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Listing of undeveloped land as ACV

Most reported cases relating to listing as an Asset of Community Value (ACV) are connected to pubs and other buildings. Recently in an unusual case a field was listed as an ACV. It is a reminder that community use is not confined to buildings and undeveloped land is at risk of listing if it qualifies.

Although the immediate effect of a listing is to delay any proposed sale, it is important to remember that a listing is a material consideration in dealing with a planning application.

Background

In the case of Banner Homes Ltd v St Albans City and District Council, Banner Homes owned a field on which it would like to build homes but it lies within the metropolitan green belt and so it is unlikely that the field can be built upon in the near future.

Two public footpaths cross the field and, making use of that access, the field has been used by the local community for outdoor pursuits for about forty years.

On 10 March 2014 St Albans City and District Council accepted an application for registration of the field as an ACV.  Banner Homes sought a review of that decision and the Council decided that the listing should remain. Banner Homes then appealed to the First Tier Tribunal.

Following the listing Banner Homes put up wire fences to prevent members of the public wandering off the designated footpaths and placed signs stating that the land was "private" and "no unauthorised access" was permitted.

Legal test

Sections (88(1) and (2)) of the Localism Act 2011, that created ACVs, provide the following:

Land of community value

(1) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority's area is land of community value if in the opinion of the authority:

(a) 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
(b) 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.

(2) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority’s area that is not land of community value as a result of subsection (1) is land of community value if in the opinion of the local authority –

(a) 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
(b) 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.

Decision of the Tribunal

The Council put forward the proposition that while access off the footpaths was now prevented, the benefit from looking at the field was an ‘actual current use’ which satisfied the test in section 88(1). However the Tribunal considered that the use of the word ‘actual’ suggested a physical use. It also considered that the primary use of the footpaths was to pass and re-pass so that any enjoyment of the views from the footpaths was an ancillary use and incidental to the main use of the footpaths.

The Council's view was that prior to the fencing off, the more expansive use of the field furthered the social well-being or interests of the community. Banner Homes argued that any use of the field beyond the footpaths was a trespass and Parliament could not have intended an unlawful use of the land to qualify as ‘actual use of the land’. The Tribunal rejected Banner's argument and drew comparisons with village green law where trespass could lead to the establishment of a right.

Banner Homes put forward evidence that it had no intention of either selling the field or granting access rights to any third party. However, the Tribunal considered it was not unrealistic to think that there might be a time in the next five years when there may again be relevant non-ancillary use of the field. The Tribunal concluded that given the history of the field, Banner Homes might well conclude that relations with the local community would be best served by restoring the status quo or entering into some sort of licensing arrangement.

Conclusion

Registration of land as a town or village green prevents development of the land altogether. It is not known why an application was not made in this case. Whilst this might be of some comfort, the listing of an undeveloped site as an ACV will restrict dealings with the site. It will also be a material consideration to be taken into account by the local planning authority in any future planning application.

Contributor: Laura Ford

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 30 April 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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