In this final part of my mini-series of articles on ACVs, I will assess their potential role in resisting development projects. Earlier in the series, I first looked at whether an informal open space can be classed as an ACV and then in Part 2 compared the legal tests for village greens and ACVs.
ACVs vs Development - the new village green?
Noting the looser legal requirements to register an ACV compared to village greens (discussed in Part 2), it will be no surprise that such listing is not as strong against development of informal open spaces. Unlike a registered village green, a community open space listed as an ACV can neither definitively stop landowners preventing public access and use of the land nor strictly prevent planning permission being granted for its development.
So is it of any value? In short, yes. Though not a silver bullet against future development, it can be a useful tool for communities in their endeavours to protect informal open spaces.
Firstly, there is a statutory moratorium on disposal of sites listed as ACVs. This requires landowners to give notice to the local authority of an intention to sell the site which triggers a moratorium on such a sale of up to six months (assuming a community interest group registers as an interested bidder within six weeks). It also requires any sale to be completed with 18 months of such notice, otherwise the process must start over.
Though the landowner has no obligation to sell to the community interest group (and the development value of the site will likely make a successful community bid difficult), this moratorium can be a significant development impediment to landowners and potential developers. It can increase costs and cause time delays (potentially affecting the viability of any development). Further, informal open spaces are commonly the subject of large housing developments which can involve multiple landowners and complex land assembly which could be frustrated by any moratorium.
Secondly, the listing of an informal open space as an ACV may be a material planning consideration in both the decision making of planning applications and general plan making (see for example paragraph 2.20 of the Government’s Community Right to Bid: Non-statutory advice note for local authorities). Moreover, in most cases and while dependent upon individual facts, it is rare for the ACV status of a site not to be a material planning consideration. Of course, though likely a material planning consideration, the weight given to such consideration will still be a matter of planning judgement (against the background of national and local planning policies) for the decision maker.
From a national planning policy perspective, paragraph 70 of the National Planning Policy Framework (NPPF) is particularly relevant to ACVs. It provides that policies and decisions should: (a) plan positively for the provision and use of shared spaces and community facilities to enhance the sustainability of communities and residential environments; (b) guard against the unnecessary loss of valued facilities; and (c) ensure an integrated approach to considering the location of housing, economic uses and community facilities and services. Paragraph 73 & 74 of the NPPF have further application to open spaces in plan making and decision taking.
For local communities, the importance and protection of ACVs should be considered as part of the production of any neighbourhood development plans. It may be possible to allocate community open spaces listed as ACVs for community use in site allocation proposals together with neighbourhood plan policies protecting ACVs (to the extent achievable within neighbourhood planning).
Finally, if the local authority owns the land, the community group may wish to consider applying for a Community Asset Transfer to a special purpose vehicle or the parish council. This is a voluntary scheme for local authorities permitted in accordance with The Local Government Act 1972: General Disposal Consent (England) 2003. Political support and pressure is of key importance under this option given its voluntary nature.
Summary and final thoughts
A successful application for listing an informal open space as an ACV is not as powerful as a successful application to register it as a village green. Therefore, the ACV is not a direct replacement to village greens and the latter should always be the first consideration when assessing the legal options to protect open spaces against development.
However, where a village green registration is not achievable (or even where success of such application is uncertain), then also applying to list the open space as an ACV can provide several benefits and opportunities to the local community. Such as from potentially stifling the practicalities and viability of developments through to providing alternative planning arguments on specific applications and policy opportunities within the production of new and revised local and neighbourhood plans.
Although ACVs may not be able to defeat potential future development alone, they are a useful tool for local communities’ to consider as part of their endeavours to protect valued open spaces against unwanted development.