He complained about late night noise. Then a city-wide row erupted

By Jack Dulhanty

Late last summer, the owner of Manchester’s most notorious flat received an unlikely visitor. The two-bed apartment on Dale Street was at the centre of an explosive row that had given rise to countless angry tweets and had been covered by the national press. 

At issue was whether noise emanating from the popular music venue Night & Day Cafe was making life unbearable for the two residents of the flat. But everyone you spoke to said it was much bigger than that: this was about what kind of city we wanted to be, a proxy war in the fight for Manchester’s soul. 

The visitor that day was not the sort of person who tends to get involved in arcane municipal disputes — he was the lead singer of one of the most popular bands on the planet, a man who had been rumoured to be dating Taylor Swift. But his arrival was an audacious attempt to settle the controversy. He had come to the flat because he wanted to buy it. 

‘You’re the problem’

The two residents, whose complaints about being kept awake at night gave rise to this strange saga, have never spoken to a journalist in depth until now. And their absence from the coverage has had a distorting effect, leaving the field open to their growing body of critics. 

When it was first reported in November 2021 that Night & Day had been served a noise abatement notice by the council, the flat’s owners felt Manchester’s wrath. People called them killjoys and “fuckers”, and said they had moved into the city centre only to dismantle it. “If you decide to buy a flat in the middle of a thriving night time economy, don’t then complain that noise is a problem,” tweeted Sacha Lord, Greater Manchester’s night-time economy advisor, adding: “You’re the problem.”

Here was a city built on the myths of the Haçienda, crushing its music culture in favour of flats filled with southerners. Night & Day had helped to launch the careers of the Arctic Monkeys, Elbow and countless local acts and, naturally, its thousands of supporters have been upset by the prospect of its demise. This venue had been one of the pioneers of the Northern Quarter, went the popular argument, and now it was having the rug pulled from under it by a city council that touts the city’s musical heritage but wouldn’t do anything to protect it. 

Earlier this week, the story came to a somewhat unsatisfactory end. District judge Margaret McCormack decided the noise abatement notice would stay in place, but tweaked so Night & Day could continue to operate. After what the council described as an “unfortunate episode” in the city’s history, common sense had prevailed. But is that true? And if it is, why did this particular dispute blow up into such a public and bad-tempered drama — involving petitions, interviews in the Guardian, briefings and counter-briefings in the local press and, as we can reveal today, the botched intervention of a major celebrity? 

A new life in Manchester 

There is a straightforward way of looking at the Night & Day saga: it’s the fault of the two men living in the flat. They moved into a lively hub of nightlife, in the centre of a city neurotic about its musical heritage and the places that incubated it, and then moaned to the authorities. They seem, on a superficial level, very arrogant: arch-gentrifiers, anti-Mancunian narcs. They came to a city built on noise and then complained about noise.

In recent months, I’ve been speaking to one of them, who I’ll call Alex (his name is out there already, but given the abuse he has received, he didn’t want to be named in this story). From his manner of speaking — we only ever talk on the phone — Alex is a logical thinker and someone who, ironically, just wants an easy life. He works in the NHS, and while he doesn’t strike me as a stickler, he isn’t exactly a party animal either. 

He resents how long the saga surrounding the abatement notice has lasted, and the effects it has had on him, his partner, and also the venue’s owners. “The patients I work with in the ambulance service… it can all be taken from you in a second,” he says at one point. “So why have a life of stress?”

Before buying the flat during the pandemic in August 2020, Alex had already been living in the area, on the other end of Dale Street. “It was a bit of a dream for us, living somewhere as vibrant as the Northern Quarter,” he told me. He and his partner were well aware of Night & Day Cafe when they bought the place — Alex had even partied there in the past. “I spent my teenage years here. I was in Night & Day when I shouldn't have been,” he said during one of our phone calls. 

He knew, therefore, that the venue hosts up-and-coming bands, and late-night DJ sets that last into the small hours. The flat in question is part of a former warehouse on Dale Street, the back of which abuts Night and Day Cafe. The flat’s bedroom, most importantly, shares a wall with the venue’s stage. It’s worth noting there have been complaints from other flats surrounding the venue in the past, which have also led to noise abatement notices. 

