It’s as clear as Night & Day – the statutory nuisance ruling that provides hope for venues in the face of encroachment of residential development

In this article, Peter Rogers reports on his work as the expert acoustician for a long-established and significant music venue, and its appeal against a Noise Abatement Notice by Manchester City Council.

By Peter Rogers FIOA

When I think about how acoustics fits into sustainable development in our cities, I often begin by achieving an understanding of the desired balance that works for that individual place. This often focuses on maintaining the vibrancy of the nighttime economy that already exists without adversely affecting neighbouring residential development.

‘Agent of Change’ is the buzz phrase we often hear, but as a concept it has been with us long before the overt mention of it in NPPF, PPG24 and before – the sentiment remains though, that an unreasonable restriction on business should be avoided. I will be discussing just how much teeth that assertion has later in this article. This case shows what happens when things go wrong, and why this judgement is hope for every existing venue. It also raises concerns for those residents who move in next door to a venue believing that the developer has sorted everything. It spans planning and statutory nuisance.

As the expert acoustician for the Night & Day Café, involved in this near four-year appeal against a Noise Abatement Notice (NAN) by Manchester City Council (MCC), I share my personal reflections on the judgement (contained in full at the link at the end of the article) and outcome. This is not necessarily the view of the venue or the legal team. I do this ahead of Acoustics 2024, which will be held in Manchester, and which will hopefully include a tour of this legendary grass roots venue, led by me. This article can only touch on the discussion that this case raises and its implications, so it is perhaps a teaser ahead of a deeper exploration in September.

Above: Night & Day Café, Manchester

Back to the 90s
The background to this case begins in the heady days of the 1990s when the Hacienda was still open. Night & Day was opened by Jan Oldenburg in 1991 in a former chip shop and it slowly developed from a café into a boisterous live music venue with a reputation for pioneering alternative live music, sparking what is now known as the Northern Quarter of Manchester. Bands which were catapulted into fame there included Elbow, the Artic Monkeys, Manic Street Preachers, Kasabian, and Catfish and the Bottlemen (v) . In 2018 the venue was taken over by Oldenburg’s daughter, Jen, and her husband, Ben, who continued Oldenburg’s work.

Initial noise complaints
The venue began attracting noise complaints from residents in new development that had encroached into the area. The first battle to resist restrictions was successful when Best Practice Means (BPM) were used to minimise the noise transfer, but then new complaints began again on the very first day that the venue resumed its operations as covid restrictions eased.

What had changed was that residential development had been permitted where there had previously been warehouse use, and that property shared a party wall with the venue’s stage. The dwelling had been granted planning permission with a condition relating to sound insulation, but this had not properly been discharged. This left the noise transmission at unacceptable levels according to the residents, and the council agreed, but never measured it. Eventually, Manchester City Council (MCC) acted in accordance with their duty under the Environmental Protection Act 1990 by serving a Noise Abatement Notice in late 2021, after officers witnessed what they assessed to be a nuisance (still no objective data was gathered).

Venue appeals
This is where I became involved as the Night & Day Café appealed the notice. After completing sound insulation measurements and initial measurements over real events the data made it clear that music was intrusive into the bedroom, with a particular weakness at 250 Hz. There was a distinct and noticeable difference between the live music sound levels and the pre-recorded music sound levels that occurred later in the night (until 3am). Interestingly, this raised my first eyebrow when I found that short- term LAeq,5min values in the bedroom were around 37 dB(A) during live music, but around 33 dB(A) during DJ sets. Why this was surprising was that at the time the permission was granted the MCC standard planning criterion was 35 dB(A) L Aeq,T in city centre locations, based on the relaxed BS 8233 position where development was desirable.

In the absence of a defined period, I interpreted took ‘T’ as an eight-hour average, as is standard practice and used within BS 8233. In the scenario of averaging the time over eight hours (which included three hours on-time and six hours off) the existing sound levels with the DJ’s pre-recorded music in the bedroom would have complied with those criteria, even though it was extremely disturbing with bass and vocals clearly audible. Since then MMC now requires 30 dB(A) in bedrooms, presumably still over an eight-hour average.

