ASSETS OF COMMUNITY VALUE GUIDE (5TH EDITION) CONTENTS 1. INTRODUCTION 4 2. CONCERNS 8 3. OPERATION OF REGIME TO DATE 13 4. QUALIFYING ASSETS 19 5. QUALIFYING CRITERIA 22 5.1 Current Actual Use 22 (a) Conditions 22 (b) Local community 23 (c) Social wellbeing/social interest 25 (d) Realistic continuation of community use 34 (e) Ancillary 38 (f) Building 43 5.2 User in the recent past 45 (a) Conditions 45 (b) Recent past 46 (c) realistic prospect 51 (I) General 51 (II) role of planning 53 (III) not financially viable 60 (IV) damage to the asset 66 5.3 specific points from appeals 67 (1) small sites 68 (2) car parks 68 (3) sites awaiting construction 69 (4) Land comprised in single title 69 (5) Use by trespassers 70 (6) use of easement 71 (7) Owner’s ECHR rights 72 1 (8) Part of nominated property not in use 72 (9) visual amenity 72 (10) motive 74 (11) loss arising from listing 75 (12) compensation evidence 75 (13) local clubs 75 (14) planning matters 76 (15) absence of ability to waive or modify ACV regime 77 (16) possible subsequent disposal by cig 78 6. EXCLUDED LAND 80 (a) operational land 80 (b) residences 81 (i) buildings which are or are not residences 81 (ii) unlawful use as a residence 82 (iii) hotels and other multiple occupation buildings 84 (iv) land connected with a residence 87 (v) mixed residential and other use 88 (c) other forms of safeguard 91 7. COMMUNITY NOMINATION 93 (a) nominators 93 (I) Eligibility 93 (2) Waiver or relaxation of eligibility requirements 96 (3) Qualifying Date 96 (4) Adoption of nomination 98 (5) Unincorporated body 98 (6) Neighbourhood forum 112 (7) Other nominators 112 (8) Approach by First-tier Tribunal 113 (9) CAMRA branches 113 (10) Nominator’s knowledge 116 (11) Motivation 116 2 (b) content of nomination form 118 (c) evidence 124 (d) assessment by authority 132 (e) timetable 135 (f) multiple nominations 142 (g) mandatory listing 143 (h) partial listing 143 (i) publicity 148 (j) renewed nominations 148 (k) duration of listing 149 (l) Land Registry restrictions 153 (m) Requests for information 153 8. MORATORIUM 156 (a) general operation 156 (b) relevant disposal 158 (c) publicising owner’s notification 160 (d) written request 160 (e) exempt disposals 161 (f) infringement 168 9. PLANNING 171 (a) Control of use 171 (i) general 171 (ii) permitted Development rights regime 172 (b) Material consideration 179 (i) planning permission refused 180 (ii) planning permission granted 182 (iii) planning permission for part only of listed asset 186 (iv) planning permission with alternative community facility 187 (v) adjoining land 190 (vi) planning application after removal of ACV listing 191 (c) NPPF 192 (d) Public houses 193 10. REVIEW and APPEAL 196 (a) nominator 196 (b) owner 197 (i) review 198 (ii) appeal 202 3 11. COMPENSATION 209 (a) Government intention 210 (b) Compensation pursuant to reg. 14 213 (i) general authorisation for compensation payment 213 (ii) specific classes of compensation 214 (iii) extent of loss recoverable 217 (iv) incurred 219 (v) causation 220 (vi) measure of loss 221 (vii) changes to PDR 222 (viii) in relation to the listed land 225 (ix) loss prior to listing 226 (x) loss after removal from the ACV list 227 (c) Claim 227 (d) Procedure 230 (e) Burden of compensation claims 231 12. FURTHER CHANGES 232 13. CONTINUING ISSUES 235 SCHEDULE 1 237 Section 88 237 SCHEDULE 2 240 Schedule 1 2012 Regulations 240 SCHEDULE 3 243 Section 95(5) 243 Regulation 13 244 Schedule 3 2012 Regulations 245 The Assets of Community Value Regime as at 3rd June 2017. 4 ASSETS OF COMMUNITY VALUE GUIDE BLIGHTING OF DEVELOPMENT OR BOOSTING THE LOCAL COMMUNITY Christopher Cant 9 Stone Buildings 1. INTRODUCTION The Community Right to Bid was introduced by Part 5 Chapter 2 of the Localism Act 2011 based on a non-statutory guide in the September 2011 ACV Policy Statement. It applies in England but not in Wales although consideration is now being given to introducing it there. It operates in relation to properties which qualify as “assets of community value”. The use of such terms perhaps suggests a greater right than is actually conferred. It seeks to strike a balance between landowners and local communities. In doing so it probably offends both sets of interests. It is neither a right to buy nor a pre-emption right (unlike in Scotland) but a right to bid leaving the landowner free to proceed with a disposal as the owner wishes. If a community group is interested a moratorium is imposed to allow the bid by a community group to be organised. This right is part of a parcel of community measures focused on by the 2011 Act – Community Right