Community Right To Bid Determination Form Localism Act 2011 The Assets of Community Value (England) Regulations 2012 Determination by Director of Place

Nomination Reference: BL\2021\ENQ\09337

Date of Nomination: 11th April 2021 Site Address: Land to the south of Kingsley Close, Feniscowles, Blackburn Land/Property Land – Green Environmental Space Description: The public open space that was provided as part of the original Kingsley Close development. The area is illustrated as such in the initial property brochure for Kingsley Close, which can be found in the supporting document ‘Local Green Space Designation Application – Kingsley Close’. The site is bounded by Kingsley Close to the north, the Leeds and Liverpool Canal to the west, and Stockclough Lane to the east.

Asset Owners: Name & Address of Asset Connection to the asset Owner Dorbcrest Homes Ltd, Freeholder The Old Carnegie Library, 361 Ormskirk Road, Wigan WN5 9DQ

Nominating Organisation: Name of Organisation: Proof of eligibility to make a community Livesey Parish Council nomination: Type of Organisation: The Parish Council is a statutory body that is Parish Council entitled to make an application for Asset of Community Value status. The land is within the Parish Council boundaries and the Parish Council has been engaged with local residents about the future of the land.

Summary of Reasons given by the Nomination Organisation as to why the asset should be identified to qualify as an asset of community value:

An extract from the submission is below, together with the location plan:

1 Copy of photograph taken by residents relating to the use of the land

Extract from Submitted Location Plan:

2 Copy of Title Plan : LA 907235:

3 Copy of Title Plan No: LAN214719

Description of the Nominated Asset and Current Ownership

The Nominated Asset is an area of land to the south of Kingsley Close, Feniscowles, Blackburn. The public open space that was provided as part of the original Kingsley Close development. The area is illustrated as such in the initial property brochure for Kingsley Close, which can be found in the supporting document ‘Local Green Space Designation Application – Kingsley Close’

4 This area of land is Freehold and is owned by Dorbcrest Homes Ltd, The Old Carnegie Library, 361 Ormskirk Road, Wigan WN5 9DQ – as stated on the submitted nomination form.

Evidence that the Nominator is eligible to make a nomination

The Parish Council is a statutory body that is entitled to make an application for Asset of Community Value status within Blackburn With Darwen. The land is within the Parish Council boundaries and the Parish Council has been engaged with local residents about the future of the land.

Land Registry Information

The land is registered in the administrative area of Blackburn with Darwen.

Ordnance Survey map reference 100019493

Land Registry Title Numbers: LA907235 & LAN214719 Title Plan of Nominated Asset, with boundaries clearly marked in pink Title Plan Number Title Plan Date

Our Requirements

The land is wholly within the area of Blackburn with Darwen Borough Council.

The land’s main use has always been, since the Kingsley Close development was completed in 2002/2003, for the social wellbeing and social interests of the local community. This is supported by the fact that the creation of the open space was necessary due to the Local Plan policies of BwDBC at the time. The land continues to be used by the local community for their social wellbeing and interests. Ample evidence of all this is included in the supporting document ‘Local Green Space Designation Application – Kingsley Close’

The land does not fall within one of the regulatory exemptions.

Supporting information submitted on behalf of the residents of Kingsley Close:

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Response to the Consultation:

Council’s Strategic Growth Planning Policy Manager 12th April 2021:

We agreed that this site met the criteria for a Local Green Space (LGS) based on the submission last year – clear evidence was provided on its historical use and that the land was demonstrably special to the local community. This is why it was one of the 2 LGS’s identified in the Reg18 Consultation Draft Local Plan (Policy PAP3). I would just point out it isn’t formally an LGS until the new plan is adopted but there do not appear to have been any objections to this in the recent consultation so its highly likely to proceed to adoption. I have no specific further comments on the ACV application itself.

10 The Ward Councillors for Livesey with Pleasington, together with the Chair of the Planning & Highways Committee and Executive Member for Place were notified regarding the nomination on the 12th April 2021. No comments have been received.

All of the residents of Kingsley Close were notified of the nomination on the 12th April 2021. The following comments were received:

Mr & Mrs Morley, 15th April 2021:

We are residents of Kingsley Close who live very close to the land south of Kingsley Close.

We would like to offer our full support for the application for Asset of Community Value status requested by Livesey Parish Council.

Mr & Mrs Morley

Mr & Mrs Hindle, 25 Kingsley Close, 18th April 2021:

Mr & Mrs Parkinson, 33 Kingsley Close, 20th April 2021:

We would like to inform you of our full support in the recent application for the above piece of land to be included on the council’s list of Assets of Community Value.

