Lawyers generally hate unique solutions. No-one wants to be at the bleeding edge.
But there are some planning issues that now demand legal innovation. Cities are evolving at a great pace. More people are moving into areas that were traditionally business and leisure locations. And this is creating tensions between neighbours.
Planning has always taken a pretty laissez faire attitude to these potential battles. It is taken as a self evident truth that there is no right to a view. It gives little weight to the disruption caused by building projects. It rarely refuses consent because of the existing noise environment, despite the risk that new residents might complain. This then jeopardises the businesses who create noise and activity. As new residents move in they complain. Even though the noise levels were acceptable for planning purposes they can still be a nuisance and lead to existing businesses being shut down.
In any sensible regime the grant of planning consent would set a higher threshold before granting consent and the grant of consent would then provide protection for existing uses — after all, new residents have moved to the problem. Unhappily in the real world this does not happen; hence the need for a unique solution.
The Ministry of Sound nightclub at the Elephant & Castle is the type of use that provides character in an area. When faced with a new residential development opposite the club, Ministry was understandably concerned that the development would lead to future complaints that would inhibit their operations. Acting for the developer we agreed to grant an easement to Ministry to allow them the legal right for noise to pass through the development site. Anyone moving into the new scheme will be aware that they have accepted certain noise levels. If they still make complaints then the local authority will be aware that the resident has already “given up” their rights and that should then influence their response to the complaint.
This is the first occasion that we know of that the mechanism has been used. Hopefully that will give others the confidence to offer the same protection and help to preserve the variety and vibrancy that makes our urban areas attractive places to live.