Baroness McIntosh of Pickering:

Moved by Baroness McIntosh of Pickering

266: After Clause 106, insert the following new Clause—““Agent of Change”: integration of new development with existing businesses and facilities(1) In this section—“agent of change principle” means the principle requiring planning policies and decisions to ensure that new development can be integrated effectively with existing businesses and community facilities so that those businesses and facilities do not have unreasonable restrictions placed on them as a result of developments permitted after they were established;“development” has the same meaning as in section 55 of TCPA 1990 (meaning of “development” and “new development”);“licensing functions” has the same meaning as in section 4(1) of the Licensing Act 2003 (general duties of licensing authorities);“provision of regulated entertainment” has the same meaning as in Schedule 1 to the Licensing Act 2003 (provision of regulated entertainment);“relevant authority” means a relevant planning authority within the meaning of section 84 of this Act, or a licensing authority within the meaning of section 3 of the Licensing Act 2003 (licensing authorities).(2) In exercising any functions under TCPA 1990 or any licensing functions concerning development which is or is likely to be affected by an existing business or facility, a relevant authority shall have special regard to the agent of change principle.(3) An application for development within the vicinity of any premises licensed for the provision of regulated entertainment shall contain, in addition to any relevant requirements of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I. 2015/595), a noise impact assessment. (4) In determining whether noise emitted by or from an existing business or community facility constitutes a nuisance to a residential development, the decision-maker shall have regard to—(a) the chronology of the introduction of the relevant noise source and the residential development, and(b) what steps have been taken by the developer to mitigate the entry of noise from the existing business or facility to the residential development.”

My Lords, I am delighted to speak to Amendment 266, in my name and those of the noble Baroness, Lady Henig, and the noble Lord, Lord Foster of Bath, and I am extremely grateful to them both for co-signing. The genesis of this amendment, on the “agent of change” principle, came from the post-legislative scrutiny of the Select Committee on the Licensing Act 2003, which I had the honour to chair, and on which I served with the noble Lords in question and the noble Lord, Lord Brooke of Alverthorpe, who I am delighted to see in his place this afternoon. We did a great deal of work, assisted by our then clerk, Michael Collon, and our specialist adviser, Sarah Clover, and I thank them for their help in drafting the amendment before us today. Latterly, we were delighted to work with Hannah Murdoch in the follow-up to that committee.

Like so many policies, planning is about trying to achieve a balance between alternative and potentially conflicting uses, and this lies at the heart of what we are trying to achieve in the amendment before us. Modern planning policies, both local and national, encourage the regeneration of urban centres and the reuse of brownfield sites, formerly known as previously developed land. This preserves our greenfield countryside sites, which include the green belt and are a diminishing resource.

Urban centres already contain industrial, business and cultural land uses, including the night-time economy. Many of these uses are noise generators or sources of noise. Many have been in situ for a long time and are not contained in buildings that are suitable for mitigating their sound output. The law of nuisance does not protect those pre-existing businesses from incoming noise-sensitive, typically residential development. It does not matter how long those original businesses have been there; on the contrary, the law of nuisance tends to curtail and limit the noise-generating land use—for example, in noisy businesses such as pubs and music venues—and protect the new occupants who have chosen to come and live nearby. The same is true for any type of nuisance, including overlooking, light and odour.

This modern change in the way we develop our urban spaces—for example, converting office space into residential units under committed development and such—represents a significant shift away from the assumptions of the regulatory regimes, including planning, licensing and environmental protection law. Those are based on noisy businesses being located in urban areas and residential areas being located in quiet suburban spaces, with residents commuting between them, but that is no longer suitable as we seek to limit unnecessary travel to preserve air quality, protect the climate and more. Indeed, that is why we sought to draw the planning and licensing regimes together and encourage them to work more closely—a fundamental recommendation of our original inquiry and follow-up report. Our current regulatory regimes do not adequately protect existing businesses and the night-time economy.

Those of us who served on the committee that looked at the Licensing Act 2003 are extremely mindful of the highly difficult circumstances experienced by the night-time economy and the hospitality sector during the Covid pandemic and, more recently, through the cost of living constraints and—if I may say so—the disruption caused by rail strikes.

The agent of change principle is designed to provide the protection we are seeking. The amendment clearly states that it is

“the principle requiring planning policies and decisions to ensure that new development can be integrated effectively with existing businesses and community facilities so that those businesses and facilities do not have unreasonable restrictions placed on them as a result of developments permitted after they were established”.

