The Localism Act 2011 requires local authorities to list of buildings or other land of community value.
Section 88(1) and (2) of the 2011 Act provides a building or other land is land of community value if in the opinion of the authority:
– in the recent past or currently the non-ancillary use of the building or other land 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 the social wellbeing or social interests of the local community (whether or not in the same way).
An asset placed on the list, will usually remain on it for five years.
After listing an owner intending to sell must give notice to the local authority.
A community interest group then has six weeks to ask to be treated as a potential bidder.
If it does, the sale cannot take place for six months.
In that “moratorium”, the community group may suggest an alternative plan.
At the end of the moratorium, it’s the owner’s decision whether the sale goes through, to who and for how much.
If an owner loses money in consequence of the asset being listed, there are arrangements for the local authority to pay compensation.
In the First-tier Tribunal (General Regulatory Chamber) case of Banner Homes Ltd v St Albans City and District Council & Anor  a field had been used by local residents for recreational use, such as walking, exercising dogs, informal children’s play and photography of local flora and fauna.
The field was listed by the council as an asset of community value under the Localism Act 2011.
Following the listing, Banner Homes erected a wire fence along the entire length of the on-site footpaths, interspersed with signs stating “private land no unauthorised access”.
Also, Banner Homes unsuccessfully applied to the council for planning permission to change the use of the field to the keeping of horses.
Banner Homes’ solicitors requested a review of the decision to list the field as an asset of community value. That review took place. The council decided to maintain the listing.
Banner Homes appealed that decision to the First-tier Tribunal.
The tribunal said the mere visual observation of things growing or otherwise present on land from across a fence was not what Parliament had in mind, in enacting the 2011 Act. The use of the word “actual” in section 88 “strongly suggests an intention that ‘physical’ use was intended”.
However the phrases “actual current use” and “actual use” in section 88 of the 2011 Act did not necessarily mean actual legal use.
The tribunal said the requirement that the use of the land must further social wellbeing or social interests would rule out many unlawful activities, for the simple reason that unlawful activities are unlikely to satisfy the tests of furthering social wellbeing/interests.
The tribunal said premises used for “raves”, at which illegal substances are consumed, violence is prevalent and noise nuisance frequent, would not satisfy section 88.
But the tribunal declined to interpret section 88 so as to insert the word “lawful” after “actual”. A particular technically unlawful use of land was not of itself outside the section.
So it did not matter that the public’s use of the land might have been technically trespassing.
Whilst Banner Homes had fenced the land in the wake of the listing, the unsuccessful planning application for horses may lead Banner Homes to conclude that their relations with the local community would best be served by restoring the status quo or by entering into some form of licence arrangement with the Residents’ Association or some similar grouping.
So it was not unrealistic to think that there could continue to be non-ancillary use of the building or other land which would further the social wellbeing or social interests of the local community.
The tribunal upheld the listing.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.