My other eyebrow raised when MCC decided only to focus on the DJ periods in a notice, which had been broad in an apparent effort to focus on the 11pm to 3am period. This seemed to suggest that the higher levels before 11pm were considered by MCC not to be a nuisance because of the time of day, even thought they were higher levels of sound. The rationale for this is that it is the common and ordinary use of the venue. MMCs’ barrister attempted to call the DJ sets, which were later, an ‘exceptional use’ of the venue. This factually was not supported as DJ entertainment had developed alongside the live music offering in the early days. Once the case began (originally listed for just four days) it became clear that the Judge was very keen for both sides to work together to find a technical solution, adjourning the case to allow this. This allowed joint monitoring to be undertaken over several events.

Joint test concerns
If I had a third eyebrow it would have been raised by the joint tests, during which MCC Environmental Health (now supported by Hann Tucker Associates) judged that they would consider the threshold of their nuisance judgement by officers within the flat next door that was found to be an LAeq 27 dB(A) as a one minute measured value during pre-recorded music. Given that any/ all of previous planning permissions using the 35 or 30 dB(A) criteria would be well above this, it flagged a potential conflict between the judgement by officers and safeguards implemented in the MCC in development by planning approach. This of course also highlights a problem with applying overall dB(A) values to music noise, which has distinctive character.

The closest available guidance that has reference to music related to exercise classes is the Gym Acoustics ProPG, which suggests a needs to control airborne noise transfer to bedrooms to much lower levels (G10-20 is suggested at night, broadly equivalent to NR 15 to 25) to avoid a significant adverse effect. It is interesting to note that the 27dB(A) is equivalent to NR21 if taking the -6 approximation, so this aligns a subjective assessment within the middle of that range.

A target criterion at each octave band was developed with Hann Tucker Associates on a hybrid between this and the NANR45 criteria (not specifically intended for music), which may be of interest to those considering guidance on regularly occurring music. Suffice to say it might be described as just audible with heavy control of bass frequencies. This was used as a target that was desired by the MCC team, which is below the 30 dB(A) still used to approve residential development, not just in Manchester but widely across the country and well below the 35dB(A) applied when the change of use was approved. Beware all those who tread the dB(A) path!

Acoustic baseline
I was also able to prove approximately 5dB difference between an empty and full venue, which was a useful finding to support a sound system set-up when empty. Eventually, after monitoring 32 events during the period of the adjournment, it was possible to define a robust acoustic baseline for the ‘common and ordinary use’ of the venue for DJ sets after 11 pm. This showed that the range of music noise outputs was far greater than the ‘snap-shot’ of 95 dB(A) at the mixing desk I had originally indicated on the stand: it was more like 106 dB(A) and 110 dB(C) with audience. This required me, under my expert duties, to draw this to the attention of the Court, which attracted attention and more eyebrow raising from the council’s barrister this time, but it was important in defining what degree of restriction would be imposed on the venue for different levels of sound outputs, as commented on by the Judge in the judgement. With constrained space within the dwelling and the venue it was not practicable to propose enhancement works to the sound insulation of the party wall without undermining the use of the land on either side. It later was suggested that a change of layout could be an answer, but that was dismissed as ‘too radical’ by the MCC team but it remains an option for whomever moves back in.

A win for MCC
So, with the technical evidence now clear, and seemingly no balance to be struck, I suggested a slightly restricted spectral and level music output, defined as ‘Test Profile 1’, which would restrict 56% of events in some way (mainly in the bass region). This would at least allow the venue to operate commercially without what they considered to be unreasonable restriction, as should have been the case if the Agent of Change principle had been properly implemented when the dwelling was first proposed. As the residents would continue to suffer, according to the MCC officer’s assessments, the legal arguments began.

The main points came from the recent Fearn v Tate Supreme Court [2023] UKSC 4 (i) ruling around nuisance, which required consideration of the ordinary use of the land, if it had been done “conveniently” and with regard for the character of the locality before any of the usual nuisance factors (including reasonableness) were considered.

The Judge decided that the locality was ‘mixed’ in planning terms, and so the Northern Quarter deserved no special protections for its cultural significance as such and that the use of the dwelling was residential and not the warehouse use it had been before. This is likely to make music venues (especially in Manchester) shudder, and certainly has fuelled the Music Venue Trust to become quite vocal in the press. The Judge also judged that the use of the venue of the nightclub with DJ sets was exceptional, with the live music being the common and ordinary use. As a result, she concluded that MCC was right and that a nuisance existed at the time of the notice, so it was justified.

