Cautionary tale for schemes near noise sources

An important case that emerged in January has potentially serious repercussions for development proposals sited near noise sources, particularly within the night-time economy. This builds upon the increasingly vigorous application of the ‘Agent of Change’ principle, set out in paragraphs 180 and 182 of the NPPF.

The Interested Party, Sussex Inns Ltd, operated The Vestry as a bar/nightclub. The Vestry had a certificate of lawfulness for use as a pub/restaurant, and a premises licence, which didn’t restrict its noise output.

The Claimant, Parkview Homes, a property owner and developer owned the property next to the Vestry, and was granted planning permission for residential development there.

The Vestry resisted this, unsuccessfully, on the basis that its own actual operation went beyond its permission and Certificate of Lawful Existing Use or Development, and that it was, in fact, a nightclub with significant noise output that would be very difficult to control or mitigate with planning conditions.

The Vestry then sought to regularise its own position, by applying for a s.73 variation of its conditions to secure a planning permission that reflected its actual nightclub operation.

Parkview objected on the basis that it now had residential permission next door, and the noise from the Vestry was already at a level that could be expected to cause problems, and this ought not to be regularised.

West Sussex Council’s Environmental Health team were only satisfied that the noise mitigation proposed for Parkview’s residential development would be adequate to mitigate against the lawful use of the Vestry as a pub/restaurant environment, and that the mitigation proposed would not be good enough to control the intrusion of the Vestry’s current activities as a nightclub.

The EHO did not approve of the Vestry’s proposed conditions, and although they stated that there might be other appropriate conditions and noise control measures that could be imposed, no one had suggested what those could be, and there was no clear solution on the table. Nevertheless, the Council granted the s. 73 permission to the Vestry under delegated powers.

The key condition that the Council attempted to use to control music noise breakout was in written in terms of measured noise rating curve limits in different residential rooms. The Council supplemented the conditions with informatives, including one concerning a noise limiter.

The Judge found the permission unlawful. He rejected the informatives as being unenforceable, and imposed precisely because the Council had concluded that conditions in the same terms would have been unenforceable.

Effectively, he concluded that it was not acceptable to impose a condition for future noise control and mitigation in situations where there could be no confidence that those measures would actually work, and with a failure to identify a clear path to achieving it.

He was not satisfied with the noise rating curve condition alone, nor the Vestry’s suggestion that it was for them to find a way to comply with it. It is not always possible to identify measures that will definitively control noise, and “batting the issue off into the long grass” for future solutions in a condition may not be appropriate, or indeed lawful.

The Judge did not think that the imposition of such a noise ceiling was enough, without identifying some means by which the Vestry could meet it. By virtue of the informatives, the Council had effectively acknowledged that they could not hold the Vestry to meeting the ceiling through enforceable conditions.

This case is a cautionary tale for developers or planning decision-makers who are tempted to defer detailed consideration of sound mitigation measures to some point after permission has been granted, and to rely on “holding” conditions to submit mitigation assessments and proposals in the future.

The spotlight on these issues becomes ever more acute as night-time economy licensees enter the planning arena more and more frequently to argue their corner regarding new residential development on their doorstep.

All of the Parkview principles would apply with equal vigour if deployed by a licensee against a developer, and this case is a useful analysis of some of the problems that are commonly encountered.

• The case referred to in this article is R (oao) Parkview Homes Limited ( Claimant) v Chichester District Council (Defendant) & Sussex Inns Ltd (Interested Party) [2021] EWHC 59 (Admin)

Sarah is one of few barristers that specialises in both planning and licensing law. She has been involved in some of the most important cases in the last decade, and is a pioneer in this modern licensing regime. Sarah has been successfully involved in challenging the Home Office and Police forces to settle statutory interpretation of the Licensing Act 2003. She is nationally recognised as an expert in this field. Sarah is chair of the West Midlands Region of the Institute of Licensing, and sits on the Board of Directors. She was the Specialist Adviser to the House of Lords Select Committee on the Licensing Act 2003 from June 2016 to March 2017.