Category: Assets of community value

A Bluffer’s Guide To The English Devolution And Community Empowerment Bill

This weekend you will be worried that someone in the pub is going to say “hey, you’re a planner! … what’s the difference between a mayoral strategic authority, non-mayoral foundation strategic authority and single local authority foundation strategic authority; and between a CCA and a CA; and between the community right to bid and the community right to buy?”

You definitely need to be prepared and, rather than staying at home instead, there are probably three main options:

  1. You could read the 338 page Bill that was introduced into the House of Commons on 10 July 2025, perhaps alongside the 156 pages of explanatory notes and 237 pages of impact assessment.
  1. You could channel your inner Angela Rayner, by way of MHCLG’s 10 July 2025 press release or, for a deeper dive, a guidance document published by MHCLG, which serves to put the proposals within the Bill within a wider reform context.
  1. You could (and have indeed already started to) read this bluffer’s guide (this bluffer being me).

Confession: I have only scrolled through the material once so far just identifying what seemed to be most immediately relevant. There will be much that I have missed.

Much of the Bill serves to give effect to proposals within the English Devolution White Paper (16 December 2024) which I commented on from a planning perspective in my 18 January 2025 blog post Viva La Devolution although there is much more besides.

Anyway, here is some stuff that may be useful:

The Bill is really about four main things (quoting from MHCLG’s guidance document):

  • “Devolution: describing devolution structures, outlining and expanding powers for Mayors and authorities through the new Devolution Framework and explaining routes to devolution for places that don’t have it.”
  • Local government: ensuring the process for local government reorganisation supports the ambition in the White Paper, outlining changes to local authority governance, reforming accountability and introducing effective neighbourhood governance structures to amplify local voices.
  • Communities: giving more power to local communities to purchase assets of community value and …”
  • (the guidance document includes this under the “communities” heading but it is of wider relevance than that) abolishing upwards only rent review provisions in commercial leases.

Devolution

Devolution deals have to date been arrived at in ad hoc fashion. The Bill allows the government to roll out a standardised devolution framework. I summarised the different types of strategic authority in my January 2025 blog post, but MHCLH have now published this series of five “Devolution Framework Explainers” , on:

  • Established mayoral strategic authorities
  • Mayoral strategic authorities
  • Non-mayoral foundation strategic authorities
  • Single local authority foundation strategic authorities

In relation to roads, strategic authorities will be required to set up and coordinate a “key route network”, comprising the most important roads in their area, in respect of which they will have various powers of direction and the power to set traffic reduction targets – and will have the role of licensing bike and e-bike hire schemes.

In relation to planning, they will have equivalent powers to those of the London Mayor; in addition to SAs’ duty to prepare a spatial development strategy, the mayors of combined authorities and combined county authorities will have the power to direct refusal of planning applications of potential strategic importance (Regulations will need to set out what the thresholds will be) or to call them in for their own determination.  They will be able to prepare mayoral development orders, establish mayoral development corporations and, if there is an adopted SDS, levy Mayoral CIL. Mayoral SAs will also need to prepare a local growth plan.

Mayors will be able to appoint and renumerate “Commissioners” to lead on particular statutory “areas of competence”.

Mayors will be elected via the supplementary vote system, rather than “first past the post” (as was the system prior to May 2024). They will be able to be the police and crime commissioner for their SA area. They will not be able to moonlight as a member of Parliament.

What is all this likely to mean for particular areas? I’m glad you asked me that! MHCLG has also now published a series of 16 “Area Factsheets”, providing “information on areas benefitting from English devolution, including electoral terms, route to established status, police and fire functions, distinctive governance arrangements and local government reorganisation”, for:

  • Cambridgeshire and Peterborough
  • Devon and Torbay
  • East Midlands
  • Greater Lincolnshire
  • Greater London Authority
  • Greater Manchester
  • Hull and East Yorkshire
  • Lancashire
  • Liverpool City Region
  • North East
  • South Yorkshire
  • Tees Valley
  • West Midlands
  • West of England
  • West Yorkshire
  • York and North Yorkshire

Local government

This includes the power for the Secretary of State to direct two-tier councils to submit proposals as to how to become a single unitary tier and in some cases to direct particular unitaries to submit a proposal to merge with each other. The cabinet system will be compulsory for local authorities and there will be no new local authority mayors.

“The Bill will empower communities to have a voice in local decision by introducing a requirement on all local authorities in England to establish effective neighbourhood governance. The requirement for local authorities to have effective neighbourhood governance will empower ward councillors to take a greater leadership role in driving forward the priorities of their communities. This will help to move decision-making closer to residents, so decisions are made by people who understand local needs. Additionally, developing neighbourhood-based approaches will provide opportunities to organise public services to meet local needs better.” (from the explanatory notes, paragraph 98).

Assets of community value

The Localism Act 2011 introduced the “community right to bid” by way of the ”assets of community value” process (for a couple of examples of litigation in relation to assets of community value, see my 14 July 2018 blog post, 2 ACV Disputes). In that blog post I summarised the rather toothless nature of the current system as follows:

“The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.”