So far, the agent of change principle is represented only in policy. It appears in paragraph 187 of the National Planning Policy Framework and in paragraph 14.66 of the Secretary of State’s Section 182 licensing guidance in virtually identical terms, with the same definition of “agent of change” given there as in the proposed new Clause, which I have just rehearsed. In my view, we need to put those protections in primary legislation, and this Bill provides a useful opportunity to do so.

Policy protection in itself is not enough. Planning and licensing policies compete with each other in a balancing act, as I referred to earlier. The decision-maker on each occasion must place weight on the competing policies on a case-by-case basis. Some policies, such as the need for new housing, may be deemed to outweigh the need to protect existing businesses. It is an important part of the planning and licensing regulatory regimes to place restrictions on developers and land users by way of conditions and obligations that they would not otherwise voluntarily adopt. Developers, perhaps not unreasonably, seek to maximise profit. Enhanced mitigation in the new development to protect local businesses from having unreasonable restrictions placed on them will cost the developer more.

It is precisely for that reason that it is for the regulatory regimes to impose that where necessary. The imposition of appropriate conditions and obligations must come from primary legislation. The strength of policy guidance is not enough. By way of example, primary legislation provides appropriate levels of protections for our heritage assets—listed buildings and national monuments, among others. Developers and decision-makers have statutory duties set out in primary legislation to protect heritage assets in any development decision. The same level of statutory protection is now required for existing businesses, particularly hospitality and cultural venues, that are placed under increasing pressure from the intensification of residential use of urban centres.

The impact of new residential development on the night-time economy and cultural spaces cannot be overemphasised. The phenomenon of residential complaints about music and other noise resources, exasperated by the coronavirus lockdowns to which I referred, has increased exponentially. Long-standing pubs, clubs and music venues have closed in alarming numbers, often due to residential complaints and resulting local authority enforcement action. Therefore, the agent of change policies of themselves are not enough. Amendment 266 would enshrine the agent of change principle in primary legislation and impose clear duties on planning decision-makers and developers to take full account of the environment into which the development will be introduced. This need not necessarily act as a dampener to new development, but it will ensure that all land uses can be integrated harmoniously together from the outset.

This is by far the best time to address these issues, rather than months or years down the line when complaints begin to arise. Appropriate mitigation can be built into the new development to insulate it from noise or other impacts of its environment. If required, mitigation can also be added to the existing businesses. Effective steps can be taken at an early stage using the new statutory agent of change principle which we set out, to ensure that existing and new land use can be made compatible and allow both to continue and flourish without future conflict, in the interests of both residents and the economy. This represents a long-term saving to local authorities, who typically must mediate or enforce the conflict that arises, perhaps years later, from incompatible neighbouring land uses. It represents a vital protection for businesses, including valuable cultural and hospitality spaces that are a fundamental element of the vibrancy of local areas and communities.

-The proposed amendment has three parts to it. First, in proposed new subsection (2) there is the duty of the decision-maker to address the agent of change issues appropriately at the decision-making stage. Secondly, there is a duty upon a developer intending to build near a licensed premises to ensure that a noise assessment is produced as part of the application. Thirdly, there is a potential defence for an existing noisy business if complaints arise from the new residential development in circumstances where the agent of change principle was not appropriately observed in granting that development.

I hope that my noble friend the Minister and her department will look favourably on this amendment. I beg to move.

I am extremely pleased to support the noble Baroness, Lady McIntosh of Pickering, who introduced this amendment in, if I may say so, an extremely detailed speech, which means that I can be somewhat briefer. I think noble Lords will be pleased about that, because I have a dreadful cough which might manifest itself in the next five minutes. I apologise if it interrupts what I want to say.

I was a member of the committee that was so ably chaired by the noble Baroness, Lady McIntosh of Pickering, to carry out the post-legislative scrutiny of the Licensing Act 2003. There was an extremely strong team on that committee, quite apart from the chair and the House of Lords back-up team; Sarah Clover was an extremely helpful special adviser. I am grateful to Sarah for sharing with me her vast legal expertise on this topic, and for guiding me through the more arcane elements of this particular legal element.

The agent of change principle was one of the issues that came up during our proceedings. The Government professed themselves to be sympathetic to the problems being faced by the night-time economy. Indeed, their response to our recommendation that the agent of change principle should be adopted in both planning and licensing guidance was that they were consulting to see whether the agent of change principle should be emphasised by changes to the National Planning Policy Framework. That was in 2017; perhaps the Minister could tell me what the outcome of that consultation was, since the trail seems to have gone a little cold and I have not heard whether there has been any follow-up. I would be most grateful if perhaps the Minister could bring us up to date on that particular matter.

