and communities. Just talking about the music is also fine! Link to app here.
Sajid Javid’s statement Strengthened planning rules to protect music venues and their neighbours on 18 January 2018, confirming that the “agent of change” principle would be included in the revised NPPF, was widely supported.
But this was hardly news was it? Go back to the February 2017 housing white paper:
“Noise and other impacts on new developments
A.140 The National Planning Policy Framework, supported by planning guidance, already incorporates elements of the ‘agent of change’ principle (this provides that the person or business responsible for the change should be responsible for managing the impact of that change) in relation to noise, by being clear that existing businesses wanting to grow should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established.
A.141 We propose to amend the Framework to emphasise that planning policies and decisions should take account of existing businesses and other organisations, such as churches, community pubs, music venues and sports clubs, when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. This will help mitigate the risk of restrictions or possible closure of existing businesses and other organisations due to noise and other complaints from occupiers of new developments. ”
The latest statement takes this further forward not one jot. I was blogging about the agent of change principle back in October 2016 in my post Noise Annoys.
The prod for the 18 January announcement was the introduction into the House of Commons on 10 January 2018 of a private members’ bill, the Planning (Agent of Change) Bill, by Labour MP John Spellar. Following the debate on 10 January, the Bill (which has not actually been published at this stage, as is often the case with private members’ bills of this nature which are largely intended just intended to draw attention to an issue) was due to receive a second reading on 19 January but this has now been postponed until 16 March. Presumably the intention of the bill was simply to keep the Government focused on what it had already indicated to do. If this is how politicians have to spend their time but it all seems odd to this outsider.
The agent of change concept really now does have momentum, with a strong campaign run by the Music Venue Trust and supported by the Local Government Association. It is frustrating that even such an apparently simple change to policy (oversold in Javid’s statement as a new “rule”) takes so long to introduce.
The Welsh Assembly was able to move rather faster, introducing an equivalent policy change by its letter letter Supporting the Night Time Economy and the Agent of Change Principle (26 May 2017):
“Existing policy in Planning Policy Wales already says new uses should not be introduced into an area without considering the nature of existing uses. Under the agent of change principle, if new developments or uses are to be introduced near a pre-existing business, such as a live music venue, it is the responsibility of the developer to ensure solutions to address and mitigate noise are put forward as part of proposals and are capable of being implemented.
PPW also encourages local planning authorities to consider the compatibility of uses in areas and afford appropriate protection where they consider it necessary, as part of their development plans. The revisions to PPW will add to this and allow for the designation of areas of cultural significance for music through development plans.”
The letter advises Welsh planning authorities that they “should begin to apply this principle, where it is a relevant consideration, with immediate effect.” Javid could have taken this approach with his 18 January announcement and it is a disappointment that he did not.
The Mayor of London has also of course introduced a policy into the draft London plan.
There has also been coverage this week of the supposed news of further slippage in the publication of the draft NPPF, which would cause further delay to the final document. Senior MCHLG servant Melanie Dawes was reported in Planning magazine as saying to the CLG Commons Select Committee that it would be “ready for consultation in the next few months – I hope just before Easter or thereabouts”, meaning that we should assume it may be at the end of March (“or thereabouts”!). But again, this wasn’t news, given that Government chief planner Steve Quartermain’s 21 December 2017 letter to local authorities had promised the draft “early” in 2018. The letter states that the final version of the revised NPPF would be “before the end of the summer“. In my view this is careful wording: we should not necessarily assume that we will see it this side of the Parliamentary recess (which starts on 20 July). Which of course has an immediate influence on those authorities who had either been rushing to submit their local plans by the end of March 2018 or waiting until after that deadline, depending on their tactical judgment as to how they would be affected by the proposed standardised methodology for assessing housing needs – that end of March deadline is now a late summer deadline.
Honestly, it would be enough to make one scream, if it wasn’t for the neighbours.
Simon Ricketts, 19.1.18
Personal views, et cetera
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: London 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 thewell-publicised battle that has been fought by Air Studios in Hampstead against a nearby super-basement proposal. Manchester
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…. Final bars
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
SIMONICITY 