The first Asset of Community Value (ACV) case to reach the Upper Tribunal has upheld the listing of a field used by the local community without the permission of the landowner. The decision will be of considerable interest to the owners of similar properties, considering the uses of land which can benefit the community for ACV purposes, and the bar to show a continuing community use. The process for listing an ACV is explained here. The case has serious implications for owners allowing inoffensive use of land with development potential, including 'meanwhile' uses of buildings.
Backdoor village green?
Bedmond Lane field, located in the Green Belt and crossed by two footpaths, had been used informally by the local community for 40 years until 2014. A local residents' association nominated it as an ACV in 2013, and it was listed by St Albans City and District Council without notice to the owner (Banner Homes) in March 2014. Banner requested a review of the decision to list the field (and fenced the footpath/ erected notices stating "private land no unauthorised access"). The Council decided to maintain the listing in September 2014. Banner appealed to the First Tier Tribunal, which upheld the listing decision in April 2015.
Banner were then granted permission to appeal to the Upper Tribunal on two grounds:
- whether the community use in Section 88(2)(a) of the Localism Act 2011 could include an unlawful use (Ground 1); and
- whether there was a reasonable prospect of a community use in the next five years (Ground 2).
Unlawful community uses
Banner argued that use of land without permission could not meet the test for listing as an ACV. Rejecting that, the Upper Tribunal pointed to:
- the lack of specific exclusions in the ACV legislation for unlawful use (and allowance for criminal use in dealing with acquisition of rights by prescription);
- the fact that the requirement for the use to further the social wellbeing or social interests of the local community provides some "inbuilt protection" from a public policy perspective; and
- the fact that ACV registration does not create any private rights, unlike the Town and Village Green regime.
More than fanciful
On Ground 2, the Upper Tribunal rejected the argument that the 'realistic reuse' test under Section 88 of the Localism Act ACV regime requires anything more than a possibility (as opposed to a likelihood) of a main community use of the land in the future. Noting Banner Homes' insistence that it was not and never had been its intention to grant rights of access or use to the public, Levenson J concluded that the future use test was one for the local authority or the Tribunal, and "is not a matter for veto by the landowner".
The First Tier Tribunal's decision – that it was "not fanciful" that a community use could re-start if Banner had a change of heart – was upheld. Banner's difficulties in securing planning permission to graze horses on the Green Belt land (and the limited chance of planning permission being obtained for other uses in the immediate future) was treated as relevant.
Government guidance recognises that LPAs may treat ACV status as a material consideration. The Upper Tribunal judgment suggests that "as a matter of planning policy any necessary permission is likely to be refused while land is listed". That is wrong but reflects the way that ACV listing is emerging as a trip hazard for developers.
The combination of a low bar to meet the future use test and the limited weight given to the representations of owners will be a matter of concern for the owners of potential ACV sites. While it is sensible that the decision maker considers the property and its potential in the round, to avoid all owners promising they would never allow a community use and therefore defeating the listing of any asset, a sensible balance needs to be struck.
This case will be of concern to owners of similar development sites. While the use of fences and notices may interrupt the creation of other rights, they may not prevent the prospect of ACV listing, and owners may wish to take concrete steps to show that it would be fanciful for the main use of the property to be a community use in the future – possibly by obtaining planning permission for a non-community use if possible.
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