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

We Are The Village Green Preservation Society

“God save Donald Duck, vaudeville and variety

We are the Desperate Dan Appreciation Society

God save strawberry jam and all the different varieties

(R. Davies)

There have been two important cases in the last month where the courts have considered the circumstances in which land may be registered as a village green. The subject matter sounds quaint but registration has massive consequences for developers and landowners, effectively sterilising permanently the land that is registered, to protect the uses by the relevant neighbourhood that were the basis of the registration application. Of course, there is another side to the coin: registration also provides a backstop for neighbourhoods to ensue that there is legal protection for rights that have arisen, by way of customary use rather than in a documented way, over time. Given other protections for communities by way of the planning process and the Localism Act 2011’s asset of community value process (albeit much weaker in effect) – and the many years that communities have now had to stake their claims – is there really still a place for this sledgehammer of a concept? Or is the need as great as ever? I am sure you will make your views known in reactions to this post.

The potential scope of such applications can be wide, for instance the application (my idea, I confess) to register as a village green the undercroft area used by skateboarders beneath the Queen Elizabeth Hall on London’s south bank (an application which, together with litigation as to its validity, was withdrawn in the light of agreement that was subsequently reached as to the future use of the area), or the application to register six hectares of a beach in Newhaven (of which more later).

Before dealing with the cases, I need to set out some basic legal context.

Section 15 of the Commons Act provides that any person may apply to the relevant commons registration authority to register land as a town or village green “if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years“. If the use has now ceased, the application must be made within one year of cessation if the land is in England and within two years if the land is within Wales. For the purposes of calculating the 20 years “any period during which access to the land was prohibited to members of the public by reason of any enactment” is to be disregarded.

In an attempt by Parliament to prevent the use of village green applications to seek to thwart or at least delay development proposals, the Growth and Infrastructure Act 2013 included a series of trigger events. If a trigger event has occurred, an application cannot be made. They include the making of a planning application in relation to the land and publication of the “draft of a development plan document which identifies the land for potential development“. For each trigger event there is a corresponding terminating event, for instance, in relation to that first one, withdrawal of the application, its refusal without a successful appeal, or the revocation, quashing or expiry of the resulting permission.

Whilst the 2006 Act refers to “town or village green” there is no legal distinction, which is why for ease, and to get down with the Kinks, I just refer to the latter.

There has been much litigation as to the precise meaning of many of the words and phrases within section 15, including: “significant number of the inhabitants“, “locality, or of any neighbourhood within a locality“, “as of right“, “lawful sports and pastimes” and “any period during which access to the land was prohibited to members of the public by reason of any enactment“. The Supreme Court, in R (Newhaven Port and Properties Limited) v East Sussex County Council (Supreme Court, 25 February 2015), has also held that, whilst land in public as well as private ownership can be registered as a village green, section 15 cannot be interpreted so as to enable registration if registration would be incompatible with any other statutory function to which the land was to be put (in legal shorthand, the “statutory incompatibility” test).

Contested applications are usually determined following an inquiry held by an examiner (often a barrister) appointed by the relevant commons registration authority (usually the relevant county council, unitary authority or London borough). The examiner makes recommendations to the authority which it may or may not accept. In some “pilot” areas, applications can be determined by inspectors. Challenges on points of law fall to be determined by the High Court.

So now to the latest two cases.

R (Lancashire County Council) v Secretary of State (12 April 2018) followed a hearing by the Court of Appeal of two separate cases which were conjoined on appeal:

⁃ in the first one, Lancashire County Council, as education authority, faced applications for registration as a village green of five areas of land it owns next to one of its primary schools. The inspector appointed to determine the application concluded (after a hearing lasting eight days) that four of the five areas should be added to the register. The County Council challenged the registration by way of judicial review, lost in front of Ouseley J and appealed.

⁃ in the second one, NHS Property Services Limited faced an application for registration as a village green of land it owns next to Leatherhead Hospital. The NHS persuaded the inspector (after a five day inquiry) to recommend to Surrey County Council that the application be refused on the ground of “statutory incompatibility“, amongst others. The county council had rejected the recommendation and registered the land. The NHS succeeded before Gilbart J in quashing the registration on the basis that the council had failed to consider properly the question of “statutory incompatibility”. The county council appealed.

The two cases gave rise to a number of overlapping legal issues, including the extent of application of the “statutory incompatibility” test. After all, Lancashire County Council holds its relevant land for educational purposes and the NHS (or rather, at the time of the application, the relevant primary care trust) held its land for the provision of primary medical services. Were these statutory purposes sufficiently specific to trump the registration of the land as a village green?

