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

Planners & Pubs

“…That is the best of Britain and it is part of our distinctive and unique contribution to Europe. Distinctive and unique as Britain will remain in Europe. Fifty years from now Britain will still be the country of long shadows on county grounds, warm beer, invincible green suburbs, dog lovers and pools fillers and – as George Orwell said – “old maids bicycling to Holy Communion through the morning mist” and if we get our way – Shakespeare still read even in school. Britain will survive unamendable in all essentials.” (John Major, speech to Conservative Group for Europe, 2003)

The Government is determined that he is proved right about the warm beer at least: drinking establishments will have more protection against changes of use than almost any other use, once recent additions to the Neighbourhood Planning Bill come into effect. 

When the Bill returned to the Commons from the Lords on 28 March 2017, a Lords amendment that sought to remove permitted development rights from A4 uses (“public houses, wine bars or other drinking establishments (but not night clubs)”) was replaced by Commons amendment 22A  :

“(1)    As soon as reasonably practicable after the coming into force of this section, the Secretary of State must make a development order under the Town and Country Planning Act 1990 which:

 (a)    removes any planning permission which is granted by a development order for development consisting of a change in the use of any building or land in England from a use within Class A4 to a use of a kind specified in the order (subject to paragraph (c)),

(b)    removes any planning permission which is granted by a development order for a building operation consisting of the demolition of a building in England which is used, or was last used, for a purpose within Class A4 or for a purpose including use within that class, and

 (c)    grants planning permission for development consisting of a change in the use of a building in England and any land within its curtilage from a use within Class A4 to a mixed use consisting of a use within that Class and a use within Class A3.”

The Bill is likely to receive Royal Assent in late April/early May 2017 and, if the clause survives (there is a “ping pong” procedure on 26 April where the Lords decide whether to accept it), we will need to see how quickly (1) it comes into force and (2) the amended development order is made. The provisions will not affect development which is carried out pursuant to the current General Permitted Development Order before the amended development order comes into force. 

Whilst apparently supported by all parties and (of course) by CAMRA,  it is noteworthy that the provision (1) has been shoehorned into a Bill which covers unrelated matters and (2) has not been the subject of consultation – seldom a recipe for good legislation. 
This is yet another area where successive Governments have been constantly fiddling. 
Amendments to the Use Classes Order in 2005 split the old use class A3 into:
 — A3 Restaurants and cafés – For the sale of food and drink for consumption on the premises – restaurants, snack bars and cafes

— A4 Drinking establishments – Public houses, wine bars or other drinking establishments (but not night clubs)

This was primarily to prevent restaurants turning into drinking places rather than to provide any protection for pubs. Amendments to the General Permitted Development Order included a permitted development right to change from A4 to A3. 
The assets of community value regime introduced by the Localism Act 2011 has been used energetically in relation to pubs in particular, with over 850 pubs registered by 2015 (and much encouragement and cheerleading by Government) but, despite being time consuming for communities and authorities alike, was largely toothless until the changes introduced by the Town and Country Planning (General Permitted Development) (England) Order 2015  pursuant to which, in relation to any drinking establishment, the permitted development rights to change use to A1 or A2, or to demolish, do not apply if it is registered as an asset of community value. Even if it not registered, there is a prior approval requirement to serve as a check as to whether any nomination for registration has been received. 
The Carlton Terrace saga was a salutory lesson for owners and developers. Prior approval for demolition wasn’t obtained and by a 6 July 2016 decision letter  an inspector upheld Westminster City Council’s enforcement notice requiring the pub to be rebuilt. Isn’t it just genuinely “community” pubs, often with heritage value, such as the Carlton, that deserve particular protection?
More recently we have also seen increasingly widespread use by local planning authorities of Article 4 Directions to remove permitted development rights in relation to pubs (most recently for example Southwark Council, which resolved on 7 March 2017 to make a direction).
So what is the justification for further changes?
Gavin Barwell in a debate in the House of Commons on 28 March 2017 explained the Government’s proposed amendments to the Bill as follows:

“I wish to turn to permitted development rights for the change of use or demolition of pubs, and to update the House on the steps we are taking in respect of the permitted development rights for the change of use from office to residential. First, I will speak to the Government amendment in respect of permitted development rights for the change of use or demolition of pubs. Let me start by assuring hon. Members that we have listened to both Houses and to the support that Members have expressed for valued community pubs. They will see that we have accepted the principle of the amendment introduced into the Bill in the other place. Our amendments in lieu therefore set out the detail of how we will take that principle forward.



The amendment commits us to update the Town and Country Planning (General Permitted Development) (England) Order 2015 to remove the permitted development rights for the change of use or demolition of drinking establishments, including pubs. In tabling the amendments in lieu, I reassure hon. Members that we have continued to engage through the passage of the Bill with interested Members and bodies, such as the Campaign for Real Ale and the British Beer and Pub Association. I can confirm that we will remove the permitted development rights to change to a restaurant or cafe, financial or professional service, or a shop. We will also remove the permitted development rights to change to an office for up to two years and to a school for a single academic year.



