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Assets of Community Value Guide (6Th Edition)

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Assets of Community Value Guide (6Th Edition) ASSETS OF COMMUNITY VALUE GUIDE (6TH EDITION) CONTENTS 1. INTRODUCTION 5 2. CONCERNS 9 3. OPERATION OF REGIME TO DATE 17 4. QUALIFYING ASSETS 23 5. QUALIFYING CRITERIA 26 5.1 Current Actual Use 27 (a) Conditions 27 (b) Local community 27 (c) Social wellbeing/social interest 31 (d) Further social welfare or social interest 43 (e) Realistic continuation of community use 45 (f) Ancillary 48 (g) Building 54 5.2 User in the recent past 56 (a) Conditions 56 (b) Recent past 57 (c) realistic prospect 62 (I) General 62 (II) role of planning 66 (III) not financially viable 74 (IV) earlier failure to acquire by community interest group 81 (V) condition of the asset 81 (VI) Summary 83 5.3 specific points from appeals 84 1 (1) small sites 84 (2) car parks 85 (3) sites awaiting construction 86 (4) Land comprised in single title 86 (5) Use by trespassers 87 (6) use of easement 91 (7) Owner’s ECHR rights 92 (8) Part of nominated property not in use 92 (9) visual amenity 92 (10) motive 94 (11) loss arising from listing 95 (12) compensation evidence 95 (13) local clubs 96 (14) planning matters 97 (15) absence of ability to waive or modify ACV regime 98 (16) possible subsequent disposal by cig 99 6. EXCLUDED LAND 100 (a) operational land 100 (b) residences 101 (1) buildings which are or are not residences 101 (II) unlawful use as a residence 102 (III) hotels and other multiple occupation buildings 106 (IV) land connected with a residence 110 (V) mixed residential and other use 111 (c) other forms of safeguard 114 7. COMMUNITY NOMINATION 116 (a) nominators 117 2 (I) Eligibility 117 (2) Waiver or relaxation of eligibility requirements 119 (3) Qualifying Date 120 (4) Adoption of nomination 122 (5) CAMRA Limited 122 (6) Unincorporated body 125 (7) Neighbourhood forum 139 (8) Other nominators 139 (9) Approach by First-tier Tribunal 139 (10) CAMRA branches 140 (11) Nominator’s knowledge 143 (12) Motivation 143 (b) content of nomination form 145 (c) evidence 151 (d) assessment by authority 161 (e) timetable 164 (1) Eight week limit 164 (2) Notification of owner 164 (3) Representations by owner 166 (4) Failure to meet eight week deadline 167 (5) Impact of owner’s insolvency 171 (f) multiple nominations 172 (g) supplemental information 173 (h) mandatory listing 174 (i) partial listing 174 (j) publicity 178 (k) renewed nominations 179 (l) duration of listing 180 (m) expiry of five year listing 184 (n) Land Registry restrictions 185 (o) Requests for information 185 8. MORATORIUM 188 (a) general operation 188 (b) relevant disposal 191 (c) publicising owner’s notification 192 (d) written request 192 (e) exempt disposals 193 (f) infringement 201 3 9. PLANNING 205 (a) Control of use 205 (i) general 205 (ii) Permitted Development Rights regime 205 (1) General 206 (2) public houses April 6th 2015 to May 23rd 2017 209 (3) Public houses after May 23rd 2017 211 (4) Article 4 Directions 213 (b) Material consideration 214 (i) planning permission refused 216 (ii) planning permission granted 220 (iii) planning permission for part only of listed asset 228 (iv) planning permission with alternative community facility 232 (v) adjoining land 234 (vi) planning application after removal of ACV listing 236 (c) NPPF 236 (d) Council’s individual planning policies 238 (e) Public houses 239 10. REVIEW and APPEAL 241 (a) nominator 241 (b) owner 243 (i) review 244 (ii) appeal 248 11. COMPENSATION 257 (a) Government intention 258 (b) Compensation pursuant to reg. 14 258 (i) general authorisation for compensation payment 261 (ii) specific classes of compensation 262 (a) delay due to moratorium 262 (b) cost of successful appeal 264 (iii) extent of loss recoverable 266 (iv) incurred 268 (v) causation 269 (vi) measure of loss 270 (vii) changes to PDR 271 (viii) in relation to the listed land 275 (ix) loss prior to listing 275 (x) loss after removal from the ACV list 276 (c) Claim 277 (d) Procedure 281 4 (e) Burden of compensation claims 282 12. FURTHER CHANGES 283 13. CONTINUING ISSUES 286 SCHEDULE 1 288 Section 88 288 SCHEDULE 2 291 Schedule 1 2012 Regulations 291 SCHEDULE 3 294 Section 95(5) 294 Regulation 13 295 Schedule 3 2012 Regulations 296 The Assets of Community Value Regime as at 9th June 2018. 5 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 there1. It operates in relation to properties which qualify as “assets of community value”2. 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 but the group has no ability to compel the owner to negotiate. Lady Justice Sharp when describing the ACV regime in Banner Homes v St Albans City and District Council stated3 that “the Scheme therefore confers a right to bid (to a local community group as defined in the 2011 Act), but not a right to buy.” 1 There was a consultation in 2015 which the Minster for Communities and Tackling Poverty said had demonstrated a “lively interest” in the introduction of the ACV regime in Wales. As yet this has not happened. There is now an e- petition for the introduction of the ACV regime but so far it has not received much support. 2 For an audio visual explanation of the operation of the ACV regime South Cambridgeshire DC has with considerable imagination produced two videos by “Inquisitive Penguin” to be found at https://www.scambs.gov.uk/community- right-bid. A step by step guide has been produced by My Community which can be found at https://mycommunity.org.uk/take-action/land-and-building-assets/step-by-step/ 3 Para. 11 [2018] EWCA Civ 1187 6 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 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.”4 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”5. 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.”6 In the Ministerial foreword to the non- statutory advice for local authorities (October 2012) it was stated that its aim is helping local 4 Page 8 5 Page 9 6 Page 18 7 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).
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