In brief, the Localism Act 2011 (“the 2011 Act”) requires local authorities to keep a list of assets (ie. buildings or other land) which are of community value. The effect of listing is that an owner intending to sell the asset must give notice to the local authority. Therefrom, a community interest group then has six weeks in which to ask to be treated as a potential bidder (the interim moratorium period). If this occurs, the sale cannot proceed for six months (the full moratorium period) so as to allow the community interest group to come up with an alternative proposal. The owner then has 12 months to complete the sale (or 16 ½ months if no full moratorium period) before the process repeats itself.
Whilst the community interest group can submit a bid for the asset, it is entirely up to the owner to whom and for how much the asset is sold. Likewise, listing of an asset does not impose any obligation on the owner to maintain the asset for community use. Appeals by an owner of a listing by the local authority may be made to the First Tier Tribunal pursuant to Regulation 11 of the Assets of Community Value (England) Regulations 2012. Regulation 14 provides an entitlement for the owner to compensation from the local authority of losses incurred as a result of any listing.
Section 88 of the 2011 Act sets out the statutory criteria for the listing of an asset of community value. A asset is of community value if EITHER:
(1) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community
OR
(2) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community
The First Tier Tribunal Decisions
The Haddon Property case concerned an appeal of the listing of a golf course and club house closed in 2013. This asset had been group listed by the council with the connecting country park. The listing of the country park was not in dispute. The Judge found that the fact two parcels of land are in common ownership was not sufficient to make both the subject of a combined nomination for listing. He found that the country park and golf course had significant functional differences and as such each was a ‘separate land unit’ and should be separately listed (assuming each was of community value).
As the golf course was closed, the issue for consideration was whether criteria (2) above had been met so as to list the golf course. That is to say, (i) was the recent past use of the golf course a furtherance of social wellbeing or social interests of the local community and, (ii) if so, was it realistic that there will be a time in the next five years when such land would again further social wellbeing or social interests of the local community (whether or not in the same way – ie. not necessarily as a golf course).
On the first question the Judge stated that a private members club, such as a golf club, could further social wellbeing or interests. Although acknowledged that the more exclusive the establishment the less it may be said such place is of sufficient relationship to the community. In this case the Judge found that the golf course and club house, noting its modest green fees and pay to play as well as its footing in the community, was in the recent past a furtherance of social wellbeing or interest to the local community.
On the second question the Judge found that it was not realistic that the land would be brought back into a use for the furtherance of the social wellbeing or interests of the local community (whether as a golf course or not). In this case the Judge noted the planning issues on the club house (which was originally granted planning permission for temporary use with advisory notice upon extension of the period for the initial temporary use that such use would not be extended again). There was also a funding and viability issue arising from the cost of repairing the golf course so as to be again open for public use. The Judge found that a golf course without a club house, and with limited funding options for the courses repair, was not realistically viable so as to be open for the benefit of the local community within the next 5 years. The Judge also found that alternatives uses advanced (which included recreational use) was not realistic noting the funding issues and the existing similar facilities provided by the country park. Accordingly, the golf course and club house was ordered to be removed from the list.
The Banner Homes decision concerned an unused field. The field had two public footpaths pass across it. Until 2014, the field had for some 40 years been used by local residents for recreational use, such as walking, exercising dogs, informal play and other social activities. The field was listed by the council in 2014 and upon listing the owner erected fencing (save for access along the public footpaths) and private land signage. The owner then appealed the listing.
The first issue contended by the council was that the use of the public footpaths amounts to actual use of the whole field (that is not an ancillary use) and which is realistic to continue. That is to say that criteria (1) above applied. The argument advanced was the observation of the flora and fauna within the field from the public footpaths constitutes use of the field as a whole, and that physical use of the land was not necessary. The Jjudge found that such argument was not within the meaning of section 88(1) and would no doubt cause significant consequences. The Judge also noted that the footpaths couldn’t be separately listed as such social use was ancillary to the legal primary purpose of footpaths (namely, to pass and repass).
The second issue was whether the ‘actual’ use must be lawful use whereby the activities by the public without permission was trespassory and therefore unlawful. Applying the common legal principles arising in village green and public right of way case, the Judge found that peaceful activities without force or secrecy could amount to actual use and the word ‘lawful’ should not be implied into the sections interpretation. The Judge noted that this wouldn’t open the section up to any unlawful activity as such activity would still need to be in furtherance of social wellbeing or interests.
The final issue was whether, noting the fencing erected by the developer, it was realistic to think in the next five years such use of the land could occur again. That is to say whether criteria (2) above applies. The Judge found that: given the long history of the public recreational use of the land; the planning difficulties for the developer to redevelop the land; and the possibility the developer may find value in opening the land up to the public again by licence, it was realistic that such use could arise again in five years.
Accordingly, the Judge found that the field should remain on the list as an asset of community value.
