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Unlawful use by public does not preclude ACV listing

The Upper Tribunal has confirmed that a field should remain listed as an Asset of Community Value (ACV), despite the use by the public being unlawful.

An ACV listing does not prevent the landowner from disposing of its property. But the owner will have to comply with the statutory procedure before selling, which can cause substantial delay.  An ACV listing can also affect value, and will be  a material consideration to be taken into account by the local planning authority in the event that a planning application is submitted.

The case concerned a field owned by Banner Homes Limited. The residents' association that applied for it to be listed claimed that the field had been used, for some 40 years, by local residents for recreational use. This included activities such as walking, exercising dogs, informal play by local children, and photography of local flora and fauna.

After the land had been listed, Banner Homes erected fencing and signage stating 'private land no unauthorised access'. The local authority accepted that Banner Homes was entitled to exclude the public from the land in this way. Nevertheless, it upheld the ACV listing on appeal by Banner Homes.

Banner Homes appealed to the Upper Tribunal on two issues:

1. Does 'actual use' in section 88(1)(a) of the Localism Act 2011 mean lawful use? 

Section 88(1)(a) provides that a building or other land in a local authority's area is land of community value if in the opinion of the local authority:

  • an actual or 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.

2. Did the First-tier Tribunal wrongly interpret the meaning of section 88(2)(b) of the Localism Act 2011, in assessing future use?

What does 'actual use' mean?

It was decided that the actual use does not have to be lawful in order for property to be listed as an ACV.

The Upper Tribunal's view was that as long as the activity furthers the social wellbeing or social interests of the community, it will satisfy the requirement of section 88(1)(a). If there are conflicting public interests – between the interests of the public and those of the landowner – that is for Parliament, and not the courts, to address.

What about future use?

If property is not currently furthering the social wellbeing or social interests of the local community, it can still be listed as an ACV if:

  • there is a time in the recent past when it furthered social wellbeing and social interests; and
  • it is realistic to think that there is a time in the next five years when it will do so again.  

The Upper Tribunal had to look at the second limb of this test. The First-tier Tribunal had ruled that it was not 'fanciful' to think that there could be a future use of the land that would satisfy the test. 

Whilst the Upper Tribunal's view was that it would have been wise to use the statutory wording, it did not consider that there was a gap between 'realistic' and 'fanciful' in this case. Therefore, the First-tier Tribunal had not erred on this point.

This case shows how disgruntled locals can use an ACV listing to thwart development. Whilst the ACV status of the land will not prevent the owners from disposing of it, it will restrict the market for it.  Also, whilst the land remains listed as an ACV, it is unlikely that planning permission for development will be granted.  

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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