Yours faithfully

Neil & Ashley Parkinson. 33 Kingsley Close.

Amanda Barnes, 31 Kingsley Close, 3rd May 2021:

In relation to the nomination request made by the “Livesey Parish Council” to include the land to the south of Kinglsey Close on the Council’s List of Assets of Community Value.

I support this nomination.

11 Ian Barnes, 31 Kingsley Close, 3rd May 2021:

I am writing to confirm my support for the Livesey Parish Council’s application to register the Public Open Space (POS) to south of Kingsley Close as an Asset of Community Value. It is already registered as Protected Local Green Space, but if this further protects it from unscrupulous developers then it gets my backing.

Personally, as resident I feel that BwD Borough Council have let us down with the POS to the south of Kingsley Close. For reasons that have yet to be adequately explained, the Council failed to adopt the land and this has allowed Dorbcrest to apply to build yet more houses on an area of land that is highly valued by the local community. Bearing in mind, that when we moved into this new development we were all given an assurance that the POS land would be adopted and maintained by the Council.

I see the Asset of Community Value registration as another layer of protection. But, the Council need to address the longer term issue of ownership and maintenance. To me, they need to make good on their promise to adopt the land, even if this comes at a cost. But, whoever owns the land, they need to be forced to maintain it. The current owner hasn’t done that for nearly a decade. Instead the residents have had to arrange for the grass to be cut and fences to be mended. And now Dorbcrest have verbally threatened to fence off the entire area to block public access and prevent us from maintaining it. In effect, they plan to ruin the area if they cannot build on it, no doubt in the hope that this will force the Council to give them the planning permission that they desire. Let me tell right now, this would not be tolerated by the residents -we would make an official complaint to the Council, we would go the press and if needs be we would go to the Local Government and Social Care Ombudsman.

Regards Ian Barnes

Amanda Barnes, 31 Kingsley Close, 12th May 2021:

Please see some more evidence of residents and their families using the POS. These are just the ones that residents came-up with immediately on my request to show more recent times on the POS, so there will be more evidence that I can offer over the coming days from dog walking to more families having fun.

Last year, some of the young girls on the close were looking to go camping for some sort of expedition and wanted to practise putting tents up in the POS with their families. Lots of giggles and fun that day! Next door’s dog loved it – getting lots of attention and stroking from the youngsters.

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The below pictures were taken 12th Aug 2020. It was a birthday party for the grandson of a resident. Socially distanced fun in the open air. All generations coming together.

Amanda Barnes, 31 Kingsley Close, 15th May 2021:

With regards to the “representations that have been received from the landowners’ consultant to the nomination” my understanding is that the Parish Council is to provide a response to this, however I also wanted to make clear the following in relation to the Jubilee celebrations…

The pictures provided on the LGS application show more than just the Jubilee event but also show Pippa’s 1st birthday party. As I recall, and as the photos show, a bouncy castle was erected for the Jubilee event. A bouncy castle and a marquee were also erected for Pippa’s party. Whilst I am confident that my direct neighbours or any of the residents that I have managed to speak to so far, did not seek permission to hold the Jubilee event on the POS, I cannot vouch for ALL residents. However, I very much doubt that anyone else requested permission, and I believe that this is a moot point anyway - if someone did contact Dorbcrest then this would merely have been out of courtesy, as a large marquee and bouncy castle were erected. I really do doubt that anyone did ask ‘permission’ but again, this would not have been due to there being any perceived restricted access. Can Dorbcrest show any evidence directly from the residents that they did contact themselves for permission? We have been, and continue to be able to freely access the POS. Also,

13 the farmer freely comes and goes to access the POS to deliver his cows. If access was secured and restricted, he would not be able to do this.

I hope this clarifies things? I have provided some more pictures of the Jubilee event and of Pippa’s party too, as I think that these 2 separate occasions may have been mistakenly (or purposely) treated as one event by Dorbcrest and this may also have some influence on your decision?

Please see further evidence of residents, their families and community using the POS. I expect to provide some more photographic evidence over the coming days and written statements from residents who regularly use the POS for dog walking and everyday activities that wouldn’t normally warrant taking photographs.

Cows being delivered by the farmer. The residents watching in awe as the cows are delivered. Dave with the mower having just mowed the fields – the mowed fields are evidenced as well. Myself and my son playing and sledging in the snow (this was from new years eve 2020)

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Liz Green, 3 Kingsley Close, 15tH May 2021:

As a Kingsley Close resident and a family with two school aged children, we have made much use of this beautiful green space. During the summer, when strict Covid restrictions were in place. It was a safe and perfect meeting place for me & my extended family to meet.

