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.
Is there a new white knight? Step forward ‘assets of community value’ (ACVs). A legal concept introduced in the Localism Act 2011 as part of the then government’s localism agenda. The limitations of ACVs have been gradually tested before the courts and the question is being asked: 'Is applying to register a beloved informal open space as an ACV beneficial in the fight against unwanted development where a village green registration would or may fail?'
In this mini-series of articles, I will be looking for answers to this question. Here, I first explore whether an informal space can be classed as an ACV. In the second part, I reflect on the legal tests for village greens compared to those for ACVs. Finally, I conclude by looking at the battle that lies ahead between ACVs and development projects.
PART 1: - Can informal open space be an ACV?
The leading, and long running, case on the right to register informal open space as an ACV involves a site situated at Bedmond Lane Field, St Albans in Hertfordshire. The owner of the site is house builder, Banner Homes Limited. The field, which was also subject to formal public footpaths, is described as having been used by the local community for more than 40 years for various peaceful and beneficial recreational activities, with the knowledge but not permission of Banner Homes.
In 2014, the residents’ association successfully applied to St Albans City and District Council to list the field as an ACV. This prompted Banner Homes to fence the field to prevent public access save for access along the public footpaths. It appears no application was made to register the field as a village green although the reasons are not reported. Similarly, while no planning application for development of the field had been submitted by Banner Homes, it was clear by the numerous and costly steps undertaken for review and judicial challenge of the listing that they considered the ACV a significant impediment to any future development of the field.
Following the fencing, Banner Homes unsuccessfully challenged the ACV listing, first upon review before the council and then on appeal before the First-tier Tribunal on 6th April 2015 and further appeal before the Upper Tribunal on 14th May 2016. In a final effort of judicial challenge, Banner Homes further appealed to the Court of Appeal in Banner Homes Limited v St Albans City and District Council and Verulam Residents’ Association  EWCA Civ 1187.
The Statutory Test
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:
- 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
- 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.
As the field was fenced at the time of review, test (b) above applied and the First-tier Tribunal and Upper Tribunal found that there was a realistic likelihood that the field could be used again for a use for the social wellbeing and interests of the local community in the next five years. In coming to such conclusion, the First-tier Tribunal noted 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.
There was only a narrow legal issue permitted for consideration by the Court of Appeal. Namely, the meaning of ‘actual use’ (highlighted above) within the statutory test and whether it could include actual ‘unlawful’ use. The facts being that the use, not being authorised by Banner Homes, was trespass.
The Court of Appeal dismissed the appeal and found that unlawful use was not precluded from the meaning of ‘actual use’ in the context of the statutory test for ACVs. There was no strict preclusion of unlawful uses when carrying out statutory tests (a) or (b) above. However, the Court of Appeal agreed that within the statutory context requiring any actual use (past or present) to further the social wellbeing or social interests of the local community then an ACV would, as a matter of factual judgement of the determining authority, self-preclude certain unlawful activities contrary to such test. Examples given where illegal raves, drug use, violence and noise nuisance.
Conclusion and Lessons
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 subsequent 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, it can be seen from the above case that 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 a ACV.