On whether Best Practicable Means (BMP) existed as a defence she judged that Agent of Change could not be considered (which is one for the next government to consider) and the venue did not have that defence at the time because the Noise Management Plan was only being loosely complied with. This, at face value, was the end of the case and a win for MCC, but the Judge continued; she said that since the service of the notice, much had been done by the venue which has changed to a point where she felt that the venue did now have BPM in place.

Above: Noise monitor at the mixing desk position (image courtesy of Sustainable Acoustics © 2023)

A win for Night & Day
Ironically, nothing had been done to change the Noise Management Plan in reality, but the Judge had a ‘cunning plan’ that even Baldrick would have been proud of (Blackadder reference for those unfamiliar). The ruling was that the Abatement Notice would be amended to require a noise emission limit defined as Test Profile 1 levels (which were those representing reasonable restrictions of the venue). This would allow the venue to continue to operate almost as it always had done, but leaving the resident with a nuisance likely to recur, which by inference, they must seemingly either endure or deal with in another way.

There are some implications of this stance in my analysis of it, which are:

1. This effectively retrospectively implemented Agent of Change (food for legislative thought I would suggest).

2. Can BPM really be applied at some point after the nuisance was established (effectively retrospectively)?

3. Currently, there is no nuisance as the flat is being left empty, which effectively reverts its use to storage (a lot like a warehouse) which was a time when no nuisance existed. This is a concept very recognisable to those familiar with one of the key points that can be taken from the Coventry v Lawrence [2014] UKSC ruling (ii).

This case raises several other broader points and questions in my mind, which are relevant to acousticians dealing with new residential developments in planning, venues in licensing and nuisance in the places these different regimes overlap. Continuing the numbering to assist keeping the list of things this case has raised:

4. Does the ‘safety net’ of Statutory Nuisance have a BPM-shaped hole in it that leaves the resident continuing to suffer a nuisance? If so, this is effectively the first licence for a venue to cause nuisance of its kind that I am aware of.

5. Has the Agent of Change principle got any teeth? What can be done when planning permissions are not properly implemented to deliver the Agent of Change to protect businesses like the Night & Day Café against unreasonable restrictions – would the recent call by the Culture, Media & Sport Select Committee (iii) for giving it teeth on a statutory footing look something like a defence for Statutory Nuisance? This would certainly offer other businesses the same protection as the Night & Day Café now has against future development, but that took an Abatement Notice to be served. It may also get around the clumsy legal agreements like easements, which are being used but do not robustly protect the venue from complaint and the harm to the business that can result.

6. What criteria should be used for dwellings, such as those allowed near to commercial premises under permitted development? – The Gym Guidance ProPG (iv) appears to offer a better option than WHO or BS 8233, but shouldn’t efforts be made to provide more music-specific guidance now beyond those from concerts? I would suggest so.

These six points are important when considering how our future urban centres will be able to balance the nighttime vibrancy with the degree of protection through good acoustic design that residents need and should expect to satisfy the Agent of Change (which I hope will soon have its adult teeth).

The case is only one from a Magistrate’s Court, and so does not have the power of precedent, but it does tackle a thorny issue. Given the failure of planning in this case, and seemingly also of the ‘safety net’ of nuisance, is it time to rethink how two these regimes should fit together to be fit-for-purpose for a sustainable future? My suggestion is yes – Agent of Change could do with some statutory teeth to protect venues and allow residential development to exist. Let’s see what the new government thinks and does.

The full judgment can be found here: https://www.sustainableacoustics.co.uk/_files/ ugd/75dea4_63f26250a7fe4cc5a0523d0e58d653ea.pdf?index=true

References
v The Legacy of Night & Day Café as it turns 30 years old, The Manc, 2021 (accessed 24-5-24) https://themanc.com/feature/manchester-the-legacy-of-night-day/
i Fearn and others v Tate Gallery [2023] UKSC 4 (accessed 24-5-24) https://www.supremecourt.uk/cases/docs/uksc-2020-0056-judgment.pdf
iI Coventry v Larence UKSC (accessed 24-5-24) https://www.supremecourt.uk/cases/docs/uksc-2012-0076-judgment.pdf
iii House of Commons Committee report (7th report of Session 2023 -24), May 2024, Culture, Media and Sport Committee, (accessed 24-5-24) https://committees.parliament.uk/publications/44704/documents/222242/default/
iv Gym Acoustics Guidance ProPG March 2023, IOA ANC and CIEH, (accessed 24-5-24) https://www.ioa.org.uk/news/propg-gym-acoustics-guidance-available-now