Now, of course, since 2017, the landscape has changed considerably for the worse as far as the night-time economy is concerned, as the noble Baroness, Lady McIntosh, quite rightly pointed out. It was decimated by Covid and is only just recovering from the impact. Along with the rest of the economy, the night-time economy faces critical staff shortages and considerable inflationary increases. Frankly, it needs all the help it can get. It needs the Government not to just pay lip service to helping the economy in these difficult times but to actually do something to assist.

This is one obvious way that the Government can help. Here is the Government’s opportunity to enshrine in primary legislation the agent of change principle, so that the interests of the night-time economy, local residents, and possible new local developments are all taken into account equably in planning decisions. It seems to me that that is a very important principle. Furthermore, it seems to me absolutely right, and very important, that this happens right at the outset of new developments, so that all interests at local level can be fully taken into account, difficulties can be pinpointed and ways to mitigate these difficulties can be identified early on.

Really, this is a very straightforward amendment to try to assist in the current process, and to improve it. Therefore, I commend it to the Minister as one which could bring great benefits up and down the country at, as far as I can see, hardly any cost. I very much hope it will be taken on board by the Government.

I will just add that the noble Baroness, Lady McIntosh, and I have some form in putting forward amendments which are then taken on by the Government and presented subsequently as government amendments. I am therefore extremely hopeful that this might happen in relation to this very constructive and helpful amendment, and I commend it to the Minister.

My Lords, I too served on your Lordships’ Select Committee on licensing in 2017, and on the subsequent follow-up committee. I join with the noble Baroness, Lady Henig, in heaping praise on the absolutely able chairmanship of the noble Baroness, Lady McIntosh of Pickering. As we have heard, both committees concluded that it was important to incorporate the agent of change principle in planning policy and guidance.

In case anybody is in any doubt what this means, the agent of change principle ensures that a new development must shoulder responsibility for compliance when situated near, for example, an existing music venue. Similarly, if a music venue opens in an existing residential area, it would be responsible for complying with residential requirements to minimise nuisance. For example, based on this principle, an apartment block built near an established music venue would have to pay for soundproofing, while a live music venue opening in an existing residential area would be responsible for the cost of soundproofing.

The committee was therefore very pleased that the Government agreed that the agent of change principle should be reflected in the National Planning Policy Framework and in Section 182 guidance. That has now happened. However, the follow-up committee heard that the principle as it stands, reflected in those documents, does not sufficiently explain the duties of all parties involved. The committee argued that the principle needs to go further to protect licensed premises and local residents in our changing high streets, and that a lack of consistency between the planning and licensing systems—something that it believed needed to be changed anyway—has led to, for example, live venues not being guaranteed to be protected. I will give two quick examples.

The Night & Day Café is a live music venue in Manchester’s Northern Quarter. It opened in 1991 and is the venue that launched the careers of, for example, Elbow and Arctic Monkeys. In November 2021, the venue was served with a noise abatement notice from Manchester City Council. This followed ongoing complaints from local residents who had moved into a new development—warehouses converted into flats—during the Covid pandemic when the venue was temporarily closed. The case provoked a huge degree of interest. Some 94,000 people have signed a petition asking for the notice to be withdrawn, with one signatory describing the situation as

“like moving to Leicester Square and complaining about there being too many cinemas”.

Night & Day Café’s appeal over the order has been adjourned until later this year. It has still not been resolved.

The Jago is a venue in Dalston that hosts live music events, screenings and workshops. It is registered as an asset of community value and is very highly regarded in the local area. It has hosted musicians for almost two decades, but since the pandemic many surrounding buildings have been converted into residential properties, which has led to an increase in noise complaints and, in June 2022, it received a noise abatement notice. It too has been the subject of a petition trying to help, with over 2,500 signatures. Again, its problem has not yet been resolved.

The committee recommended that, to resolve issues such as these, the Government should review and strengthen the agent of change principle and consider incorporating it into the current planning reforms in the Levelling-up and Regeneration Bill. The Government did not disagree, and themselves pointed to the then upcoming Levelling-Up and Regeneration Bill as a vehicle to address these concerns. This amendment is simply by way of helping the Government achieve what they agreed was needed: greater clarity about what is expected of councils and businesses. In that light, I hope the Minister will see that the amendment is designed to support and help the Government. I hope she too will support it.