The pair knew that living in the centre of any city would mean living with noise. “I know there's always that argument that you should expect noise and stuff,” Alex says. But what they didn’t expect was for the water in their toilet to be rippling at 3am on a Saturday, or having to wear earplugs around the house. Ultimately, the couple never wanted nor expected silence, just somewhere liveable.

When Night & Day reopened after lockdown and hosted its first event, in July 2021, Alex filed his first complaint. After each complaint that followed, he would meet with Night & Day’s co-owner Ben Smithson to discuss potential solutions. “I had ten, fifteen meetings with Ben,” he recalls. “He’s a lovely man.” Alex would ask about making improvements to sound insulation, but Ben said it wasn’t possible. “He said there wasn’t the cashflow to do it.”

According to Alex, Ben said that Night & Day had taken a big hit over the pandemic. But when he checked the company’s accounts on Companies House, he saw it had more than £1m in cash “at bank and in hand” (i.e. the capital the company can readily access to, for example, pay contractors). 

Indeed, since January 2021, during which time the venue’s owners have made repeated claims about how the noise abatement notice will financially ruin them, Night & Day has filed annual increases in cash, the most recent being £1.76m in January 2023. A few months earlier, in an interview with the Guardian ahead of the appeal against the abatement notice, Jennifer Smithson, Ben’s wife, said she was looking “to avoid the costs of a three-day hearing by pleading with the council to pay for retrospective sound-proofing in the complainant’s flat.” 

“I realised Ben wasn’t telling the truth,” says Alex, looking back. (When I repeatedly contacted the Smithsons for a response earlier this week, via their press representative, I didn’t hear back.)

Battle in the media 

The noise continued. So did the complaints, and not just from Alex’s flat. In November 2022, the council said it had received five complaints about Night & Day from four separate flats since the venue had reopened in July 2021. When Alex complained, the council’s out-of-hours licensing officers would visit his flat, then Night & Day to ask for the music to be turned down. When Alex eventually met Jennifer, whose late father Jan founded the cafe — a man considered to be “a maverick, a visionary'', “a very affable Dutchman”, and also “a cantankerous old git”, depending on who you ask — he asked why it had taken so long for her to meet with him, considering it was her business. “She looked at me, rolled her eyes and said: 'I'm not obliged to,'” Alex says. (Jennifer didn’t respond to requests for comment.)

In the early hours of Saturday 13 November 2021, Alex was in the spare room, earplugs in, trying to sleep. He had work at 5:45 am that morning. “It was ruthlessly loud that night,” he recalls. By this point, the pair had spent £16,000 on insulation, after assistance from Night & Day wasn’t forthcoming. But water was still vibrating in the glasses beside the bed. Alex’s partner called the council, just as he had before. But this time, there was some kind of miscommunication when officers visited Night & Day. 

Alex says a new manager refused to turn down the music, though he admits he can’t remember the exact events. During the early days of Night & Day’s appeal hearing — it was adjourned multiple times — Manchester City Council told the court they had no contemporaneous notes from the evening of 13 November, though they have notes and records of every other visit. 

A few days later, Alex went into Night & Day for the usual post-complaint meeting with Ben, which they had started having over coffee or a beer. But this time, Ben seemed frosty. Unbeknownst to Alex, a noise abatement notice — requiring Night & Day to stop the late-night DJ sets it says it relies on financially — had been served.

“Regrettably, things will now have to get unpleasant,” he remembers Ben saying.

“How?” 

“With the media.”

As with the other claims in this story, despite multiple attempts to reach Ben Smithson, I have not heard from him or his wife Jennifer.

On 24 November 2021, Ben launched a petition calling for the removal of the notice and it caught fire online, reaching 50,000 signatures in the space of a day. The petition was powered by an outpouring of anger and dismay on social media, where one tweeter said the council “plainly don’t understand the importance of music to Manchester”. Watching the petition racking up names, “we realised the shit was hitting the fan”, Alex says. 

He met with a reporter from the Manchester Evening News to give his side of the story, but that backfired — Alex believes he got “shafted”. The headline led with a quote from him saying: “I’m not an idiot!” inviting commenters to say he, in fact, was. The journalist, he says, “wrote it in a way that just made me look like an arsehole”. The story quoted the manager of a vintage shop over the road from Night & Day as a balancing voice, who said “I’ve never heard any sound at all”. Not long after, Alex and his partner decided to leave town.

