Agents of change

While demand for housing remains high, it can seem that suitable sites are becoming ever scarcer, and developers are exploring ever-more constrained sites. These constraints take many forms. Increasingly, they include locating residential or other “sensitive” uses near to uses often considered antisocial. Historically this has led to conflict – residents do not want to deal with the consequences of living near a nightclub or factory, and their complaints have caused operational issues for businesses in existence long before the residential uses arrived. But recently, the ability of residential uses to trump pre-existing uses and cause the sterilisation of once vibrant areas has been challenged as inappropriate. In response, planning policy has evolved to offer protection to pre-existing uses via the “agent of change” principle. Here we explore the relevant national planning policy and how it affects both existing businesses and those looking to introduce new sensitive uses. What is the agent of change principle? The National Planning Policy Framework is clear that both planning policy and decisions should ensure new development can be integrated with existing businesses and community facilities. These would include places of worship, pubs, music venues and sports clubs, which could have a range of impacts on neighbouring uses such as noise, smells and parking challenges. The policy adds that existing businesses and facilities should not have unreasonable restrictions placed on them as a result of new uses, permitted after the original use was established. If the operation of the existing business could have a significant adverse effect on new development, the applicant for that new use – being the “agent of change” – should be required to provide mitigation before their development is completed. How does this interact with the push to co-locate residential uses with industrial and similar uses? The agent of change principle is an important corollary of the policy push towards co-location seen in many places. Historically there has been a tendency to segregate different types of use and, while sensitive uses such as residential would be mixed with some secondary uses to serve residents, such as a small amount of retail, other uses, including industrial, were kept distinctly separate. In a number of urban locations that is now changing, reflecting the need to be creative in how we accommodate the additional homes the country needs. In the past, the voice of residents often drowned out that of businesses and their operators, giving homeowners disproportionate power to change the character of an area. It is easy to understand people not wanting to live next to a nightclub. But if the nightclub was there long before the homes – and those residents chose to move to the area – is it right that they can dictate the range of acceptable uses? Further, as the areas of land needed for housing expand, is it right that this causes areas for other, often important, uses to shrink? It is this balance that the agent of change principle seeks to establish. What should residential developers be mindful of? All successful residential accommodation needs good residential amenity. How this – and compliance with both agent of change and amenity policies – is achieved will depend on the nature of uses juxtaposed. That means assessing the baseline position and taking appropriate steps to insulate new occupiers against any negative impacts from surrounding properties – not expecting existing uses to adapt for new homes. Does that prevent future occupiers complaining about pre-existing uses? It is not that simple. Appropriate measures should be secured by planning condition to mitigate the impacts of existing uses on new occupiers. However, even where all required mitigation is provided, there can be conflict between co-located uses. Individual residents may have expectations for their amenity which exceed what is required by planning policy, or may simply not like co-existing with the relevant use. The original use may also intensify, meaning the steps taken to mitigate harm cease to be adequate. If I operate a noisy use, how should I protect myself? You should be alert to planning applications in the local area and, where there could be conflict, ensure not only that appropriate representations are made, but that the local planning authority appreciates both the importance of the existing use and the potential conflict if appropriate conditions are not imposed on the proposed development. These planning conditions should specify detailed measures which should be taken to achieve quantifiable results, making it clear that it is for the new developer to achieve levels of amenity impact, such as noise, which it is reasonable for its occupiers to experience – instead of it being on you to decrease the noise generated. Does this mean residential uses are no longer a threat to these uses? Again, it is not quite that simple. If conditions are attached to new planning permissions, they can only prevent conflict where they are complied with. Failure either to install or maintain required mitigation measures, such as sound-proofing or mechanical ventilation, means that conflict between uses can still arise. Even where that is not the case, if the developer has underestimated the potential impacts of the existing use, the mitigation secured may prove inadequate. Does the policy only apply when residential uses are introduced to an area? No. The policy applies whenever a new use is introduced which may conflict with existing uses. For instance, it could include seeking consent for a new music venue in an area where residential uses are becoming established. At its heart, the policy is about ensuring any new use adapts to the needs of existing uses, instead of imposing itself and demanding a change in the area. Hannah Quarterman is a partner and head of planning at Hogan Lovells Photo © Jon Tyson/Unsplash