Noise Impact from Existing Businesses on Residential Developments

Readers will be aware of the recent announcement to amend Class O of the Town & Country Planning (General Permitted Development) Order 2015 which will come into effect on 6 April 2016. The main effect of this amendment will be that Local Planning Authorities will have to consider noise impact on new residents from existing businesses, when considering new residential proposal developments.

Permitted development rights have been extended in recent years to allow certain developments to take place without the need to go through the full planning system. The new regulations mean that developers are now required to seek prior approval on noise impact before a change of use from an office to a residential building can be carried out. Developer proposals to use permitted development rights to convert offices to flats (which are often located immediately above or adjacent to licensed premises) do not require planning permission. However, the new legislation introduces the potential of noise impact from existing commercial uses upon any proposed new flats to be assessed prior to the “permitted rights” being exercised by the developer.

In essence, developers will now have to demonstrate that such noise sensitive residential proposals will not be exposed to excessive noise from existing, authorised licensed premises. If there are potential noise impacts identified, full details of construction methods for noise attenuation will need to be submitted for approval.

This new “development” (forgive the pun) has been welcomed by UK Music, the Music Venue Trust, The Musicians Union as well as trade bodies. It also goes to the core of what the PMA has been advocating in its Make Some Noise Campaign. I also welcome the news. Whilst it does not go as far as the Agent for Change principle it is very much a step in the right direction. You may remember that the Agent for Change principle, if adopted, would require the developer to be responsible for the effective sound proofing of any new residential building to ensure that existing businesses (including music venues) are not suddenly inundated with noise complaints where previously there had been none. In essence the principle says that the person or business responsible for the change is responsible for the impact of the change.

The last few years have seen a gradual improvement of the legislative landscape for music venues, starting with the Live Music Act 2012, various secondary legislation between 2013 and 2015 effectively de-licensing much regulated entertainment until 11pm, changes to planning guidance and indeed Boris Johnson’s recent announcement to set up a “Night Time Commission” in London, focussing on the significant pressures faced by the night time economy in our capital.

What practical effect will this new change to the planning regime have? That, as in most things in life, depends very much on the timing. In the past, I have had clients contact me stating that their licence is being threatened with Review because of noise nuisance allegedly caused by their pub or bar to the occupants of new flats or houses close by. Often, the only natural legal forum left to deal with the issue of noise is the licensing one. The statutory Guidance classes noise nuisance as including “low level” nuisance; a low threshold and difficult to contest. Whilst in my experience many licensing sub-committees will explicitly or implicitly allow for the fact that the pub has been there for 100 years whereas the complainants only moved in six months ago, this is not a legal environment in which you really want to find yourself relying on someone’s better nature. Much better to have any potential noise issues ironed out by the developer themselves in noise attenuation works carried out when the venue is being built.

This is where the amendment to the existing permitted development rights may assist. Class O allows the permitted development right for the conversion of existing offices to residential units. As part of this process, the developer must apply to the Local Authority seeking determination as to whether prior approval will be required. Currently, only impacts upon matters such as transport, highways, contamination and flooding need to be considered. However, from 6 April 2016 the impact of noise from commercial premises [e.g. your bar or pub] on the intended occupiers of the development will also need to be considered. Operators will be able to make representations to prior approval applications and alert the Council to potential noise issues.

In other words, the issue of noise from your premises will have to be dealt with upfront by the developer and a proper assessment of those impacts will have to be made.

Whilst this does not constitute the introduction of an Agent of Change principle, the new regulations do mark a welcome step change in planning law.

With thanks to Jonathan Phillips, Group Planning Partner at Bidwells for his contribution to this article.