The children (under supervision) loved getting in the kayak and paddling up and down the canal.

My girls, along with many other children who live on the estate love to play on this open space. It was unfortunate that the trees/bushes etc were cut down by Dorbcrest. As they spent many an hour building dens in the branches.

16 We’ve also left a football net on the grass for everyone to enjoy. As it’s an ideal location for a kick around, well away from the dangers of traffic.

Planning for the future, there is so much more enjoyment to be gained by this green space from Kingsley Close residents. How lovely to have an area sectioned off for a community allotment, bee hive, further addition to the benches, e.g picnic tables.

There’s a ridiculous amount of new housing being built in Feniscowles. Let’s please keep some green spaces for our community to enjoy.

Yours sincerely

Liz Green (3 Kingsley Close)

Further comments from Livesey Parish Council 19th May 2021:

I have been asked to send you the following questions and attachments for your action.

1. The planning conditions AND sales literature from the original sale of the properties shows that this is PUBLIC OPEN SPACE. It is impossible for there to be no right of access by the public onto a public open space. To suggest otherwise is nonsense from Dorbcrest.

2. In relation to the Queens Diamond Jubilee celebrations, the residents of Kingsley Close who organized the event fully refute the allegation that permission was sought to hold the event. We suggest that Dorbcrest homes provide documentary evidence of the request they received by way of a copy of the request.

3. The claim that Dorbcrest have secured the gate is fully refuted. We also point out that a stile exists to provide pedestrian access to the public open space. We would raise the question as to whether any such attempt by Dorbcrest to prevent or attempt to prevent access to public open space would be legal?

4. Amanda Barnes will be forwarding further evidence of the public open space in use

Kind regards Rory Needham Clerk to Livesey Parish Council

17 extract from Dorbcrest sales brochure:

Extract from approved site plan associated with planning application 10/01/0516

18 Paul Sedgwick, Sedgwick Associates, on behalf of James & Gladys Boylan freeholders to LA907325, dated 30th April 2021:

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Response from Clara Mansfield, freeholder of Title No: LAN214719, received 24th May 2021:

Further to your letter dated 4th May I respond as follows: I have owned this land since December 2018. It is private land and historically has had a sign on the gate stating that it is private. However on a recent visit to the site, I noticed that this sign has been removed. By whom, I am not sure? It is

21 probably due to this nomination request and the fact that the local people are trying to now suggest, after all this time, that it is used by them and the public. To my knowledge, the only people who have a right of way through the land is the farmer, hence a pathway through it, but he very rarely, if ever, uses the right of way. There is no right of access for anyone else and anyone entering the land, are trespassing. The 6 households that back onto the land have had the benefit of a view over the land, but that is all. There is nothing in my deeds that implies this is public land and I cannot understand why now it is being considered for inclusion on the councils list of assets of community value. There are lots of other places in the local area for the general public and people of Kingsley Close to enjoy. For the reasons above, I believe that the Nomination Request should be refused.

Kind Regards Clara Mansfield

Further response from Amanda Barnes of No.31 Kingsley Close (as resident) to Clara Mansfield’s representation – dated 25th May 2021:

I will speak with members of the Parish Council as they may also wish to provide a response. In the meantime, please see my initial response, as a resident of Kingsley Close (below).

The gate did indeed have a sign on it stating ‘PRIVATE’ - I remember this well. It was also chained too! These were temporarily put in place by one of the residents, Dave Morley. This was done to stop access to POS by a number of large vehicles that had been seen on Kingsley Close, presumably looking to set-up camp on the land. Up until this point, the gate was untethered with no signage. The Farmer, who has always been able to freely access the track through the POS via the gate and onto the land to deliver his cows, was also made aware of the sign and of the chain. On the occasions he needed to gain access to the POS, he would collect the key from Dave or one of the residents. These are not just my recollections - I took the opportunity to contact Dave Morley and Colin the farmer today, and they confirmed this account to be correct. They also confirmed they would provide statements, should this be required. I should point out that it was only vehicular traffic that would not be able to access the POS at this time, as the stile/pedestrian access was open throughout, for those who chose to use the POS for it’s rightful and (initially agreed) purpose. We continue to freely access the POS via the gate or the pedestrian opening/stile. The sign was taken down and the chain removed by Dave some years agon now, due to a request by the then Parish Councillor Derek Hardman, the reason given that the POS should remain accessible at all times. Quite right too…as the sign was only ever a temporary measure. I have tried to contact Derek today, but I am aware that he is busy, so you may wish to corroborate this version of events with the Mayor of Blackburn with Darwen himself, when he is free?