My Lords, I am grateful to the noble Baroness for moving the amendment and to others who have spoken. I too was a member of the original committee, although not the follow-up committee. It is amazing to look at how life has changed so quickly since the report in 2017 and the subsequent report. Since then we have had the pandemic and a whole new experience of living in a different world entirely, including a different world of work, from what we had in the past.

Leaving aside nightlife, look at what is happening with online trading and with the high street. When one wanders around Oxford Street one sees quite large premises now empty and not being used. The Strand has been transformed completely from what it was like 20 years ago. Companies that had been there for almost a century and a half have disappeared, yet the properties remain empty. What will happen to them? Without any doubt, if they fail to get commercial operatives they will be converted into residential premises in due course.

The issue that we have before us—leaving aside the nightlife—is one that was going to confront the Government anyway. I believe they have still not come to terms with the fact—I am not sure whether my party has—that the party that tells people they can work from home at least two, three or four days a week is going to get the votes of workers in this country. They do not want to travel, with all the inconvenience that goes along with it. They do not want to be in the city centre, with all the pressures. They want to be working at home, close to their families, and to have greater freedom and control of their lives. That is going to happen, particularly as we start moving into the metaverse and the completely different way of working that comes with that. That has a knock-on effect on accommodation, with changes at home for people to work there and, more particularly, with what happens to empty offices and the nightlife that takes place around them.

The present arrangements are far from suitable for dealing with changing circumstances. For example, if something else came along quite unexpectedly, like Covid-19 did, we could again see massive changes taking place in a very short space of time, when we have not even coped with the knock-on effects from the last change. I hope the Government are going to be reasonable this time around. This is a reasonable amendment that should not be lightly dismissed or ignored in the way that it has been previously.

My Lords, the noble Lord, Lord Brooke of Alverthorpe, raises a matter which concerns me. I congratulate the noble Baroness, Lady Pickering, on this amendment. I am not, and never have been, a member of the licensing committee, but I am bound to admit that I have enjoyed many of the venues that are facilitated by the licensing process.

My example is a little different, because this is not just a matter of licensing. It concerns the 24/7 use of an urban industrial area not very far from one of London’s major international airports—hence it is 24/7. It is an older industrial estate that had been subject to periodic, sporadic, upgrades of buildings. However, the local authority, in its infinite wisdom, gave consent for a piece of land on the edge of this industrial area, which I think had previously been residential back gardens, to be used for a residential development. This triggered a change of policy within the local authority, such that every time somebody wanted to do anything on the industrial estate—change a roller shutter door, have a better loading canopy or something like that—an hours of work restriction would be imposed, so preventing it being used 24/7. I challenged a local elected member on this, who was unaware of what his council had done and what the implications were.

I accept that that is a different situation from what one might call the shared space of a town centre, but I think it is relevant that we have—sorry to use the awful phrase—joined-up policies in relation to all these things, unless we want situations happening on our high streets such as those to which the noble Lord, Lord Brooke of Alverthorpe, referred to. Later on, we will get to what happens with vacant properties in high streets when—when—we get to the group that is currently number 28 on the Marshalled List before your Lordships. My Amendment 426 in that group is on this issue.

One other issue is what we might call the administrative framework aspect of all this. I think of circumstances to do with the way in which local government or contractors organise such things as waste collection from premises in urban centres; refuse collectors can turn up in the small hours of the morning and cause disruption. I wonder whether we are not sometimes making a rod for our own backs by not thinking ahead about how we organise these things. Some are displaced by concepts such as core time servicing and other such matters relating to our town centres. There tend to be rather individual, single-issue decisions, without looking forwards, backwards or sideways.

I offer a word of caution to the noble Baroness, Lady McIntosh of Pickering, on the wording “can be integrated” in the amendment. The phrase “can be integrated” does not necessarily mean that a new development will be integrated. I interpret “can” as facilitative, “will” as something more demonstrative. If the administrative rollout is subject to all manner of change going forward, without a statement of principles and constant monitoring of the unfolding process, we may end up with decisions made on a “moment in time” principle rather than having the dynamic under constant review and consideration.

There is obviously a resource implication here but, unless we do this, as the noble Lord, Lord Brooke of Alverthorpe, says—given what has happened in just the last few years and post Covid, with the changes in demand, journeys to work and work-life balance—we will not be anywhere near ahead of the curve in getting this right. Other than that, I strongly support the principle of this amendment; I think it a really worthwhile amendment for consideration by your Lordships.