The Court of Appeal reviewed the principles set out by the Newhaven case by the Supreme Court, where the court had found that there was an incompatibility between the use of the harbour company’s statutory functions in relation to the harbour and registration of the beach as a village green. The Court of Appeal distinguished this from the Lancashire position:

“41. The statutory powers and duties relied upon here were general in their character and content, comprising a local education authority’s functions in securing educational provision in its area. There was no statutory obligation to maintain or use the land in question in a particular way, or to carry out any particular activities upon it. The basis of the asserted incompatibility between section 15 of the 2006 Act and the provisions of the Education Acts on which the county council sought to rely could only be that the carrying out of its general obligations to provide schools in its area – its compliance with a “target duty” – might be or become more difficult or less convenient, not that it would be prevented from carrying out any particular statutory function relating specifically to the land whose registration as a town or village green had been applied for. There was no statutory duty to provide a school on the land, or to carry out any particular educational activity on it. There were no proposals to develop it for a new school. The fact that the county council, as owner of the land, had statutory powers to develop it was not sufficient to create a “statutory incompatibility” (see paragraph 101 of the judgment of Lord Neuberger and Lord Hodge in Newhaven Port and Properties). Nor was the fact of its having been acquired and held for such purposes – if, indeed, it was. The relevant statutory purposes were capable of fulfilment through the county council’s ownership, development and management of its property assets as a local education authority without recourse to the land in question – notwithstanding that, on its own contention, it had owned that land for “educational purposes” for many years. The registration of the land as a town or village green would not be at odds with those statutory purposes.”

The Court of Appeal reached the same conclusion in relation to the NHS appeal:

“45. The statutory functions on which NHS Property Services relied, and the statutory purposes underlying them, were also general in character and content: the general functions of a clinical commissioning group to provide medical services to the public, and, under section 3(1) of the National Health Service Act 2006, the duty to arrange for the provision of hospital accommodation, as well as various other healthcare services and facilities. The registration of the land as a green under section 15 of the 2006 Act would not, in itself, have any material effect on NHS Property Services’ function under section 223(1) of the National Health Service Act 2006, to hold land for the NHS Surrey Downs Clinical Commissioning Group. Nor would it prevent the performance by the clinical commissioning group, or any other NHS body, of any of statutory function relating specifically to the land in question. Beyond their general application to land and property held by NHS Property Services, none of those statutory functions could be said to attach in some specific way to this particular land. Parliament had not conferred on NHS Property Services or on the clinical commissioning group, any specific power, or imposed any specific duty, in respect of the land whose registration was sought. There was, for example, no statutory duty to provide a hospital or any other healthcare service or facility on the land.

46. As in the Lancaster case, therefore, the circumstances did not correspond to those of Newhaven Port and Properties. The land was not being used for any “defined statutory purposes” with which registration would be incompatible. No statutory purpose relating specifically to this particular land would be frustrated. The ownership of the land by NHS Property Services, and the existence of statutory powers that could be used for the purposes of developing the land in the future, was not enough to create a “statutory incompatibility”. The clinical commissioning group would still be able to carry out its statutory functions in the provision of hospital and other accommodation and the various services and facilities within the scope of its statutory responsibilities if the public had the right to use the land at Leach Grove Wood for recreational purposes, even if the land itself could not then be put to use for the purposes of any of the relevant statutory functions. None of those general statutory functions were required to be performed on this land. And again, it is possible to go somewhat further than that. Although the registration of the land as a village green would preclude its being developed by the construction of a hospital or an extension to the existing hospital, or as a clinic or administrative building, or as a car park, and even though the relevant legislation did not include a power or duty to provide facilities for recreation, there would be nothing inconsistent – either in principle or in practice – between the land being registered as a green and its being kept open and undeveloped and maintained as part of the Leatherhead Hospital site, whether or not with access to it by staff, patients or visitors. This would not prevent or interfere with the performance of any of the relevant statutory functions. But in any event, as in the Lancaster case, the two statutory regimes were not inherently in conflict with each other. There was no “statutory incompatibility“.

So we take it from this that to trump village green registration the statutory functions for which land is held must pretty specific, and the carrying out of them must be inherently inconsistent with the use of the land for the purposes for which village green registration is sought.

In the Lancashire case, the county council also argued, unsuccessfully, that the relevant local ward could not comprise the “locality” because it had been subject to boundary changes over the 20 years, as well, also unsuccessfully, that there should be a sufficient geographical spread of users across the locality.

Result: sterilisation of land that could one day have been used to extend a primary school and/or provide additional medical facilities respectively.