In making these changes, the Government are keen to avoid any potential unintended consequences. As such, we are clear that the best way to support pubs is to retain the A4 “drinking establishments” use class for pubs, wine bars and other types of bars. Doing so will allow pubs to innovate and intensify their use, for example by opening a pub garden or starting to provide live music, without facing a risk that this will be a change of use that requires a full planning application. Our intention in retaining the A4 use class is to allow pubs to develop within this use class without having to seek planning permission, thus avoiding unintended consequences, and unnecessary cost and bureaucracy. “




“The changes in respect of permitted development rights for the change of use or demolition of pubs mean that in future a planning application will be required in all cases. This will also be the case for premises in mixed use, for example as a pub and a restaurant. This addresses the long-standing call that there should be local consideration and an opportunity for the community to comment on the future of their local pub. It is important that local planning authorities have relevant planning policies in place to support this decision taking. Once we have made the changes, the current provisions, which remove permitted development rights for the change of use or demolition of pubs that are listed as assets of community value, are no longer necessary and will fall away.”



 “Importantly, we have listened to the points made about the need for pubs to be able to expand their food offer in order to meet changing market need and support their continued viability—the issue that my right hon. Friend the Member for Wokingham is concerned about. Therefore, at the same time as getting rid of the permitted development rights that allow for demolition or change of use, we will introduce a new permitted development right to allow drinking establishments to extend their food offering so as to become a mixed A4 pub and A3 restaurant. The Government believe that this will ensure that pubs have nothing to fear when it comes to requiring planning permission or enforcement against the change of use where a pub is extending its food offer. This will give them vital additional flexibility.”
Of course the measure won’t just apply to “valued community pubs” but to all drinking establishments that fall within use class A4. Is that proportionate?

The proposal that there should be deemed permission to change from A4 to a mixed A3/A4 use has attracted some criticism. Whilst there does need to be flexibility to allow dining pub type operations, is there the risk of opening the door to uses which are actually A3, as a stepping stone to A1 or A2? The concern is overstated in my view but these use distinctions are increasingly difficult in practice. 
Indeed, for the bigger picture in relation to changing trends in drinking and eating, the House of Lords Select Committee report on the Licensing Act 2003 dated 4 April 2017 makes fascinating reading. Who knows when Parliament will have the time to set matters right but the report is a sustained attack on the 2003 licensing reforms and the abject failure of that legislation to achieve its objectives:
“During the passage of the Licensing Bill one of the much over-used expressions was that it was going to change the UK to a “café culture”, by which was meant the imagined Continental habit of modest and leisurely consumption of alcohol at any civilised hour, preferably in clement weather. The fact that this has not materialised seems to have come as no surprise to any of our witnesses, nor to us; it takes more than an Act of Parliament to change the habits of generations, and this country’s climate was never going to favour such a change. The café culture which has grown up takes a rather different form and is confined to town centres, where between 2011 and 2016 a fall of 2,000 in the number of bars, pubs and night clubs has been accompanied by an increase of 6,000 in the number of cafés, fast food outlets and restaurants.”
To what extent is the loss of drinking establishments down to our planning regime and how much is it down to consumer trends? Who is going to operate – and drink in – all of these protected pubs?
At the moment of course licensing is a separate world from planning (and from planners and planning lawyers). Woe betide the objector who raises an issue in the wrong forum. 
For those of us who may wonder from time to time whether the planning system is perhaps a little unpredictable, there are some real horror stories in the report as to the operation of local authority licensing committees. Indeed the Select Committee advocates that the present procedures be replaced by something much more aligned with our current planning system, with licensing committees merged with planning committees and appeals to planning inspectors:
“Previous committees of this House conducting scrutiny of statutes have found that the Act in question is basically satisfactory, but that its implementation is not. In the case of the Licensing Act our conclusion is that, while the implementation of the Act leaves a great deal to be desired, to a large extent this is caused by an inadequate statutory framework whose basic flaws have, if anything, been compounded by subsequent piecemeal amendments. A radical comprehensive overhaul is needed, and this is what our recommendations seek to achieve.”

“For five hundred years the licensing of persons and premises was the task of justices of the peace. Those who devised the new policy in 2000 thought, rightly, that this was not a task for the judiciary but for local administration. If they had looked to see how local authorities regulate the responsible use of land in other situations, they would have seen that the planning system, already well established and usually working efficiently, was well placed to take on this additional task. 

Instead the legislation established new licensing committees for each of 350 local authorities. The councillors sitting on these new committees, and the staff assisting them, had no experience of the complex new law they were administering. Our evidence shows that, while most members of licensing committees no doubt attempt to apply the law justly and fairly, too often standards fall short. Many councillors have insufficient training; all should undertake compulsory training. We were told of cases of clear inadequacies in fulfilling their functions, resulting in a haphazard decision-making process. 

The planning system has its detractors, but planning committees are well established, with better support from experienced staff. Our main recommendation is that there should be a trial merger of licensing committees with planning committees. To be clear, we are not recommending a merger of licensing law and planning law; we are suggesting that the councillors who sit on planning committees, using the same procedure and practice and with the same support as they already have, should deal with proceedings under the Licensing Act in the same way that they already deal with planning legislation. 

Appeals from decisions of licensing committees now go to the same magistrates who, until 2005, dealt with the applications. This not only defies logic; it leads to unsatisfactory results, as many of our witnesses have testified. Planning appeals go to inspectors who have the training for this, and for whom this is a full time job. We recommend that they should hear licensing appeals as well. ”

Trebles all round!

Simon Ricketts 13.4.17

Personal views, et cetera