PLANNING AFTER DARK: PAUL SHUKER, DIRECTOR, WYG

THE GOLDEN EGG…

• Venues are historically seed beds for new musical talent (i.e. Adele, David Bowie, Sex Pistols)

• Clubs and live music venues give cities energy and creativity – UK house music wouldn’t have existed without the Hacienda and Sanky Soaps in Manchester (now blocks of apartments)

• The night time economy (NTE) contributes to UK’s financial prosperity – worth £66bn and 6% of GDP (Night Time Industries Association)

• British Retail Consortium and Springboard: NTE gives High Streets much needed footfall boost

KILLING THE GOOSE

• BUT current failure to achieve balance of town centre risks killing goose that lays golden egg- what makes our cities and towns exciting and attractive

• London alone has 103 fewer nightclubs and live music venues than in 2007, a decline of almost a third. It has lost 25% of its pubs since 2001

“The business case for the night time economy is obvious. It brings a staggering £26.3bn to London’s economy every year. It employs one in eight people in our city too.”

Culture and the night time economy, Supplementary Planning Guidance, Mayor of London, April 2017

WHAT’S GONE WRONG?

• Growing population in cities such as London and Manchester;

• Housing shortage driving up prices;

• Rising property values mean rising business rates;

• Costs of licensing conditions, health & safety and policing;

• Grassroots venues suffer;

• Planning policy slow to adjust to new reality BUT new London Draft SPG paving the way;

• Policy vacuum that doesn’t recognise the economic, cultural and social benefit of Evening Economy?

• Planning system used as a mechanism by third parties to object rather than using other property laws.

THE RESPONSE…..

PLANNING AND LICENSING –DUPLICATION?

Currently: Paragraph 122 of the NPPF says:

“…LPAs should focus on whether the development itself is an acceptable use of land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. LPAs should assume that these regimes will operate effectively. Equally where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities”

And Paragraph 123:“existing…...business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established”

UK Licensing Laws: prevent crime, promote public safety, protect children from harm and prevent public nuisance; controlling the sale of alcohol; providing regulated entertainment; nightclubs, cinemas, large theatres, music venues, indoor sporting arenas, selling of hot food at night.

What we need: Twin tracking – see the planning and waste sectors

CASE STUDY: NORTH WEST REGION NTE POLICY

• NTE Policy Vacuum

• Manchester City Council NTE Policy (C10) very positive, but consider externalities such as concentration of uses, residential amenity and balance of day and night time economies not to undermine primary shopping areas;

• Lancaster City Council NTE Policy (DM5) supports sustainable growth in NTE subject to considerations;

• No separate SPGs on NTE;

• Greater Manchester Spatial Framework SL2 (6)

• Bury Evening Economy Action Plan.

CASE STUDY: NIGHTCLUB, SURREY

Provincial market town Location

• Principal town within the Borough

• Good transport links – easy walking distance of railway station, bus and taxi ranks

• Flatted developments, postdating nightclub use, introduced into general vicinity

• Nightclub premises within town centre, at far end of covered shopping mall

Appropriate main town centre use Planning context

• NPPF Annex 2 – Nightclubs identified as ‘main town centre uses’

• Adopted Local Plan silent on nightclub uses but site within identified town centre

• Draft Local Plan, emerging at time of case, seeking 'family friendly’ ‘cultural’ uses in town centre

Long established lawful nightclub use Planning History of the Use

•Over time use evolved into a nightclub only, sui generis use, operating until the early hours of the morning. Had operated in this way for a continuous period of more than 10 years

•Originally A3/A4 use - café, bar and restaurant with dancing - permitted in the 1990’s with no conditions imposed on hours

CASE STUDY: NIGHTCLUB, SURREY

Permitted late night /early morning hours until 3 am following day Premises Licence

• Previous nightclub operator went into administration

• Premises underwent internal refurbishment – LPA view that this constituted gap in operations

• New Operator secured Premises Licence on same basis with hours until 3am following day

• Subsequent Magistrates Court Hearing – Premises Licence retained – no case to remove

Extensive, unnecessary and costly applications and enforcement appeal Planning actions required

•Submit planning application for continued use - Application withdrawn after LPA refusal recommendation on basis of noise and disturbance at unsocial hours because operator would not accept condition restricting terminal hour to 1 am

•Submit certificate of lawfulness to demonstrate 10 years continuous operation – Application refused by LPA, in consultation with local Police, on basis of: material gap in operation; did not agree that premises had operated as a nightclub for 10 years; or that it had operated until 3am

• Lodge appeal against subsequent Enforcement Notice – Remedial actions in effect allowed the use but sought to restrict terminal hour, location and scale of smoking area.

•Public Inquiry – Appellant’s case included demonstrating good management practice including operation of smoking area and queueing system

CASE STUDY: NIGHTCLUB, SURREY

• Public Inquiry was terminated on first day. LPA offered to vary Enforcement Notice to allow terminal hours that had been operating consistent with the Premises Licence, agree numbers of persons in smoking area that Operator required and paid Operator’s costs

• The remedial matters could have been adequately dealt with under the licensing regime in this case

LPA attempted approach in this case

• To eradicate nightclub use by making operation unviable through imposition of unreasonable conditions on the terminal hour

• To eradicate nightclub use using planning and enforcement powers by challenging its lawfulness

• To impose planning controls over matters more properly falling within the remit of the licensing regime

Recommended LPA approach

• Place value on the social and economic benefits of a variety of night-time uses

• Understand the economic benefits of mutually supportive uses within night-time clusters

• Reflect positively with clear policies in the Development Plan

• Taking lead from GLA, provide SPG to show how impacts can be addressed through venue management

• Town centre management to co-ordinate street cleansing, policing and late night transport

• Trust licensing regulatory regime to deal with matters within licensing remit

CASE STUDY: NIGHTCLUB, SURREY

SOLUTIONS: TOWN CENTRE MANAGEMENT & SCHEME MANAGEMENT Town centre management

• Cultural uses not dirty uses; joined up safety/surveillance-policing;

• Night time tsars; street angels; 24 hr public transport such as the Night Tube (fast continuous dispersal) etc.; support well run NTE premises;

Planning and property approach:

Recognition of evening activities in Development Plan Policies (SPG);

• Agent of Change Principle;

• Use of Deed of Easement of Noise (proprietary right)

• Dominant tenement;

• Servient tenement;

• Article 4 Direction (Wandsworth 2016); Encourage Asset of Community Value (under Localism Act); Music Zones.

MANIFESTO FOR NIGHT TIME ECONOMY:

Every town should…..

• have a Night Time Economy Vision;

• have an identified NTE Champion/Czar;

• bring together a partnership of authorities, operators, residents and users to curate the vision;

• have a leisure strategy to attain the NTE vision (use para 156 and 161 of the NPPF);

• National (paragraph 23) and Local Planning Policy should promote and protect NTE.

(Source: Philip Kolvin QC, Cornerstone Barristers 2016)

MANIFESTO FOR NIGHT TIME ECONOMY CONTINUED..

• Town centres should be designed to enhance the users’ experience;

• Voluntary social responsibility schemes to be promoted;

• National and local licensing policies should translate the leisure strategy in action;

• Regulatory action should be last resort, based on transparent evidential standards;

• The public and private sectors should work to change the perception of town centres so as to build the diversity of uses;

• There should be greater integration of day and night time uses;

• There should be common standards of training for both operators and regulators.

(Source: Philip Kolvin QC, Cornerstone Barristers 2016)