R (Cotham School) v Bristol City Council (Sir Wyn Williams, 3 May 2018) concerned an application for registration as a village green of 22 acres of land owned by Bristol City Council (which is also the relevant commons registration authority).

Large parts of the land are laid out as playing fields. “There have been football and rugby pitches on the land in the winter and a cricket field and an athletics track in the summer for many years. Until about 2000 these pitches were used as school playing fields for Fairfield School; thereafter Cotham School became the user of the pitches. Over many years the pitches were also used by local sports clubs under arrangements made with the schools and/or the local education authority.” The land is extensively used for dog walking and informal recreation.

The inspector considering the registration application recommended, after an inquiry lasting nine days, that the application be rejected because the user had not been “as of right“, in view of signs warning people not to trespass on the playing fields and that the land was private. However, following lobbying by the applicant and others, the council disagreed and resolved that the land be registered, considering that the signs were not sufficiently clear. The school challenged the decision.

The court’s judgment usefully contains a detailed review of case law as to the meaning of “as of right“. The court concluded that the inspector was correct “when he concluded that the use of land by local inhabitants would be made contentious by the erection of sufficient and suitably placed signs which were visible to users of the land and which had been seen by a significant number of persons using the land.” The council committee had no basis for coming to a different conclusion without a proper analysis of the facts, which they had not carried out as part of their decision making. Nor was the council committee’s reasoning adequate.

Amongst the other grounds of challenge was an assertion that there were in any event periods when local inhabitants were excluded from the land, when organised sports were being played as well as during formal sports days. The inspector did not agree that this in itself would have prevented registration and considered that the use by local residents and the sporting uses co-existed, following the approach of the Supreme Court in R (on the application of Lewis) v Redcar and Cleveland BC (No 2) (3 March 2010) (a case about a golf club).

Finally, the question of “statutory incompatibility” was considered, but in the light of the recent ruling of the Court of Appeal in the other case considered in this post, the court determined that the inspector was correct when he “concluded that the duties and functions of the landowner (as education authority in respect of educational provision) can be carried out – albeit with difficulty (including financial difficulty) in some instances – even if registration takes place.” A specific issue as to whether registration would be incompatible with a restriction in the Academies Act 2010 as to the disposal of land was side-stepped on the basis that registration was not considered by the court to amount to a disposal for the purposes of the Act.

So the court found that the council’s decision to register the land was unlawful. It has now called for submissions by the parties as to what should be the relief, ie whether the decision to register should be quashed, but flagged that it will be “a very difficult task” to persuade the court that there should be no relief.

As a post script I would note that another issue frequently arising in applications for village green registration is whether registration can succeed in relation to land which is public highway. Whilst there is no specific statutory restriction and no specific judicial precedent, in any event, the lawful sports or pastimes relied upon would need to be such as would not be inconsistent with use of the highway by right. For example in a report to Cheshire East Council dated 25 July 2017 in relation to land in Somerford, an inspector (barrister Timothy Jones), after a detailed review of the case law, concluded that the activities relied upon by the applicant in that case, “equine, informal games, overnight camping, dog walking and training, jogging, collecting wild fruit, conkers and fungi, observing nature and stargazing” were all ones that could lawfully be carried out on a public highway in any event:

None of the activities are of a sort that are unexpected on a highway verge, a nuisance, an impediment to normal use of the highway or otherwise unreasonable. It would be regrettable if highway authorities had to stop such activities in order to prevent verges becoming a village green.”

So, what does the future hold for village green applications? The trigger events introduced by the 2013 Act have certainly constrained their use in relation to land where development is contemplated, although I am sure that we will see litigation as to, for instance, how specific a development plan policy needs to be in order to identify land for potential development. But applications will continue to be made, particularly where access to land by the public has not been properly controlled, or allowed on a properly documented basis – and recent cases have shown that underused public sector land (precisely those categories of land which the Government is keen to see developed for housing and other uses) is particularly vulnerable.

Do we have the balance right? Are the activities by local inhabitants that are often relied upon really those which were intended to be protected? The 2006 Act is the most recent statutory expression of a legal framework which has its basis in customary rights over open spaces in towns and villages that historically were used for communal activities. Has there been an element of “mission creep“, and a lack of political attention, when we look at the list of activities relied upon in the Somerford case (not uncommon for these applications), or consider the impact on publicly owned land affected by the Lancashire and Leatherhead applications that were the subject of the Court of Appeal’s ruling last month?

That Kinks song continues, aptly:

Preserving the old ways from being abused

Protecting the new ways, for me and for you

What more can we do?

Simon Ricketts, 5 May 2018

Personal views, et cetera

Photo courtesy of the Bristol Post