Anthony Gill explores the increasing importance of planning considerations in decisions of the First Tier Tribunal.

The Asset of Community Value (ACV) regime was introduced under the Localism Act 2011. The ability to have a facility (most commonly a public house) listed as an ACV was introduced to deliver upon the Conservative Party’s promise in opposition to “give bold new powers to local people to protect and improve their much-loved community assets and preserve the social fabric of their neighbourhoods”. (then Shadow Communities and Local Government Secretary Caroline Spelman – 2009).

The listing process allows a community asset to be listed when it satisfies the listing tests under s.88(1) or (2) of the Localism Act: does the use of the land further the social wellbeing of the local community, can it realistically continue to do so?

Once listed the sale of such an asset is subject to moratorium provisions which are intended to delay sale and provide a window of time for a community bid. A property’s status as an ACV can also be a material consideration in planning decisions relating to future development and may limit some Permitted Development rights under the GPDO 2015. Both councils and Planning Inspectors have taken account of listings in their determinations.

However, it’s important to bear in mind that the provisions do not amount to a right to buy and there is no compulsion upon an owner to even consider a bid by a community group. An owner is entirely within their rights to refuse a community bid, even if it were the highest offer.

Since the implementation of the provisions in 2011 assets across the country have been listed as applied to ‘protect’ their local village halls, pubs, and post offices.

The provisions are confined to relatively few sections of the Localism Act 2011 but have generated a significant volume of litigation. The focus of much litigation has been on the test of ‘realism’ found in s.88:

‘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’[1].

In practice this means that the litigation before the Tribunal often concerns a judgement as to the realism of a community use continuing (or being established). The Tribunal is at pains to emphasise that each determination is fact specific but that has not stopped subsequent appeals pushing at the meaning of ‘realistic’.

A particular trend in this litigation has been the effect of the planning status of the land on realism. However, the Tribunal is not a planning decisionmaker and the judges do not purport to have planning expertise. Indeed, some decisions of the Tribunal have explicitly avoided adopting planning terminology (Judge Warren in Firoka (Oxford United Stadium) Limited v Oxford City Council CR/2013/0010). Nonetheless, it is striking how often judges of the Tribunal are asked to consider detailed planning matters in appeals[2].

For example in Spirit Pub v Rushmoor BC CR/2013/0003 an extant planning permission for change of use to a McDonalds restaurant made the continued pub use of the Tumbledown pub unrealistic. Meanwhile, in New Barrow Ltd v Ribble Valley BC CR/2016/0014 the appellant successfully relied upon a recently granted licence upon the land along with a pre-application enquiry response by the Respondent council as local planning authority to submit that the continued use of allotments was unrealistic.

More recently in Greyhound Inn Developments Ltd v Bromsgrove DC CR/2017/0004, Judge Lane was required to engage with the Respondent council’s local plan. The local plan allocated a nearby site ‘BROM3’ for 490 dwellings. This ‘expansion site’ is one of three such sites and an important component of the local plan, contributing to the council’s ‘5 year housing land supply’. A term redolent with meaning to planners but not necessarily more widely understood. The Greyhound Inn, whilst not part of BROM3, was key to allowing sufficient access to the housing allocation. It was only with its demolition that BROM3 could be developed for much needed housing. It was successfully submitted that with the BROM3 allocation being current until at least 2030 (the end date of the plan) it was not realistic to believe the pub could come back into community use since its demolition would occur under one owner or another.

In Greyhound the Appellant therefore relied upon the planning status of a different site when addressing the realism of continued community use. Further, the Appellant was at pains to make submissions on the wider need to significantly boost the supply of housing in the National Planning Policy Framework and that issue’s discussion in the Supreme Court planning case of Richborough Estates Partnership LLP and another v Cheshire East Borough Council [2017] UKSC 37. The Appellant’s submissions even went so far as to address the issue of 5 year housing land supply under para.49 of the NPPF.

In all three of these cases the Tribunal has had to wrestle with the likely future planning status of the land upon which the asset lies. The duty of the Tribunal to consider and address the factual matrix of each asset has inevitably led it to consider detailed planning submissions as so often it is a future development proposal that provokes the listing application in the first place. Increasingly both appellants and respondent councils will have to produce planning evidence and rely upon planning witnesses and counsel in ACV litigation.

Anthony Gill acted in both New Barrow and Greyhound Inn and has appeared in a number of ACV appeals across the country. He advises and represents both Appellants and Respondents.

[1] S.88(1). Section 88(2) provides a similar test as to whether a disused asset might realistically come into such use within five years.

[2] The author acted in an appeal where a Respondent council sought to rely upon ‘TRICS’ database road traffic trip data as part of its submissions.


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