The Ever Increasing Noise Around the Agent of Change Principle
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The ever increasing noise around the Agent of Change principle February 23, 2018 Summary In the wake of a number of recent announcements by the Government and others, it has been widely reported that the Agent of Change principle is being adopted into planning law. This blog seeks to cut through the media noise by examining what is happening and why. Background In a planning context, the Agent of Change principle is the notion that a party introducing a new use should be responsible for managing the impact of the same, including where the new use is more sensitive than existing uses around it. For example, where a new residential development is proposed next to a late night music venue or nightclub, under the principle it would be the developer’s responsibility to provide any mitigation necessary to avoid noise impacts on the new residents and therefore any consequential adverse impacts for the existing venue (e.g. complaints from the new residents triggering a licence review). Against a backdrop of increasing numbers of late night/music venues either closing or under threat in recent years, the adoption of the principle into the planning system is seen as providing important protection for existing venues. For this reason the principle has been the subject of a long running and high profile campaign led by the Music Venues Trust. My previous blog considered the proposed introduction of the principle into the London Plan and what difference this would make in practice. Policy Update Page 1 of 4 So, what has happened since my previous blog to generate the current media noise around the Agent of Change principle? Well, following the policy trajectory set by the Mayor of London’s Facebook announcement in autumn 2016, there have been a number of recent policy announcements/developments concerning the principle, namely: The National Planning Policy Framework (NPPF): Although the updated NPPF is not due to be published and consulted on until spring 2018 at the earliest, the Housing Secretary announced in mid-January that the revised NPPF will include detailed reference to the Agent of Change principle. The London Plan: The Mayor is currently consulting on his new draft London Plan, which incorporates Policy D12, an Agent of Change-specific policy. This requires the London Boroughs to ensure that planning decisions reflect the Agent of Change principle and to refuse proposals that have not clearly demonstrated how noise impacts will be mitigated and managed. The current consultation closes in March. Planning Policy Wales: Last week the Welsh Government launched its consultation on the revised Planning Policy Wales (Edition 10). Paragraphs 3.96-3.101 cover the importance of evening and night-time economies, with paragraph 3.97 stating that the Agent of Change principle will be “a guiding principle”. The consultation runs until mid- May. As it can be seen from the above, the Agent of Change principle is rapidly becoming the policy de jour and, for those championing its adoption, undoubtedly these are all positive steps forward. But a note of caution: All of the above is policy, not law. As such, it is simply not correct to describe the principle as being incorporated into planning law. Whilst the statutory duty on local plan authorities requires them to determine planning applications in accordance with their development plans unless material considerations indicate otherwise, each local planning authority has to ultimately exercise its planning judgment in discharging this duty. This will often involve balancing competing policies and interests, including strong policy support for new residential development. Page 2 of 4 It should also be highlighted that none of this is totally new either. Elements of the Agent of Change principle already exist in planning policy at all levels. In particular, the existing NPPF (at paragraph 123) and the associated NPPG on noise give effect to the principle, albeit that they do not refer to it by name. Oddly the Housing Secretary’s recent announcement does not acknowledge this. Legislative change on the horizon? Whilst it is not presently correct to say that the Agent of Change principle has been incorporated into planning law, could this be about to change? Buried within the Housing Secretary’s January statement concerning the NPPF is a passing reference to John Spellar MP and “his Ten Minute Rule Bill”. This is the Planning (Agent of Change) Bill, a Private Members Bill introduced to Parliament under the Ten Minute Rule in January. Based on the draft text published by the Music Venues Trust, the Bill proposes the introduction of a new general “special regard” duty on local planning authorities concerning development likely to be affected by an existing noise source, as well as a new procedural requirement to include a noise impact assessment in applications for development within the vicinity of licensed premises. Although the Bill is due to have its second reading debate in mid-March, the likelihood of it passing into law is, by its very nature, remote. This is because Ten Minute Rule Bills are not always serious attempts at legislation, with the process often being used as a means to make a point, gain publicity, obtain assurances/concessions from or otherwise influence the Government on a particular subject. The fact that the Housing Secretary’s press release on the NPPF refers to the Bill in the context of working with the promoting MP “to ensure that planning policy reflects what the industry needs” may in fact suggest that the Bill has already served its purpose. This may be unfair comment. Some Private Members Bills do, of course, become law and some important legislation has been made this way. The campaign behind the Bill is certainly genuine and a broader purpose was put forward during the Bill’s first reading in January: Brexit. Yes, the ‘B’ word. John Spellar’s explanation went thus: Page 3 of 4 As Brexit is happening and we face an uncertain future, it is vital that Britain is made more efficient and effective across the board and that we maximise every possible advantage that Britain has. One of these is clearly our cultural and entertainment offer Some might say that this is arguably as much of a vision of post-Brexit Britain as anything that the Government has officially offered to date. Should the Government choose to throw its weight behind it, the Bill could yet defy the odds against it. Unless the Bill does progress to legislation, however, the noise around the adoption of the Agent of Change principle into planning law will remain just that. But there is no denying the greater emphasis that is being placed on the principle and the fact that it is being further embedded into planning policy. As a consequence, developers should expect greater scrutiny of noise sensitive schemes going forward. RELATED PRACTICES Planning and Zoning Real Estate This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action. Page 4 of 4.