The ‘agent of change principle’ captures the idea that those introducing a change in the use of land should manage the impact of that change. This principle was incorporated in the National Planning Policy Framework (NPPF) when it was revised in July 2018. Recent case law illustrates the importance of addressing that principle in planning decision-making. Whilst the NPPF had not been revised by the time the planning decisions in question had been made, the Court has had to grapple with the concept in its former guise within the original NPPF published in 2012.
The case law highlights the need for local authorities to have regard to national planning policy and Planning Practice Guidance (PPG) when making planning decisions. It also emphasises the importance of preventing situations arising, as a result of introducing noise-sensitive developments, of prohibitive restrictions being placed on existing noise-generating premises.
Challenges to planning decisions
In December 2018, the High Court quashed retrospective planning permission that Richmondshire District Council granted to regularise the change of use of a barn to a dwelling. This followed a successful challenge in July 2018 to the decision of Herefordshire Council to approve reserved matters including the layout of a proposed housing development adjacent to a cheese factory.
What were the key points from the challenge to Richmondshire’s decision?
Cemex (UK Operations) Ltd v Richmondshire District & Anor [2018] EWHC 3526 (Admin) was the first case to consider the agent of change principle, following the principle’s incorporation into the revised NPPF (although the 2012 NPPF was in force when the application concerned was being considered). Cemex operated a limestone quarry and asphalt road stone coating plant. The Council had granted retrospective planning permission to regularise the change of use of a barn 60 metres from the site to a residential dwelling.
Paragraph 123 of the 2012 NPPF provided that that planning policies and decisions should aim to:
- avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of a new development
- recognise that development will often create some noise and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established.
'Significant observed adverse effect level’ is defined in the PPG on noise as '….the level of noise exposure above which significant adverse effects on health and quality-of-life occur'. The PPG on noise also states that above the significant observed adverse effect level, 'noise causes a material change in behaviour such as keeping windows closed for most of the time' and that 'the planning process should be used to avoid this effect occurring, by use of appropriate mitigation such as by altering the design and layout' of a proposed development.
During determination of the planning application, a noise assessment was undertaken which showed that the levels of noise far exceeded the threshold for the significant observed adverse effect level. The Council granted planning permission and relied on a condition requiring the removal or blocking up of trickle vents in certain bedroom windows in the property to ensure a satisfactory noise environment. The 'informative' on the planning permission stated that 'By using a combination of glazing and ventilation to the property, guideline internal noise levels in accordance with BS 8233:2014 "Guidance on sound insulation and noise reduction from buildings" [could] be achieved with windows closed…'
The Court held that the Council had failed to have regard to the PPG and failed to secure all the mitigation measures recommended in the noise assessment. Further, the Council’s environmental health officer (and, through her, the Council) had failed to consider the likelihood of restrictive conditions being placed on Cemex’s operations as part of a future review of minerals permission. Planning permission for the barn was quashed.
What happened in the challenge to Herefordshire’s decision?
Oruna Ingredients Ltd was the operator of an industrial cheese factory. Herefordshire Council granted a reserved matter approval for the layout of a proposed residential scheme, adjacent to the factory. In R (oao Ornua Ingredients Ltd) v. Herefordshire Council [2018] Oruna successfully argued that the Council had failed to take into account material considerations when granting planning permission for the housing development. These considerations included a report by acoustic engineers. The report indicated that it might not be possible to produce a scheme for mitigating noise emitted by the factory to acceptable levels at houses built in the proposed layout. This case, itself, did not reference planning policy, but illustrates the importance of designing new developments in a way that minimises noise complaints that could lead to prohibitive restrictions being placed on existing operators.
How does this relate to the agent of change principle?
Paragraph 123 of the 2012 NPPF has essentially evolved to encapsulate the agent of change principle now set out in the revised NPPF. Paragraph 182 states 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 means that planning authorities have to take into account the use of an area before a new development is introduced, and any adverse effects that existing developments may have on the new development. The ‘agent of change’ will then have to take action - sometimes in collaboration with the existing development - to reduce any potential adverse effects that the new development may suffer. These mitigation measures may form part of the conditions of granting planning permission for the new development. However, it is clear that relying on windows being kept shut will not be considered satisfactory mitigation.
Burges Salmon works with developers, local authorities and landowners on all aspects of planning law. This includes helping ensure local authorities make robust planning decisions as well as helping those looking to challenge planning decisions.
If you have any queries relating to issues raised in this article or planning more generally, please contact Gary Soloman.