to Bid; Community Right to Challenge; Community Asset Transfer; Community Right to Reclaim Land; and Community Right to Build. This right seeks to address the concern that properties which are or have recently been used for the benefit of a local community are being developed and lost to the community. It does so by providing a procedure by which properties may be nominated to be added to a list of community assets maintained by the local authority and then allowing time in which a community group can arrange a bid to acquire the property if the owner intends to dispose of it. At present the period is six months from notification of the intention to dispose of the property if a community group expresses interest within six weeks of 5 notification of the decision to dispose of the property. Crucially the statutory right does not confer a right to compel an owner to accept such a community bid even if the bid equals or exceeds any other offer. Under the general law if the operation of the moratorium results in such an offer and the owner is a charity or trustee then the offer might have to be accepted. There is no statutory pre-emption right as under the Landlord and Tenant Act 1987. In the DCLG plain English Guide to the Localism Act (November 2011) it is stated that “Every town, village or neighbourhood is home to buildings or amenities that play a vital role in local life. They might include community centres, libraries, swimming pools, village shops, markets or pubs. Local life would not be the same without them, and if they are closed or sold into private use, it can be a real loss to the community.”1 The focus was on buildings and amenities which impact the local community if no longer available. To seek to counter such loss when an asset is listed “the Act then gives community groups the time to develop a bid and raise the money to bid to buy the asset when it comes on the market. This will help keep much-loved sites in public use and part of local life”2. The intended effect is to make “it easier for local people to take over the amenities they love and keep them part of local life.”3 In the Ministerial foreword to the non- statutory advice for local authorities (October 2012) it was stated that its aim is helping local authorities to implement the scheme and work with local communities “to protect the buildings and amenities which are of great local significance to the places where people live and work.” The reality is that the ACV regime has moved on from this in that the range of assets being listed has been greatly extended (see section 3 below) and the consequences of listing can do more than provide a breathing space for community groups to organise a bid (see in particular section 9 below on planning consequences). Understandably the number of community assets listed varies greatly from authority to authority. This is not just down to differences in the size of an authority’s area but is also dependent on factors such as the character of the authority’s area and the composition of the 1 Page 8 2 Page 9 3 Page 18 6 local residents. For example, Uttlesford DC has listed over 180 assets whilst Herefordshire Council has listed around 80 assets with nominations reported by a local newspaper to be still coming in including another six nominations recently by Ross on Wye Town Council (including the town’s Quaker meeting house, a local trail and Gresley village green) and further nominations by the local CAMRA branch. 7 2. CONCERNS The ACV regime raises concerns with each set of interests affected by it. (i) Property owner - from a property owner’s perspective there are two particular concerns if the owner’s property is listed as an asset of community value. One is that it will deter interest if the owner wishes to sell. This has been expressed as a particular concern by publicans and companies owning chains of public houses. With the removal of most rights under the Permitted Development Rights regime from all public houses it may be that an ACV listing will have less impact now on publicans. Applications are not infrequently made when the property is being marketed which is calculated to worry any owner. The other specific concern is that it will deter development of the property. In the Upper Tribunal Judge Levenson stated that listing under the 2011 Act did not itself prevent land being developed “but as a matter of planning policy any necessary permission is likely to be refused while land is listed.”4 This is not automatically the case as the criteria used in deciding planning applications is different to that applied with regard to nominations.