The Bill proposes the strengthening of the system in several ways (again quoting from MHCLG’s guidance document):

  • “The community group and asset owner will either negotiate a price for the asset, or an independent valuer will set a price based on the market value. Under Community Right to Buy, the moratorium on the sale of the asset will be extended to 12 months, giving community groups more time to raise funding to meet the agreed purchase price. Asset owners will be able to ask the local authority to check that community groups are making sufficient progress on the sale 6 months into the moratorium.

The definition of an ACV will also be expanded to help protect a wider range of assets, including those that support the economy of a community and those that were historically of importance to the community. Community groups will be able to appeal the local authority’s decision on whether an asset is of community value and local authorities will be supported to deliver the powers with new guidance.”

(This will raise significant concerns with land owners I feel sure).

  • Although sports grounds can already fall within the ACV definition the Bill will introduce “a new type of ACV – the Sporting Asset of Community Value (SACV) and automatically designate all eligible sports grounds as such. As with the standard ACV regime, communities will have the first right of refusal when a ground is put up for sale. SACV status will also provide enhanced protections for sports grounds. For example, unlike the standard 5-year renewal period under the ACV system, sports grounds designated as SACV will retain this status indefinitely. Other facilities – such as car parks – that the ground depends on to function effectively – will also be eligible for SACV listing, preventing the ground from being undermined by the intentional removal of its supporting assets.”

Abolishing upwards only rent review provisions in commercial leases

This landlord and tenant law provision, well away from my wheelhouse, is a strange outlier within the Bill.  As per the MHCLG guidance:

“The Bill will ban UORR clauses in new commercial leases in England and Wales. Commercial leases include sectors such as high street businesses, offices and manufacturing. Some very limited areas such as agricultural leases will be exempt. The ban will also apply to renewal leases where the tenant has security of tenure under Part II the Landlord and Tenant Act 1954. The ban aims to make commercial leasing fairer for tenants, ensure high street rents are set more efficiently, and stimulate economic growth.

Following the ban, if a UORR clause is in a new or renewal commercial lease, the requirement for rent not to decrease will be unenforceable; the new rent will be determined by whatever methodology is specified in the lease, for example in line with changes to the retail price index. The new rent may be higher, lower or the same as the previous rent.”

Enjoy your drink. Enough of all these acronyms, it’s an IPA for me please, thank you.

Simon Ricketts, 11 July 2025

Personal views, et cetera

2 ACV Disputes

The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.

So it is interesting to see the extent of litigation that is arising.

There have been many First-tier Tribunal rulings. A 23 June 2016 Public Law Today article by Christopher Cant summarises many of them as at that date and indeed Mr Cant has produced a 300 page guide to the regime, which is up to date as at 8 June 2018.

By way of a recent example of the desperate struggle by pub chains to resist ACV listing of their pubs, Punch Partnership (PML) Limited v Arun District Council (Judge Anthony Snelson, First-tier Tribunal, 7 June 2018) is interesting. The Arun and Adur branch of CAMRA had nominated the Henty Arms, in Ferring, West Sussex. The council had accepted the nomination. Punch sought to rely on a series of technical points in relation to the nature of the nominating body to seek to appeal against the listing:

⁃ First, the “surprising assertion that the Arun and Adur branch of CAMRA…doesn’t exist“, based on the close relationship of branch with the parent organisation. The judge held that there was “nothing in the argument…No authority is cited for the proposition that a branch cannot have legal personality unless it is independent of the ‘parent’ body. A moment’s reflection shows the notion to be unfounded“.

⁃ Secondly, that “the nomination was made without the authority of members of the ‘branch’, and was not a community nomination“. The judge rejects this out of hand: “The idea that the fact that the nomination exercise was handled by a small number of individuals justifies the conclusion that they were acting without authority strikes me as more than a little peculiar. It is in the nature of things that organisations allocate tasks to individuals and do not attempt to perform them collectively. As the evidence overwhelmingly shows, that is what happened here.  The fact that the model constitution requires the branch to operate through a committee does not mean that every decision must be taken by the committee. There is, to my mind, not the first beginnings of an argument that the nomination was unconstitutional, let alone that it was a nullity.”

⁃ Thirdly, that there is no prohibition against the distribution of any surplus to members. The judge found that the legislation only requires that the body “does not” distribute any surplus to its members and there was no challenge to the evidence that surpluses are not distributed to members.

⁃ Fourthly, that any surplus is not applied for the benefit of the local authority area or that of the neighbouring local authority. Again, the judge found that there was nothing in the assertion. In fact any surplus was applied towards the next year’s Worthing Beer Festival and to a publication entitled Sussex Drinker.

⁃ Fifthly, that the branch did not have at least 21 local members. The judge found that “the membership exceeds and [at] all relevant times exceeded 700…of who, 281 had addresses entirely within the area of Arun and neighbouring districts“.

