Amendment 266

Part of Levelling-up and Regeneration Bill - Committee (11th Day) – in the House of Lords at 4:00 pm on 24 April 2023.

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Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 4:00, 24 April 2023

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.