22 Aug 2018

The new revised National Planning Policy Framework (NPPF2) was delivered and came into force on 24 July 2018. 

The Government received just over 29,000 responses to its consultation, which closed on 10 May this year. Its response to the consultation was published at the same time, as the final version of NPPF2, and notes that it has made a number of important changes, but this briefing only considers one of these in more detail.

The agent of change principle 

The 'agent of change principle' encapsulates the position that a person or business (ie the agent) introducing a new land use is responsible for managing the impact of that change. The practical issue that has arisen on occasion is that in circumstances where residents move into an area where noise is emanating from eg a long-standing music venue, this may have resulted in the Local Planning Authority (LPA) imposing additional licensing restrictions on the established licensed venue. Campaigners on behalf of licensed premises have long advocated support for implementation of an 'agent of change' principle to place the responsibility for noise management measures on the incoming 'agent of change'.

 The principle has had a reasonable gestation prior to its inclusion in NPPF2 in its current form.  There was extensive debate of the principle following the introduction of government policy allowing permitted development rights for the change of use of office buildings to residential. This policy was first introduced in the context of an economy struggling to recover and the government's desire to stimulate development rapidly. At that time two much publicised reports relating to licensed premises were published (in 2016) and added significant fuel to the debate on noise and the permitted development rights. For more information see our article here.

Early in 2017 the Select Committee on the Licensing Act 2003 recommend "that a full 'Agent of Change' principle be adopted in both planning and licensing guidance to help protect both licensed premises and local residents from consequences arising from any new built development in their nearby vicinity. (Paragraph 553)". 

A proposal to amend the framework to emphasise that planning policies and decisions should take account of existing businesses and other organisations when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development was included in the Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017). 

Subsequently, in January 2018 the Ministry of Housing, Communities and Local Government made a statement confirming that the framework would be clarified to include detailed reference to the agent of change principle.

New NPPF2 provisions

The Government's response to the consultation published at the same time as NPPF2 welcomed the "strong support" for the agent of change principle. In response to consultation the Government has changed "statutory nuisance" to "significant adverse effects", and the footnote to paragraph 180 refers to the 'Explanatory Note to the Noise Policy Statement for England (Department for Environment, Food & Rural Affairs, 2010' which provides further guidance on the phrase "significant adverse". 

It is well established that an entertainment venue moving into an area adjacent to residents has to take measures to ensure that the activities in the new building will not cause noise problems for those living nearby. Paragraph 180 in Chapter 15 of NPPF2 provides that both planning policies and decisions should ensure that new development is appropriate for its location taking into account the likely effects (including cumulative effects) of pollution on health, living conditions and the natural environment, as well as the potential sensitivity of the site or the wider area to impacts that could arise from the development. In doing so they should: a) mitigate and reduce to a minimum potential adverse impacts resulting from noise from new development and avoid noise giving rise to significant adverse impacts on health and the quality of life. 

But the position in reverse, where new residential development locates near to a noise source, has not been equally clear. The previous framework stated that planning policies and decisions should "aim to recognise that (…) existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established;" 

The inclusion of an explicit reference to the agent of change principle in NPPF2 is therefore a change of emphasis and clarifies the application of the principle. The new paragraph 182 of NPPF2 now states that both planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (eg places of worship, pubs, music venues and sports clubs). "Unreasonable restrictions" should not be placed on existing businesses as a result of development permitted after they were established. "Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or 'agent of change') should be required to provide suitable mitigation before the development has been completed."

Anticipated effect of the new provisions

All planning authorities must have regard to the policies in NPPF2 in making decisions on applications and in framing their own planning policy. For LPAs this means that they should have regard to the agent of change principle in setting their polices. On development proposals, LPAs should provide guidance to developers on what steps may be taken to reduce the impact of eg entertainment venues on any new residential development that developer is proposing.

For developers this means that where they are proposing residential development they should consider if there could be a significant adverse effect on future occupiers of that development from any nearby source(s) of noise such as pre-existing entertainment venue(s). Where a potential significant adverse effect is identified, developers are likely to be required to factor into their planning application suitable mitigation measures to avoid any significant adverse impacts on health and the quality of life for future occupiers.  

There is a balance to be struck between competing policies and with the housing supply policy objective. One may anticipate that any technical evidence submitted in support of noise-sensitive development may attract more scrutiny from LPAs and that they may attach conditions which require suitable mitigation. Where noise issues may arise, early discussions between the developer and the council would be prudent.  

Furthermore, the use of conditions and/or planning obligations to mitigate noise impacts and other nuisances could increase, which may result in knock on effects for scheme viability.

It remains to be seen how the application of the policy will factor into future licensing reviews. One may anticipate, assuming no change in the operation of a venue, if there is supervening residential development then the application of the principle should mean that no "unreasonable restrictions" should be placed on the existing venue. A failure to factor this into development decisions early on may play out in the future marketability of the new development. 

How might the principle interplay with statutory nuisance?

The agent of change principle is not part of a defence to proceedings in statutory nuisance under the Environmental Protection Act 1990 or in common law nuisance. However, it may come to be seen as part of a wider re-interpretation of what amounts to reasonable use of land. In Coventry v Lawrence [2014] UKSC 13 the Supreme Court confirmed that where a claimant in nuisance uses their property for essentially the same purpose as that for which it has been used by their predecessors since before the alleged nuisance started, the defence of coming to the nuisance must fail. However, Lord Neuberger considered that there was "much more room for argument" where the claimant builds on, or changes the use of the property after the defendant has started the activity. The then President of the UK Supreme Court considered that it "may well be a defence" in some circumstances for a defendant to contend that a claimant should not be able to succeed in a claim where a defendant’s activity can be argued to be a nuisance only because of a change made by a claimant at their property. The Supreme Court did not need to rule on that point, but in any future case in which the same point is considered the Supreme Court judgement and the agent of change principle may provide greater support for the existing land use.

The advice in NPPF2 paragraph 182 may affect nuisance claims in another way. Following previous case law, the Supreme Court in Coventry v Lawrence found that the existence of a planning permission authorising a use of land does not, of itself, make the activities that generate complaints of nuisance lawful. However, the existence of a planning permission is not irrelevant. Lord Neuberger considered that a planning permission can have evidential value, with the extent depending on the facts of the case. In particular, conditions on a planning permission "may be of real value" where they set stipulations as to what the LPA considered to be an acceptable impact on others. 

What is next?

There is currently before Parliament the Private Members' 'Planning (Agent of Change) Bill 2017-19'. It had its first reading on 10 January 2018 and the second reading has been scheduled for 26 October 2018. While the bill documents have not yet been published it is stated that it is a bill to require specified planning controls in relation to developments likely to be affected by existing noise sources; and for connected purposes. As it is a Private Members' Bill under the Ten Minute Rule it is perhaps unlikely to make it onto the statute book. 

As this briefing has taken the example of residential development a few other aspects of NPPF2 are perhaps also worth noting here. NPPF2 does not require pre-application engagement to be undertaken, but includes an additional statement that planning performance agreements are likely to be needed for applications that are particularly large or complex to determine. It also provides that to help ensure that proposals for housing development are implemented in a timely manner, LPAs should consider imposing a planning condition providing that development must begin within a timescale shorter than the relevant default period, where this would expedite the development without threatening its deliverability or viability.

For a more detailed review of the broader issues arising from NPPF2 please see our commentary here