AGENT OF CHANGE BRIEFING

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1 AGENT OF CHANGE BRIEFING What is the Agent of Change Principle? 1. Agent of Change is a term that is used to describe various approaches to controlling the relationship between new built development ( typically residential), and extant noise sources (typically, music venues). 2. The Agent of Change principle is often discussed as if it were one single, concrete concept, but it is not. 3. The Agent of Change principle appears in a number of different forms throughout planning policy and guidance, but it does not have any definition within statutory law. It is sometimes described as a rule which requires incoming developers building new residential properties near existing music venues to install sound insulation into their new buildings, but this is a very narrow interpretation of the principle. The principle could cover anything from insulating new build, to insulating the music source, to reaching agreements concerning tenancies, financial exchanges, or a multitude of other arrangements that secures the harmonious co-existence of noise sources and noise receptors. A law defining such a principle is therefore necessarily NPPF & NPPG 4. The National Planning Policy Framework ( NPPF) and the National Planning Practice Guidance ( NPPG) are Government policy, and not law. Versions of the Agent of Change principle are seen in this policy. National Planning Policy Framework at paragraph 123 requires attention to be paid to impacts of new development upon existing businesses. The Planning Practice Guidance provides further information on how to mitigate the adverse impacts of noise. Both sets of guidance have existed since Permitted Development Rights 5. In 2013, the Agent of Change principle was reflected in new permitted development regulations, exclusively upon the conversion of office buildings to residential units. 1

2 When the new permitted development (PD) right (change from office to residential) was first introduced in May 2013, the right to convert was time limited. On 13 October 2015, the Government confirmed that this PD right would be put on a permanent footing. 6. The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 [ 2016 /No. 332] (the Amendment Order 2016) to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015) was published, and came into force on 6 April Local planning authorities were given the power under the Amendment Order 2016 to consider noise impacts concerning any permitted development that was being converted in this way. At the time of the grant of the temporary PD right for the change from offices to residential prior to April 2016, the Council was not given the power to add any condition in relation to noise or noise mitigation. After April 2016, any grant of prior approval for this change of use could include any necessary additional conditions, which allowed the LPA to consider mitigation proposals in respect of any noise impacts from surrounding commercial uses on the intended residential occupiers of the development. This was envisaged to relate to any noisy businesses ( including music venues) in the vicinity of the proposed residential units. 8. This limited change, which only affects the conversion of office buildings, that has sometimes been referred to as an Agent of Change rule. Housing & Planning Act. 9. In December 2015, there was some suggestion that an agent of change principle would go into law in the forthcoming Housing and Planning Bill. In April 2016, the UK s Housing and Planning Act was passed into law. It does not contain anything which assists with regard to agent of change. London Plan 10. In November 2016, the Mayor of London announced that he would be introducing an Agent of Change rule into the next London Plan. This is now reflected as Policy D12. [ See Appendix A for full text of Policy D12]. 2

3 Housing White Paper 11. On 7 February 2017, the Government published the Housing White Paper - Fixing our broken housing market. 12. Annex at A.140 and A.141 states: 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. 13. This was publicised at the time as being a major breakthrough and another huge step forward for protecting music venues because it extends the impact of existing agent of change style legislation and advice. The reality is that this was not as extensive as publicised, and this was a fairly small commitment to give somewhat greater emphasis to the consideration of existing businesses as a material consideration when making planning decisions. This would be in policy the NPPF and not in legislation. Wales 14. In May 2017, the Welsh Assemby announced the intention to adopt the agent of change principle into future editions of Planning Policy Wales, ( the equivalent of the NPPF). Under the Welsh 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 3

4 proposals. It is also the developer s responsibility to ensure the measures are capable of being implemented. Supporting the Night Time Economy and the Agent of Change Principle Scotland 15. On 5 December 2017, a ministerial statement on Planning was made at Holyrood on the Tuesday 5 December by Lewis MacDonald MSP with regard to the implementation of the Agent of Change principle in Scotland. 16. Mr. MacDonald MSP intended to ask a question in parliament on Wednesday 6 December, to find out how the Scottish government plans to provide legislation that protects live music venues. John Spellar MP Private Member s Bill 17. In November 2017, John Spellar MP announced a private members bill to introduce the Agent of Change principle into law. His proposed bill was discussed on BBC Radio 4 s programme Front Row on 12 December On 10 January 2018, Jon Spellar s Private Member s Bill received its first reading under the ten minute rule as the Planning (Agent of Change) Bill. It received significant support and no objections. There was a very high turnout for the public launch of the Bill and this was widely covered in the Press with many high profile artists declaring their support for the Bill. Sarah Clover Kings Chambers 11 January

