Bristol is currently undergoing significant urban regeneration at the Temple Quarter – with potentially 11,000 new homes and 22,000 new jobs to be generated over the next 25 years. However, at the heart of this area is Motion, a renowned nightclub. The challenge for the planning system is balancing residents rights to peacefully enjoy their new homes and the club’s right to operate.

Motion is seeking a legal agreement called a deed of easement. An easement is a right to do something – in this case, the right to make a certain level of noise. The deed of easement would also require developers to ensure that future residents are made aware of the nightclub and prohibit complaints so long as the club is operating within its licence conditions. Importantly, such an agreement would seek to prevent nuisance claims, thereby ensuring that the club can continue to operate in its current form.

The concept of a deed of easement for noise is relatively new, but it does have a precedent. In 2014, a deed of easement of noise was agreed by the Ministry of Sound. The deed gives the Ministry of Sound the right to make noise at the existing levels and limits the scope for new residents to object to noise made up to this threshold.

Since the Ministry of Sound case, the National Planning Policy Framework (NPPF) has been updated. Since July 2018, paragraph 182 of the NPPF requires that:

Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them 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.”

 This is known as the Agent of Change principle. Responsibility for noise management is on the incoming individual or business (in this example, the residents of the new development) rather than the existing business.

Arguably if adequate mitigation is in place, there should be no need for deeds of easement for noise in a planning context. However, the fact that businesses such as Motion are still seeking these legal agreements suggests that concerns remain for business operators. Ultimately, both deeds of easement for noise and the introduction of the agent of change principle are relatively new concepts to the planning system both of which are largely untested in the courts.

It will be interesting to see how these two concepts are taken forward by businesses, the planning regime and the courts moving forwards.