To a flurry of media attention last month, Sadiq Khan announced on his Facebook page that he would be introducing an ‘Agent of Change’ rule into the next London Plan in order to protect London’s existing venues from the threat of neighbouring development. There was scant detail in the announcement itself but last week the Mayor published ‘A City for all Londoners’, a statement of his ambitions as Mayor. This document states that the Mayor will “explore the potential for new policies in the London Plan that would mean developers would bear the costs for soundproofing new homes, relieving pressure on the existing venues in an area – the ‘agent-of-change’ principle”. Further detail is promised in forthcoming Night-Time Economy Supplementary Planning Guidance. There will also be “the world’s first cultural infrastructure plan” in due course.
The idea of the ‘Agent of Change’ principle is, of itself, nothing new and the Mayor’s policy announcement is simply following one of the recommendations made by the (previous) Mayor of London’s Music Venue’s Taskforce in its ‘London’s Grassroots Music Venues Rescue Plan’ published last October. The wider context for this (the Mayor’s statement of ambitions aside) is the increasing list of high-profile/long-established London venues under apparent or actual threat of closure.
Two questions immediately arise around the Mayor’s announcement:
- What exactly does the Mayor have in mind?
- What difference will this make in practice?
These two questions are naturally inter-linked. Regarding 1, the Mayor’s new ‘Agent of Change’ policy could take a number of forms, ranging from ‘warm words’ about needing to take particular account of existing venues when considering planning applications for new residential development to a ‘full on’ policy presumption against such development unless and until the applicant has shown it can satisfactorily mitigate any likely noise effects from the existing venues.
Where the policy falls within this sliding scale of options feeds into 2, and there is a corresponding debate to be had about where the proper balance should lie. Tip the balance too far and the policy could hinder development that would otherwise come forward, which could adversely affect the local economy and in turn the long-term viability of an existing venue. In other words it could actually inhibit the objective of protecting London’s cultural infrastructure and the ambition of ‘good growth’ set out in the Mayor’s latest publication.
It would appear from the words that the Mayor is now using in relation to the ‘Agent of Change’ principle – “to explore the potential for new policies” - that he has yet to make up his mind as to the precise form that this policy should take, if any. However, even at the ‘extreme end’ of the policy range – i.e. a policy presumption against new residential development - it is questionable what difference the Mayor’s proposed new ‘rule’ would actually make in practice.
Firstly, those London Boroughs where the mixed/night-time economy is particularly prevalent will already have development plan policies in place that recognise this. More generally, most councils have adopted planning policies which require new residential developments to be suitably designed, including in terms of minimising noise exposure to external sources. Accordingly, whilst there may not be an explicit ‘Agent of Change’ policy in their existing development plans, most (if not all) London Boroughs already have a matrix of adopted policies that together could be said to amount to the same thing.
Secondly, planning applications are not determined in a vacuum. When determining an application, local planning authorities must take account of all material considerations as well as their development plan policies. Material considerations would include the existing uses around the application site and any objections from neighbours concerning the compatibility of such uses with the proposed new use.
Thirdly, whilst the Mayor’s Facebook announcement referred to the introduction of an ‘Agent of Change’ “rule”, what he could only be referring to was new policy, not legislative change. The statutory duty on local planning authorities is to determine each application in accordance with their development plan policies unless material considerations indicate otherwise. Any new policy requirement would simply fall into the ‘pot’ of policies and material considerations to be considered by the local planning authority when determining a planning application; the new policy would not, of itself, prohibit a contrary decision from being reached.
Whilst local authorities are able to apply their own planning judgment when determining planning applications there are, of course, limits to this and sometimes they do fall into legal error. In these circumstances any grant of planning permission would be challengeable by way of judicial review.
An illustration of this is found in our own experience of acting for Obar Camden Limited, the operators of the Koko Club in Camden. Obar successfully judicially reviewed the London Borough of Camden’s decision to grant planning permission for the conversion of an adjacent public house into residential flats. The Court found four out of five grounds in the claim in Obar’s favour, including that the noise-related conditions imposed on the permission were irrational. This was on the basis of evidence from Obar’s noise consultant that the conditions failed to achieve their aim of protecting future residents from noise from Koko.
In other words the Council recognised the existence of the Koko Club next door to the application site and the potential noise problems that would flow from this but fell into legal error in how it tried to resolve those issues.
And this is perhaps the nub of it all: It is not so much that the planning regime currently ignores the existence of nearby venues and does not recognise the need for developers to provide appropriate noise mitigation in their own developments (to the contrary in fact), rather councils are able to exercise their own planning judgment when determining applications and sometimes they err in their decision-making. A particular problem in these cases (which the Koko Club claim is an example of) is that councils have to form views on what are often complex noise issues and do not always have the necessary in-house resource to be able to properly do so.
More generally, as the Mayor’s Music Venues Taskforce recognised in its Rescue Plan, the challenges that existing venues face are complex and extend beyond the planning regime. (The recent closure of the Fabric night club, for example, was due to licensing problems). In this context and the wider narrative of the Night Tube and the Night Czar, the Mayor’s interest in the introduction of an ‘Agent of Change’ rule seems more a statement of solidarity to the cause of London’s night-life than a game-changing announcement.