For the past two years, they have been laying low 80 miles outside of the city, watching from afar as Night & Day took the council to court, the situation became ever more febrile, and people all over the country rallied to the venue’s cause. Alex regularly refers to the damage done to his partner. In court, he said his partner had lost 30 kg of weight and become a recluse. “He was capsizing,” he says, recalling last summer. “It's just made him think everyone wants to destroy him.”

After moving away, the couple went for a drink at their new local and spotted a poster in the window. It read: “We support Night & Day Cafe”.

The thin wall 

You’re probably wondering, who moves into a flat right next to a live music venue — one they have been to before — then complains when it’s loud? The flat in question isn’t a new development, it has been abutting Night & Day’s stage for over 20 years. The wall shared by the stage and the bedroom was described by Judge McCormack as “faulty”, in that it isn’t sufficiently soundproofed, and Night & Day have repeatedly pointed to inaction by the council’s planning department when allowing the building to be turned into a flat in the first place. 

Although a 2022 local government ombudsman report found the council’s planning regime wasn’t to blame, the issue with the wall had gone unreported for decades. But that isn’t to say others haven’t suffered as a result.

Speaking to a previous tenant of the flat, who lived there on a 12-month lease ending in 2019, they tell me the bedroom is “uninhabitable”. “You could hear the stage better in that bedroom than you could in the Night & Day toilets.” The previous tenant would sleep in another room on weekends and try to make the best of the situation. Night & Day making so much noise meant they could do the same: “We threw a lot of parties,” they say. 

What they didn’t do was complain — at least not to the council. “We saw what happened in 2014 and thought fuck it,” the previous tenant told me. “We complained to landlords, but I’m not putting in an official complaint to get a load of shit in my life.” 

By “what happened in 2014”, they mean the last time Night & Day were served with a noise abatement notice. This again followed complaints from neighbouring tenants — but in this case, from a different housing development. "It's a living nightmare, living here," one of those tenants told the BBC at the time. "Nobody will understand that until you actually live in this flat and actually go through what we've gone through.”

After that complaint, Manchester music figures like Guy Garvey and Johnny Marr supported Night & Day. An online petition opposing the order received 74,000 signatures. The noise abatement notice was eventually dropped, on the condition the venue regularly met with its neighbours. The 2014 complainants were advised to remain anonymous by police. After receiving death threats, they left Manchester. Sound familiar? "The fear that Night & Day put on you," Alex says. "They're huge, they have support, and they can put the pressure on you and win."

A celebrity visitor 

Last summer, Alex received a visit from someone who was interested in buying the flat. On the face of it, this was a surprising development: there isn’t usually a strong market for flats at the centre of a legal wrangling over noise complaints. But in this instance, the prospective buyer probably wasn’t looking to move in. 

The man who turned up for a viewing was Matty Healy, the 34-year-old lead singer of The 1975, one of the world’s hottest bands. He grew up in Alderley Edge and has been described by the Times as "the first, and last, great frontman of the social media era". 

Healy was one of the many musicians who came out to support Night & Day. The venue posted a photo of him in November 2022 — a little less than a year before the attempted purchase — holding a sign reading #SaveNightandDay, on their Instagram. The caption quotes the singer as saying: “This CANNOT happen. The council need to drop the case”.

But his interest in buying the property at the centre of the dispute has never been reported before, and it remains unclear whose idea it was. However it came about, Healy’s intervention promised to resolve things. “He was very charming and very interested,” Alex says. “He essentially said: ‘This is the best outcome for everybody.’” 

In an email to Alex expressing his interest in July last year, Healy wrote: “It’s true I am very interested in purchasing your flat. It would be awesome!” 

The only day Healy was available to take a look around was a Monday in late August. He was coming back from Los Angeles between tour dates. Alex took the day off and headed to the flat. “Obviously, it was something I had to investigate.”

Once he had let Healy in, the singer looked with great interest in each of the flat’s rooms, remarking about what he would do with them. “He was just talking about architecture and interior design,” Alex says. As they toured the flat, they talked. “He spent a lot of the conversation talking about how I felt and how my partner felt. He wasn’t very political about next door.” 

For Alex, the main draw of selling would be to relieve his partner, whose mental health had been “crucified” by the process, he says. While he never made a deal with Healy, it was clear the singer was serious about buying: he sent a letter of intent and had a survey done on the property.

