How the mayor of London is mooting a new 'agent of change' rule to protect entertainment venues

Sadiq Khan has responded to fears about the effect of residential developments on a West End Cinema by proposing changes to safeguard venues against nuisance claims.

At risk: Mayfair’s 82-year-old cinema is facing demands to cover the cost of soundproofing for new neighbours
At risk: Mayfair’s 82-year-old cinema is facing demands to cover the cost of soundproofing for new neighbours

Last week London mayor Sadiq Khan put a statement on Facebook that was a big hit with those running entertainment venues across the capital. Responding to concerns that the future of the Curzon Mayfair cinema in Westminster was being put at risk by demands from the developer of neighbouring flats that the cinema pay for soundproofing, he confirmed his intention to institute a so-called "agent of change" rule into the London Plan.

Campaigners for the rule say it would ensure that responsibility for any soundproofing necessary to protect residents from noise would fall to the organisation that is changing the status quo – whether that be a housebuilder erecting flats next to an existing music venue, or a developer building a music venue in a residential area.

Curzon director of cinema development Rob Kenney understandably welcomed the intervention. "We’ve fought a number of times to save our cinemas and hopefully what Sadiq Khan is doing will short-cut the process," he said. "There’s got to be some protection of London’s cultural life." The issue is stark.

A "rescue plan" commissioned by former mayor Boris Johnson found last year that licence restrictions following residential development around "grassroots music venues" was one of the principle reasons behind a 35 per cent decline in small venues in London since 2007. A 140-year-old legal precedent means that even if a noise-making activity predates the arrival of nearby residents, there is no necessary right to continue to make the same level of noise when complaints arise. However, the agent of change rule would only become a primary planning consideration once London boroughs incorporate it into their local plans, although it will have significant planning weight once the London Plan update is adopted.

It is also unclear what difference it would make. The impact of existing music venues is already a material consideration in planning decisions, with developers expected to pay to mitigate the effects. Many boroughs, including Westminster, already have de facto agent of change principles in their plans. But Lorraine Hughes, a director at consultancy Turley, said the new rule could see authorities expect "greater mitigation than they otherwise would, and more consideration of design".

A recent case involving east London venue The George highlighted this. Owner Pauline Forster lost her appeal against a neighbouring housing development in June, despite her case that residents of the soundproofed new scheme were likely to complain when their windows were open. Her barrister, Annabel Graham Paul of Francis Taylor Building, argued that the venue risked "falling into a void" between the planning, legal and licensing regimes. She told Planning the rule wouldn’t have helped, saying the policy sounded like "all talk".

Tim Taylor, partner and head of planning at law firm Foot Anstey, who acted for the Ministry of Sound nightclub in a long-running tussle with the developer of a neighbouring plot, said their solution – the signing of a legal "deed of easement" with the developer guaranteeing no complaints unless sounds levels increased – would need to be incorporated into the London Plan to make the new rule effective. "You don’t save venues by chucking money at them for noise abatement, you do it by offering them full legal protection," he said.

Michael Dempsey, senior associate at law firm Berwin Leighton Paisner, said another solution would be a presumption against permission unless the developer could find a way to prove residents wouldn’t threaten the licence. He said: "It’ll come down to what they really mean by agent of change. The phrase has been picked up a lot but it’s what it really means that’s important."

These options, of course, could have implications for developers, potentially making housing development unattractive or unviable. Richard Evans, associate at consultants WYG, said: "A balance needs to be applied. Technical specifications to soundproof residential units do come at a cost, which affects scheme viability."

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