Legal advice: Hope for pubs in noise debate

You cannot complain to the sellers if you did not know that a sewage plant, wind farm or pub was right next door to you, yet the same level of protection is not afforded to the operator of a business licensed under the Licensing Act 2003. It has always been the case that there has been no principle in licensing law that residents should not be able to review a premises licence if they have “come to a nuisance”.

We have recently written articles on the ‘agent of change’ principle, that developments such as new blocks of flats should be constructed in order to take account of businesses in the immediate area — for example, nightclubs and late-night licence venues.

We have also recently dealt with the case of Koko nightclub in Camden, London, which won a significant victory in the High Court when Judge Mr Justice Stewart quashed the grant of planning permission on the basis that councillors had not been made aware of the impact that the new residential development would have on the existing night-club business.

Koko had started life as the Camden Theatre but became a music venue in the 1970s and so had been an established live music venue for more than 40 years. Other live music venues in central London such as Madame Jo Jo’s, the Astoria, Purple Turtle and the Stillery have not been so fortunate, closing partly as a result of large-scale developments on their doorsteps.

There has, however, now been another significant development in terms of planning with the Lord Mayor of London having issued his draft supplementary planning guidance on 7 October, which sets out the aims and objectives for protecting and enhancing established cultural and entertainment uses in London’s central activity zone.

This protection for licensed premises includes protection from new residential developments that may give rise to future complaints. The guidance is currently out for consultation with a deadline for representations being 8 December 2015.

The most pertinent paragraphs of the guidance can be found at paragraphs 2.2.9 to 2.2.17.

The guidance recognises that residential developments can enhance the mixed use character of areas, but such developments do need to be managed “sensitively in locations like the West End to ensure that residential uses do not predominate or strategically constrain the varied mix of commercial, cultural, entertainment, leisure and evening activities in the area”.

The guidance goes on to recognise that Covent Garden and Soho contain the country’s largest concentration of evening activities within the central activities zone and it also suggests that, in Covent Garden, Soho and other strategic clusters within the central activities zone, the location, layout and design of residential developments should be complementary to strategic, cultural and evening activities and mixed use character of the central activities zone.

In paragraph 2.2.10, the guidance recognises that there has been a significant decline in the number of live music venues in London with only 51% of ‘grassroots music venues’, which were opened in 2007 remaining open in 2015.

Refreshingly, at paragraph 2.2.11 the guidance suggests that any land use and development should be designed in ways that ensure “established cultural venues remain viable and be continued in their present form without the prospect of neighbour complaints, licensing restrictions or the threat of closure”.

The guidance suggests that matters such as acoustic design ensure effective sound insulation into any such developments. In some sections, it only refers to “theatres, concert halls and live music venues” but the principle should be taken forward in respect of any late-night licensed venue which pre-exists new residential developments.

It is important for operators to embrace the guidance and to support its principles by making representations by 8 December 2015.

In short, no reliance can be placed upon the licensing regime to protect existing businesses but as the guidance so succinctly puts it at paragraph 2.2.10, “while there are a number of reasons for music venues and pubs closing, the planning system can provide more effective and practical support to help sustain these uses where they remain viable”.

There remains hope through the planning regime, despite the licensing route lacking teeth for now.