But Alex admits he was on the fence about whether to sell, even with a cash offer of £275,000 on the table, £55,000 more than what the couple had paid. When he said this, I think he could detect the surprise in my voice. Here was a guy whose life had been made a misery by late night noise and whose partner had suffered so much emotionally, telling me he wanted to keep hold of this cursed flat. Even describing it as “my dream” and “where I’m happy”. 

Was it stubbornness? Had all the players in this dispute dug themselves in so far they had taken leave of their senses, including Alex, the council and Night & Day? 

In the end, the decision was taken out of his hands by, of all people, the Malaysian government. A few days after Healy expressed an interest in buying the flat, The 1975 performed at a festival in Kuala Lumpur. On-stage, Healy made an impassioned speech about homosexuality and kissed his male bandmate, resulting in Malaysia’s homophobic government shutting the festival down. 

In the ensuing fallout, the festival’s organisers sued The 1975 for £2m. Healy was advised not to spend money on property, and by November, the celebrity solution to the Night & Day battle had evaporated. 

The other villain 

There’s a second way of understanding what happened with Night & Day. In this telling, Alex is still an arrogant gentrifier — but it’s Manchester City Council who should shoulder most of the blame. 

From early on in the dispute, Night & Day framed the noise abatement notice as something the council could either pursue or drop at will. A BBC article earlier this week said that Ben Smithson “was ‘very disappointed’ the council had pursued it this far”. 

But that’s not really how it works. Noise abatement notices are served by councils as part of their statutory duty to stop what is deemed as a nuisance. What that means is that once something has been found to “unreasonably and substantially interfere with the use or enjoyment of a home or other premises,” which the council had found to be the case here, it is legally bound to do something about it. And, once that abatement notice is in place, it is up to whoever has been served it to reduce the noise levels, stop them altogether, or appeal the notice.

Such notices are exceedingly rare, because noise problems are usually solved by the parties involved and so don’t require the council to get involved. But even when the council does receive a complaint, they can normally solve it without an abatement notice. In 2021, Manchester City Council received 659 noise complaints, which is higher than other years (there were 433 last year, for example). That might have been because of it being the first year out of a comparably quiet lockdown. Either way, every other complaint in 2021 was resolved without a noise abatement notice from the council. It only served one: the one to Night & Day. 

As the dispute raged on, a theory developed that the council were intentionally trying to shut Night & Day down. The suggested reasons varied: one person told me it was to do with a hotel being planned in the old Dry Bar site next door. Dave Haslam, the veteran journalist and DJ, has been regularly tweeting about the council’s efforts to close the venue. Last month, he responded to an event listing council leader Bev Craig as a speaker on issues relating to nightlife, saying: “Will Night & Day have been closed by the Council by then?” Responding to the judge’s verdict, he expressed his “contempt for the way the City Council pursued this matter.” 

In a text message to me before the verdict, Haslam said the council wanted “to blow a big hole in the Night & Day business model”. He also argued the council was only supporting the big players — “mega successful clubs or the highly capitalised venues, or the enormodomes like the AO Arena or the Co Op (Live)”. 

Others disagree. "I've seen recently a few people coming out to have a go at Manchester City Council," one nightlife boss, who knows Night & Day and its owners, tells me. "But I do know that the council has gone to great lengths to work with Ben and Jen on this." 

According to two separate sources with links to the council and the city’s nightlife scene, Night & Day and the council found solutions outside of court, but in the two instances I’ve been told about, the venue pulled out. One says the council offered to pay to soundproof the wall connecting the flat and venue, as Jennifer had said she hoped they would in 2022, but "24 hours later, that offer was rejected" by the venue. When I asked the Smithsons about this — I received no response. 

The council told me that chief executive Joanne Roney and strategic director for neighbourhoods Neil Farlam visited Night & Day on multiple occasions to resolve the dispute, but couldn’t. One source in the council told me that, whenever it looked like a solution was in sight, things would “suddenly change and the finish line was shifted.” 

Council leader Bev Craig also met personally with the owners to try to broker a solution in late 2022. “Unfortunately, as with other instances a pathway to a resolution could not be found,” says a spokesperson. They also said that the council offered to look at funding to do necessary works at the venue, but denied ever making a formal offer to pay for soundproofing.