The judge concludes with a withering final paragraph:

“Although pressed with immense energy and determination, I am satisfied that this appeal is entirely free of merit. It is founded on an unduly narrow and unrealistic interpretation of legislation which, it should be remembered, was designed to be accessible to citizens from all walks of life, with or without legal representation, as a means of enabling landowners and communities to grapple with the substance of local issues that matter to them.  It would be unfortunate and contrary to Parliament’s intention if this jurisdiction became mired in technicalities and procedural points – and all the more unfortunate if appeals routinely resurrected arguments which have been fully debated and rejected in earlier cases.”

The second example is a ruling of the Court of Appeal, no less, in Banner Homes Limited v St Albans City and District Council (Court of Appeal, 23 May 2018).

A 12 acre field had been owned by Banner Homes since 1996. According to Lady Justice Sharpe in the lead judgment, it “has been used by the local community for more than 40 years for various peaceful and beneficial recreational activities, such as children’s play, walking, kite flying, exercising dogs, and the photography of flora and fauna. Banner Homes did not give express permission or grant a licence for the local community to use the Field (beyond the public footpaths); but it was well-aware the Field was used in this way by the local community, it made no objection, and until recently, it took no steps to stop it.”

Following nomination by a local residents’ association the council listed it as an ACV in March 2014. In September 2014, shortly before a review hearing in to the listing was to be conducted by the council, “Banner Homes fenced off the Field so that only the public footpaths could be accessed by members of the public. This remains the position today.”

Use of the field beyond the public footpaths was agreed to constitute a trespass. “The single issue that arises in this appeal is whether such unlawful use can constitute a qualifying use (or “actual use” to use the statutory language) for the purpose of listing an asset as an “asset of community value” pursuant to section 88 of the 2011 Act.”

The relevant test under section 88 (1) and (2) of the Localism Act 2011 is whether there is:

“…(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.”

The First-tier Tribunal had rejected in these terms Banner’s argument that it was not realistic to think that there could continue to be use of the field for recreational purposes:

“Given the long history of peaceable, socially beneficial (if formally unauthorised) use of the Field, and of the previous views of the owners, I do not consider that it is at all fanciful to think that, in the next five years, there could be non-ancillary use of the land, along the lines that pertained up to September 2014. The timing of the decision to fence the footpaths – coming hard upon the listing under the 2011 Act – strikes me as material. Also of significance is the uncertain present planning position of the land, where a recent application for the grazing of horses has been refused. Whilst I note Banner Homes’ current stated stance, it is not fanciful, given the history of the Field, to think that Banner Homes may well conclude that their relations with the local community will be best served by restoring the status quo or by entering into some form of licence arrangement with the Residents’ Association or similar grouping.”

The Upper Tribunal did not interfere with that finding and permission was not granted to appeal to the Court of Appeal on that point.

So did it matter that the recreational use was unlawful? Douglas Edwards QC for Banner sought to rely on the “in bonam partem” principle, “a principle of construction that presumes against the construction of a statutory provision so as to reward an unlawful action with a benefit, unless a contrary Parliamentary intention is revealed. Absent, he submits, a clear indication to the contrary, Parliament is not to be taken to have intended unlawful conduct to be rewarded by the grant of a right or benefit, as would occur in this case if the listing decision were to be maintained.”

The Court of Appeal rejected application of the principle, and any reliance on the “notorious” facts of Welwyn Hatfield Borough Council v Secretary of State (Supreme Court, 6 April 2011) (Mr Beesley and his hidden house). The “legislative intention is plainly that “actual use”, in this statutory context, should mean what it says“. Whilst she accepted that there may be other cases where the conduct is closer on the facts to those in Welwyn Hatfield, in cases such as this one, “it is hard to couple the word “unlawful” with the activities (or “use”) under consideration, let alone with any suggestion they are engaged in illicitly to obtain a benefit under the Scheme”. In this case Banner knew about the trespasses and indeed the local residents’ group had done much to preserve and enhance the open rural nature of the site.

Lord Justice Davis added:

“It has been an unfortunate consequence in this case that, by reason of the nomination, Banner Homes felt constrained, in order to protect its commercial interests as the land owner, to fence off the Field from the public footpaths. It would be a further unfortunate consequence if other land owners, perhaps holding land with a view to potential development in the future, likewise were to feel constrained to restrict public access to their land. That particular unfortunate result which has arisen in this particular case may prove to be an unintended consequence of the 2011 Act. But be that as it may, that can provide, of itself, no reason for departing from the clear statutory purpose behind, and the clear statutory language of, the 2011 Act.”

On the facts, one wonders why the local residents did not apply for registration of the land as a village green, a rather more high powered vehicle for opponents of development, or defenders of the status quo, than the humble ACV. No doubt one of you will tell me but I wonder whether it may be something to do with the “trigger events” introduced by the Growth and Infrastructure Act 2013 that close out the possibility of registration. I have a copy of the judgment of Deputy Judge David Elvin QC in Cooper Estates Strategic Land Limited v Wiltshire Council (5 July 2018), which is potentially important in the breadth of scope that is given to trigger event 4 (a development plan policy that “identifies the land for potential development“), but will hold off blogging on it until it appears somewhere online.

In the meantime, the procession of ACV listings will continue, much activity and some litigation, but to what end?

Simon Ricketts, 14 July 2018

Personal views, et cetera