Planning, noise, nuisance and the balance of interests

Micheal Eade is an experienced environmental health practitioner with a background in law. With the publication this week of  long awaited Planning Practice Guidance,  he uses recent cases to examine the role of planning in preventing noise problems in mixed developments.

So often complaints of noise come about as a consequence of conflict between the proximity of residential property to commercial or industrial premises. To a certain extent, different land uses and activities need to co-exist in modern society; even more so on our  crowded island. Over the last half a century planning controls have played an extremely important role in establishing the balance between the benefits of a proposed development and any potential adverse consequences. Two very different noise related cases, both concerning the grant of planning permission, have recently been publicised.

The first is the case of Coventry v Lawrence dealt with by the Supreme Court. Here the respondents’ activities at a speedway stadium and motocross track were judged to be a nuisance. The defendant had previously been given planning permission to carry out motorsport activities. It is clear that nuisance laws provide a control over unreasonable new or intensified activities. If it is accepted that noise interference may result from the award of planning permission the first question to answer was whether an individual may bring a claim of nuisance against a developer who has been granted lawful planning permission to undertake a noise making activity?

In principle, and in short, the answer provided by the judgement in Coventry is that the grant of planning permission does not deprive a property owner of a right to object to nuisance. However, where planning permission has been granted and noise carefully considered it, and any noise conditions attached, may be used as a useful starting point in determining nuisance. It may also lead to a change in the pattern of use that may be considered in the assessment of the character of the area (the acceptability of a person’s activity is judged by reference to the “character of the locality”). Although, only to the extent that those activities do not constitute a nuisance in themselves.

Previously, there had been few limits attached to the activities of the stadium (other than some limits on days and hours of use). In our second case, that relating to an application for planning permission, a residential housing development has more recently been agreed subject to much more specific noise conditions.

The proposed development of Eileen House (a group of over 300 residential units), next to the popular London nightclub Ministry of Sound, was subject to a planning decision taken through the intervention of the Mayor of London. The principle representation at the planning hearing was put forward by nightclub owners who, quite reasonably, feared that any future use of the club may be jeopardised in the event of a complaint made by a future resident.

The Mayor of London, in making his decision, sought to balance the interests of the club (as an employer and cultural landmark) against that of the developers (who would be helping to regenerate that part of London). In doing so, the application was approved subject to a number of acoustic conditions. These included a condition requiring a specified level of noise mitigation to be achieved and winter gardens (sealed balconies) installed; resulting, perhaps, in a rather sanitary habitat.

So what of the rights of the incoming residents? Well, it is a long established principle that “coming to the nuisance is no defence”. However, it was emphasised in the Coventry case that there are limited circumstances where it may be a defence to show that a potential claimant moved into a property after a nuisance had started. This would be limited to include circumstances where a change in the use of land was made by the claimant that resulted in any pre-existing activity becoming a nuisance. For one reason or another, this matter was approached in the Eileen House hearing through assurances by the developer that the design features relating to noise mitigation would remain in place in perpetuity.

[There was also discussion of a potential of an easement (formed by a private agreement between the developer and Ministry of Sound) that would, effectively, allow the night club to continue to make the same level of noise and limit the opportunity for residents to lodge a complaint on noise grounds. However, there was no talk of the right to nuisance by prescription, another judgement reiterated in the Coventry case, which may allow long-standing polluters to continue unabated].

Planning is the first line of defence against nuisance and, as opposed to nuisance law, can be used as a proactive way of minimising the impact caused by development (arguably, an opportunity missed in respect of Coventry). Conversely, it can help prevent new residential or sensitive developments from being unsuitably located near commercial or industrial sources of pollution. The Eileen House application highlights one of the difficulties posed when the latter is the case; as there is clearly limited opportunity in controlling any potential source of nuisance. It is not the role of planners (or licensing authorities) to impose or negotiate noise controls on third parties; in this case a night club. Arguably, nor should it be,despite how practical and effective it may be, to control noise at source. On the other hand, polluters do not have the right to prevent future development, or dictate that it be made “bombproof”, if there are reasonable justifications for sustainable development.

Inevitably, in the course of exercising this important balancing role, there will be adverse consequences; some of which place authorities in uncomfortable positions later down the line. This is because the enforcing authority for environmental matters will very often reside within the very same building as the planning authority – professionals employed by the same local authority. Be it a home next to a smelly sewage works, a childrens’ nursery in a quiet terraced street or flats adjoining a popular jazz venue; most urban local authorities will have encountered “comeback”.

In such circumstances it is usually the Environmental Health Officer (EHO) who will be the first to receive a nuisance complaint. The local authority (as represented by the EHO) then has a duty to investigate and take action (through the service of notices) where statutory nuisances are found to exist (separated, yet not distinct, from the civil nuisance regime). At this stage the role of the EHO is primarily reactive; as an enforcer. However, the EHO also has a wider role to play as a statutory consultee; and this is where the process can come full circle. He/she may be consulted at the application stage by the planning authority and asked to provide comments relating to potential loss of amenity.

The National Planning Policy Framework is now placed firmly within the context of the Government’s  policy on sustainable development.  With the renewed emphasis here on development of previously used land, and mixed use areas, the issues raised may become more common as there are competing development  needs that interested parties must seek to balance. Prevention is better than cure though, so whilst an EHO cannot always win out against any dominant economic or political considerations, they can (at least) get their thoughts on record at the early stage. It is important, when cuts are being made to public protection services that this role be protected.

Michael Eade BSc LLM
Encentre | Environmental Health

01932 761328

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