The other time the venue and the council apparently reached a solution, last year, it fell apart at the last minute. It’s unclear why this happened, with one source pointing the finger at Night & Day’s barrister Sarah Clover KC. "I know things were agreed at the highest level, and when they went back to Sarah Clover she said no," they say.

Significantly, it’s said that this agreement matched the outcome of the legal case this week, that Night and Day could operate the same hours if it used noise limiters at certain times — devices that stop noise levels going above a certain decibel — suggesting that an awful lot of time and money has been wasted since. 

The judge’s decision was hailed as common sense prevailing. But why did it take two and half years, and £63,025 of taxpayer’s money, to reach it? The council were weary to go into further detail when I asked them about this. I was told off the record: “we don't want to start a back and forth about what they said/we said.” I asked both the Smithsons and Clover about the allegation they pulled out of the solution on her advice, but received no reply. 

The court hearings — which were covered in admirable detail by the MEN — were testy at times. At one point, the council’s barrister Leo Charalambides told the court that just because Jennifer Smithson “stamped her feet in the playground and said 'we were here first and we are going to do what we have always done'” it made no difference to the validity of the noise abatement notice. Clover said this was “monstrously unfair”. 

When Charalambides said Night & Day were asking the court to go against “centuries of legal tradition” in dropping the noise abatement notice, and that the council would take the case further if the judge decided to do so, Clover said it was “declaring war” on the night time economy. That statement — a PR nightmare for the council — made headlines.

Everybody wins?

About a week before the verdict, it seemed clear the council were eager to get their side of the story across, and push back against the perception they weren’t trying to support Night & Day. I had heard that for one council licensing officer, the case had “taken over his life”. I emailed that officer and got a reply from the council press team who, like members of hotel staff offering you a room upgrade, said they’d try and arrange for me to speak with council leader Bev Craig instead.

“I'm sure you are aware there has been a lot of misinformation and frankly false claims made about MCC throughout it all,” a communications officer at the council said, adding: “I can give you chapter and verse of what we've done, when, and why.”

That didn’t happen. Neither did the interview with Craig. After the verdict came out, the city’s leader decided she wanted to draw a line under the whole affair. In the same vein, I had been organising an interview with the Smithsons post-verdict, which also fell through. The verdict seemed to give both parties just enough vindication. The council can say they were right to serve the notice, which has now been upheld. Night & Day can say they had it amended in their favour and can continue to operate their early-hours events, albeit with noise limiters.

If this is a victory for both parties, it is a pyrrhic one. Night & Day now have an open-ended noise abatement notice to adhere to, and Manchester City Council have to carry on enforcing it, making them the bad guys in the eyes of the venue’s supporters.

What will the legacy of this story be? The Music Venue Trust, who have been supporting Night & Day throughout the dispute, think it has major implications for the area. “The Judge has decided, and placed on record, that the Northern Quarter is not a cultural area,” the Trust said in a statement. In her judgement, McCormack said that the Northern Quarter’s development means that the area has “evolved to a mixed use”. 

The artist Stanley Chow, a regular at Night & Day who designed t-shirts backing the venue, predicted this when we spoke. “If the noise abatement order is upheld, the Northern Quarter will become a quiet little suburb,” Chow said. Perhaps that’s a bit strong, but it gets to the point — the Northern Quarter is a neighbourhood now.

In a Granada TV supplement from 2000, Tony Wilson appears in a two-piece suit and dotted tie and talks about how Manchester’s cultural scene transformed the city from somewhere no one wanted to live to a centre of culture that people flocked to. “It’s the great contradiction,” Wilson says. People move into the city for its vibrancy, then “they want to get rid of the vibes!”

The supplement was aired after residents who moved into the city centre made complaints that risked the closure of its venues. “I have the answer for Manchester,” Wilson said, probably not for the first time. “The answer is, no one moves into a city centre property without signing a disclaimer, that ‘I will not unreasonably object to city centre life.”

Define “unreasonably” though, because that’s what this drawn out episode really boils down to. Now the appeal has reached a verdict, Alex is considering his next move. The flat has never been up for sale, he says, and the couple can’t keep up the £1,300 monthly mortgage payments while also renting elsewhere. So he says they will be moving back in. 

“It needs some renovation, it’s quite damp” he tells me. “It’s been empty for years”.

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