5 APPENDIX A John Spellar Private Member s Bill Planning (Agent of Change) Bill Clause 1 General Duty of Local Planning Authorities. In exercising or performing any planning functions within the meaning of Schedule 1 of the Town & Country Planning Act 1990 concerning a development within the meaning of s 55 TCPA 1990 which is or is likely to be affected by an existing noise source the relevant local planning authority shall have special regard to the desirability of preventing unreasonable consequences for that source of noise resulting from the implementation of the development. Clause 2 Duties on Developers. An application for development in the vicinity of any premises licensed for the provision of regulated entertainment [ within the meaning of Schedule 1 of the Licensing Act 2003] under the Licensing Act 2003 shall contain in addition to any relevant requirements of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (a) a Noise Impact Assessment and (b) such other particulars as may be required by the Local Authority. 5

6 APPENDIX B London Plan Policy D12 Agent of Change A. The Agent of Change principle places the responsibility for mitigating impacts from existing noise-generating activities or uses on the proposed new noise-sensitive development. B. Boroughs should ensure that planning decisions reflect the Agent of Change principle and take account of existing noise-generating uses in a sensitive manner when new development, particularly residential, is proposed nearby. C. Development proposals should manage noise and other potential nuisances by: 1. ensuring good acoustic design to mitigate and minimise existing and potential impacts of noise generated by existing uses located in the area 2. exploring mitigation measures early in the design stage, with necessary and appropriate provisions secured through planning obligations 3. separating new noise-sensitive development where possible from existing noisegenerating businesses through distance, screening, internal layout, sound-proofing and insulation, and other acoustic design measures. D. Development should be designed to ensure that established noise-generating venues remain viable and can continue or grow without unreasonable restrictions being placed on them. E. New noise-generating development, such as industrial uses, music venues, pubs, rail infrastructure, schools and sporting venues proposed close to residential and other noisesensitive development should put in place measures such as soundproofing to mitigate and manage any noise impacts for neighbouring residents and businesses. F. Boroughs should refuse development proposals that have not clearly demonstrated how noise impacts will be mitigated and managed For a long time, the responsibility for managing and mitigating the impact of noise on neighbouring residents and businesses has been placed on the business or activity making the noise, regardless of how long the noise-generating business or activity has been operating in the area. In many cases, this has led to newly-arrived residents complaining about noise from existing businesses, sometimes forcing the businesses to close down. 6

7 The Agent of Change principle places the responsibility for mitigating the impact of noise firmly on the new development. This means that where new developments are proposed close to existing noise-generating uses, applicants will need to design them in a more sensitive way to protect the new occupiers, such as new residents, businesses, schools and religious institutions, from noise impacts. This could include paying for soundproofing for the existing noise-generating uses, such as an existing music venue. The Agent of Change principle works both ways. If a new noise-generating use is proposed close to existing noise-sensitive uses, such as residential development or businesses, the onus is on the new use to ensure its building or activity is designed to protect existing users or residents from noise impacts The Agent of Change principle is included in the National Planning Policy Framework at paragraph 123 and Planning Practice Guidance provides further information on how to mitigate the adverse impacts of noise[32]. [32] NPPG, Noise-generating cultural venues such as theatres, concert halls, pubs and live music venues should be protected (see Policy HC5 Supporting London s culture and creative industries. This requires a sensitive approach to managing change in the surrounding area. Adjacent development and land uses should be brought forward and designed in ways which ensure established cultural venues remain viable and can continue in their present form without the prospect of licensing restrictions or the threat of closure due to noise complaints from neighbours Housing and other noise-sensitive development proposed near to an existing noise-generating use should include necessary acoustic design measures. This will ensure new development has effective sound insulation to mitigate and minimise potential noise impact or neighbour amenity issues. Mitigation measures should be explored at an early stage in the design process, with necessary and appropriate provisions secured through planning obligations. 7

8 Some permitted development, including change of use from office to residential, requires noise impacts to be taken into consideration by the Local Planning Authority as part of the prior approval process. Boroughs must take account of national planning policy and guidance on noise, and therefore the Agent of Change principle would apply to these applications Noise impact assessments accompanying planning applications should be carefully tailored to local circumstances and be fit for purpose. That way, the noise characteristics of existing uses can be properly captured and assessed. For example, cultural venues can have peaks of noise at different times of the day and night and on different days of the week, and boroughs should require a noise impact assessment to take this into consideration. Boroughs should pay close attention to the assumptions made and methods used in noise impact assessments to ensure a full and accurate assessment Reference should be made to Policy D13 Noise which considers the impacts of noisegenerating activities on a wider scale. Further guidance on managing and mitigating noise in mixed-use development and town centre development is also provided in the Mayor s London Environment Strategy. 8

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