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Home > News > The Agent of Change Principle and its impact on UK development

The Agent of Change Principle and its impact on UK development

21 March 2017 |

The Agent of Change Principle has come a long way in other jurisdictions, including Australia. In the UK we are a little further behind with activists still pushing for the Principle to be adopted into our development control regime.

Given the above, a fair summary of the Principle would be that:

Reasonable expectations of existing land users are respected in Government and Local Government decision making relating to development.

I would suggest that begins with planning but also carries on through building regulations and ongoing regimes of regulatory compliance, such as alcohol and entertainment licensing.

How does the ideal of the Principle differ from the current situation?

The current regime is good (or good enough) at considering whether a new development will cause a nuisance to those around it. Noise, smell or more general undesirable impacts, such as issues of overlooking, all tend to be raised during the planning stage and, if not, most can be picked up at a later date through the appropriate monitoring and enforcement system.

What if newcomer produces no nuisance at all? There would be no need to condition the development or the use of the development to prevent existing land users from nuisance.  But what about other consequences of the potential grant?  How often do we hear that a proposed development will ‘breathe new life into the area’ or ‘regenerate the area’ or more simply, ‘redevelop the area’?  I’m sure we could all agree that these sound like a change in the nature of the area.  This is often seen as a good thing, with disused industrial areas finding a new life as “des res” in the heart of the city for instance.

That’s where the Principle comes in. They, who would effect the change, should bear the burden of the negative impact that their development will have on others regardless of what that impact is.  It is for the decision making process to identify this impact and protect against it.

So, that desirable refurbishment of an office building into apartments, that Councillors are often so keen to support, will now be placing sleeping (voting) residents in a situation where previously there wasn’t a soul to be seen after 8 pm.

The benefits for the area are clear: security and safety through occupancy. Drawbacks, well none save for the nightclub next door that’s taken advantage of the absence of sleeping residents to operate successfully for years.

As things stand, there is a risk that the planning process may leave it for Building Control to deal with and have nothing specific in the grant.

The Building Regulations 2010, Resistance to the passage of sound – Approved Document E tells us:

“Dwelling-houses, flats and rooms for residential purposes shall be designed and constructed in such a way that they provide reasonable resistance to sound from other parts of the same building and from adjoining buildings”

Interestingly, there is no mention of nearby buildings.

Levels of attenuation are detailed but not the resulting noise levels to be permitted in any specific accommodation when construction is complete. Document E goes on to state at Section O.8:

“A higher standard of sound insulation may be required between spaces used for normal domestic purposes and … non-domestic purposes… Specialist advice may be needed to determine the appropriate level”

So enjoy figuring that out with your Approved Inspector or Building Control Officer.

As to the consequences of a change in the nature of an area, let’s look at 2 case studies

Charity Nightclub

Picture this: a nightclub with 2300 capacity with an old-school style dance auditorium in a huge 2 story room with balcony surrounding the main dance-floor.

The nightclub operated in a theatre originally constructed circa 1920 and is directly attached to a terrace of houses. The houses were turned into offices in the 1970’s and the nightclub was established in the 2000’s.  As the offices were vacant from 7pm each evening until 8am next morning, it didn’t matter that the nightclub made a great deal of noise every night.

Everything went well for many years until a developer obtained planning permission for the terrace permitting change of use from office to residential. The planning permission contained no conditions that would guard against noise nuisance save for a requirement for triple-glazing in certain windows.  This was later removed as no noise left the nightclub in an airborne manner.  Unfortunately, a great deal of noise was transferred through the physical connection between the buildings, rendering some of the new homes, uninhabitable.  This was an inevitable consequence of the development.

The Council’s response was to serve an Abatement Notice [1] against the nightclub.  The long and short of the story is that, following my involvement on the part of the nightclub operator, the Abatement Notice was dealt with and the nightclub continued to (legally) make a great deal of noise resulting in 2 of the homes being rendered uninhabitable.

This caused the operator a great deal of distress and expense, while at the same time causing the developer substantial loss. Not a great example of how it should be done.

Compare the Above With the Ministry of Sound

One key difference with the above case is that the Ministry was not attached to the planned development. Remember that Approved Document E does not deal with noise transfer between unconnected buildings.

The listed benefits to the area, as proclaimed by the developer were huge.

This case ended up before Boris Johnson, the then Mayor of London. He approved the use of sealed windows and balconies as part of the new development, despite these being considered to be less than ideal in general terms. There was a balance to be struck between the need to provide a development of the highest quality possible and at the same time, protect the interests of the nearby noise-making business that had operated for many years.

Further, the planning permission contained conditions covering resulting noise levels in bedrooms. Additional security was provided through a Section 106 agreement ensuring no alterations were to be made to the superstructure of the building, where such would affect sound attenuation.

The benefits to the developer of this approach were certainty, reduced risk and reduced expense. Although that may not have seemed the case as the developer was moving through the planning process, imagine what would have happened if things had played out as they did in the first case study.

Where does that leave us?

So how far have we got in terms of the Principle being established in the UK?

Well, as I’ve said, there is a groundswell of support, given a boost by the Ministry case and in December 2015 the Labour government attempted to update the legislative framework to reflect this.

The pressure from the Ministry case led to an amendment to the Town and Country Planning (General Permitted Development) (England) Order 2015.

As you know, that is the little piece of secondary legislation that permits you to turn an office into a dwelling without planning permission.

The Order now states that development from office to dwellinghouses is permitted subject to the condition that prior to beginning the development, the developer must apply to the local planning authority for a determination as to whether prior approval will ne requires for impacts of noise from the commercial premises on the intended occupiers of the residential development.

So for now, the Principle only has a statutory (Statutory Instrument) footing when it comes to the implementation of permitted development rights. Still, that is no doubt just the start of things.

For more information on the topics discussed, get in touch with our licensing department on 0117 906 9400 or enquiries@gregglatchams.com

[1] Under the Environmental Protection Act 1990

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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