My Lords, this has been an interesting debate; I thank the noble Baroness, Lady McIntosh of Pickering, for bringing it forward. I also thank the licensing committee and its members for their considerable work on this. Listening to the debate, one thing that comes over very clearly is that it is time to review the status and look at the current situation. As the noble Baroness, Lady McIntosh, said, we now have the change of use from office to residential space in town centres, and my noble friend talked about the many empty town centre premises. There will be a lot of change in ways that we have not seen before and new challenges, especially for the night-time economy, as has been discussed.

As I said, the agent of change principle has been with us for some years now, which, again, is why it is time to look at this. We know that it is in the National Planning Policy Framework, but what strikes me from the debate is the question of whether it is fit for purpose. I have a number of questions for the Minister following on from this. Is the agent of change principle having a meaningful impact at the moment? Does the licensing guidance reflect the principles in the NPPF itself? We need to ensure that the NPPF is fit for purpose, as well as the agent of change principle within it. The question on my mind is: will the NPPF, when we get to see it, reflect the likely focus of future planning decisions? How will it all fit together?

As my noble friend Lady Henig said, this is an opportunity to enshrine this principle in legislation. We need to make sure that we get this right—that it is fit for purpose and does what it is supposed to do: work to protect both sides. It is important that the Minister is able to assure us on that matter.

My noble friend Lady Henig also asked about the current status of the consultation that took place in 2017 on the housing White Paper in relation to this issue. Not to have heard back from that consultation in 2017, six years ago, is a bit concerning. Since then, as my noble friend Lord Brooke mentioned, we have had the pandemic and so much has changed, so is that consultation even still relevant? Perhaps the Government need to revisit that completely. I would appreciate the Minister taking that back to her department.

My Lords, Amendment 266, tabled by my noble friend Lady McIntosh of Pickering, tackles the important issue of the agent of change principle in planning and licensing—that is, the principle that existing businesses should not be negatively affected by restrictions on them resulting from new development in their area. National policies and guidance already provide strong support for that principle, and we will continue to make sure that authorities have the tools needed to deliver it. The Government therefore do not consider the amendment necessary.

I agree with my noble friend that preventing this happening is important to so many businesses, especially in the night-time economy, where these issues most regularly occur. That is why we amended the National Planning Policy Framework in 2018 to embed these principles, with paragraph 187 of the current framework saying:

“Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established”.

In answer to the noble Baronesses, Lady Henig and Lady Hayman of Ullock, that came after the consultation, so it was partly a response to it. The framework goes on to highlight that, where there could be “a significant adverse effect”, the onus should be put on the agent of change proposing the new development to provide suitable mitigation before it has been completed.

We are also introducing national development management policies through the Bill. In future, and subject to further appropriate consultation, these will allow us to give important national planning policy protections statutory weight in planning decisions for the first time.

We believe that the proposed requirement for a noise impact assessment to be undertaken for relevant development would duplicate existing guidance for local planning authorities. Planning practice guidance published by the department is clear that the agent of change will need to clearly identify the effects of existing businesses that may cause a nuisance to future residents or users of the development proposed.

The guidance also sets out that the agent of change is expected to define clearly any mitigation that is proposed to address any potential significant adverse effects, in order to try to prevent future complaints from new residents or users. Many local planning authorities also make this assessment of effects a part of their local lists of information required to be submitted alongside relevant planning applications. After such assessment of the effects, reasonable planning conditions can be used to make sure that any mitigation by the agent of change is completed, as agreed with the local planning authority when planning permission is granted.

Importantly, the Government agree that co-ordination between the planning and licensing regimes is crucial to protect those businesses in practice. This is why in December 2022 the Home Office published a revised version of its guidance, made under Section 182 of the Licensing Act 2003, cross-referencing the relevant section of the National Planning Policy Framework for the first time. Combined with our wider changes in the Bill, we will make sure that our policy results in better protections for these businesses and delivers on the agent of change principle in practice.

I hope I have demonstrated that the Government’s policies embed the agent of change principle and that we will continue to make sure it is reflected in planning and licensing decisions in future.

My Lords, I am grateful to all who have spoken in this debate, particularly those who gave their strong support to this amendment. A number of questions were raised, in particular by the noble Baroness, Lady Hayman of Ullock, which have not necessarily been answered in the debate. The noble Baroness, Lady Henig, and the noble Lords, Lord Foster and Lord Brooke of Alverthorpe, have stated why, in the Committee’s view, it is very clear that this amendment is needed. As I tried to explain to my noble friend, the policies and planning guidance on their own are not sufficient. So I would like to go back and discuss with those who have spoken whether there is cross-party support for bringing this forward at a later stage—but, for now, I beg leave to withdraw the amendment.

Amendment 266 withdrawn.