Village greens and Assets of Community Value (ACVs)

Historically, village greens were the ‘white knight’ for local community groups seeking to protect beloved open spaces. However, in recent years, the prospects of successful village green registrations have been eroded by evolving case law and new statutory limits which arguably shift the balance in favour of development.

Increasingly, Assets of Community Value (ACVs) are seen as another option to achieve the same objective. ACV is legal concept introduced in the Localism Act 2011 as part of the government’s localism agenda at the time. However, the limitations of ACVs have been gradually tested before the Courts. So, is applying to register an informal open space as an ACV beneficial in the fight against unwanted development where a village green registration might fail?  

A building or other land can be listed as an ACV if, in the opinion of the relevant local authority and in accordance with section 88 of the Localism Act 2011, 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.

An informal open space, though used without permission of the landowner, is of a kind that can qualify for registration as an ACV. Whether particular cases meet either statutory test will be a matter of factual judgement firstly of the local authority and subsequently on any appeal before the First-tier Tribunal.

Of course, developers are likely to take actions to physically prevent continued public use of an open space as well as conduct themselves in such way as may evidently support a contention of no realistic prospects of public use recommencing in the next five years. However, the tribunal applies a liberal assessment of the realistic prospects of recommencement.  The longer the open space has been used, and the more contentious the prospectus of development may be, the greater the likely chance of an open space being successfully registered as an ACV.

There are some significant differences between the legal requirements to apply and register an informal open space as a village green compared to the looser and easier requirements for a listing of an ACV.

These are summarised below:

Village Greens ACVs
Community use ceases (such as by fencing)
  • Strict one-year period to submit application from the date the use ceases (or is challenged) – s.15(3) Commons Act 2006.
  • No strictly defined period to apply for registration;
  • The test is whether there has been an actual use in the ‘recent past’ which is a judgement decision of the determining authority;
  • Decisions of the First-tier Tribunal, primarily relating to pubs, indicate that ‘recent past’ can be more than one year, dependent on the facts of each case.
Period of past community use
  • Past community use must have occurred for a continuous period of 20 years – s15(2) Commons Act 2006.
  • No strict time period of past community use;
  • Decisions of the First-tier Tribunal have indicated that past community use need not be ‘substantial’ or ‘continuous’ use within the recent past but that trivial or very temporary use will be disregarded as ‘ancillary’ to a main use.
Intentions and actions of the landowner (‘as of right’ vs ‘by right’)
  • The community use must be ‘as of right’ in order for successful registration;
  • ‘As of right’ means public use without the owners’ permission and/or without overt notice of an owner’s intention the land is private (e.g. private signs, oral warnings);
  • Also, Landowner statements per s15A of the Commons Act 2006 will prevent registration.
  • The intentions and actions of landowners are not relevant to the assessment of past and current ‘actual’ community use;
  • The intentions and actions of the landowner will though be a material consideration in the assessment of whether such past actual use, if ceased, will realistically recommence in the next five years.
  • As seen in the Banner Homes case, even fencing was not a preclusion to the filed being listed as an ACV.
Planning
  • Certain actions under the Planning Act can trigger a period of protection preventing new applications – s15A of the Commons Act 2006.
  • Examples include applications for planning permission on the land and draft development plan documents identifying the land for potential development.
  • No such periods of protection apply for ACVs listing applications;
  • However, the grant of planning or housing allocation of the land in draft development plans may affect its prospects of being determined that the community use, if it has ceased, would realistically re-occur within the next five years.