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.
I have dealt before with the inevitable mission creep over time, eg in my 4 April 2023 blog post Tate Modern Viewing Platform Supreme Court Ruling: What Is There For Planners To See?
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.
Simon Ricketts, 11 March 2023
Personal views, et cetera