Only recently I made comment during the online Parish meeting held on 14th May 2021 about the fact that a sign was erected on the gate, due to some questions relating to the POS being accessible. Both Dave and Sharon Morley commented on this, as did other residents who attended the meeting, therefore I think at least half a dozen upstanding citizens of Blackburn could corroborate this too. Perhaps these comments may have already been noted in the Parish Meeting minutes?

With regards to the comments made “To my knowledge, the only people who have a right of way through the land is the farmer, hence a pathway through it, but he very rarely, if ever, uses the right of way” this falls short of stating fact, perhaps because it isn’t fact. The farmer does regularly deliver his cows, unless of course Ciara Mansfield’s understanding of the term ‘regularly’ differs to mine and perhaps the farmer’s understanding of it too?

22 In response to the comments “The 6 households that back onto the land have had the benefit of a view over the land, but that is all”…again, this is not fact. How can someone else even presume what is of benefit to another? The facts are that the 6 households that back onto the land have benefitted greatly from the use of the POS. It is also true that we have benefited from the view over the land too, but less so recently, due to the felling of trees (without a felling license, as checked and confirmed with the forestry commission) and the mess this caused, which was left behind. But, because of the very benefits the residents gain from the land, we have continued to look after the POS, mow the grass and tidy-up after the mess left behind from said tree-felling and lack of any maintenance for at least 10 years. As of yet, I can see no evidence that any action has been taken by the landowner with regards to fixing the fences that were damaged by the tree-felling. Indeed, I have emailed Dorbrest and have offered for the residents to fix them as they look a mess and have done for months. This also surely demonstrates that the land benefits the residents, as we do care about the POS and are prepared to tidy-up the mess, even though we are not responsible for it.

Overriding evidence has been provided to the Parish council and BwD Planning that the land (which is undeniably public open space as per BwD Plans and agreements) has been used (and LOVED!!!) by residents, their families, and the local community, and they will continue to do so.

Comments from Sharon & David Morley, residents of Kingsley Close 2nd June 2021:

I Have been asked to forward you a statement regarding the POS at Kingsley Close.

I David Morley put up a sign and secured the gate with a padlock that is the access to the POS south of Kingsley Close.

The farmer had access at all times as did all the local community.

This was done due to travellers being in the area at the time. However neither padlock or sign have been up for several years because I was advised to remove them.

Regards David

Comments from Colin Fielding, Farmer, Pulford Farm Diaries, Belthorn Road, Blackburn, 2nd June 2021:

23 Comments from Councillor Derek Hardman 3rd June 2021:

I can confirm that I did speak to Mr Morley and requested the chain and sign be removed, this was following a complaint from a resident that the sign and chain had appeared on the POS, I went to investigate and Mr Morley came out to speak to me, he explained that what he thought were travellers were looking at it therefore he locked it and put a sign up to stop them, I explained residents should have full access and he agreed to remove them

Regards

Cllr Derek Hardman

Comments from Rebecca Fielding, Farmer, Pulford Farm Diaries, Belthorn Road, Blackburn, 4th June 2021:

Just to confirm we are in support of the ACV nomination, providing we can maintain our 24 hour access to our grazing field and livestock.

Kind regards

Rebecca Fielding Pulford Farm Dairies

Council’s Head of Legal & Governance dated 1st June 2021:

The nomination submitted is valid for the purposes of the Assets of Community Value (England) Regulations 2012. It is noted that on the Nomination Form the freeholder is referred to as Dorbcrest Homes Ltd. From a Land Registry search the freeholders of LA907325 and LAN214719, are James & Gladys Boylan, and Clara Mansfield respectively. The land was formerly owned by Dorbcrest Homes Ltd at the time the development was completed, and has subsequently been transferred to individuals connected to the company. A Companies House search confirms that James Boylan and Gladys Boylan have connections with the company. The listed freeholders have been consulted on the nomination, and have made representations.

Assessment: The Nomination has been considered and assessed by the Council’s Planning Manager (Development Management) and Head of Legal & Governance.

The Livesey Parish Council are eligible to make a nomination as a Parish Council within the administrative boundary of Blackburn With Darwen

The Council must consider whether the land to the south of Kingsley Close, Feniscowles, Blackburn, meets the definition of an Assets of Community Value as set out in Section 88 of the Localism Act 2011, i.e in this case is it currently in use that furthers the social well being and interests of the local community, or a use in the recent past has done so, and also is it realistic to think that there can continue to be non-ancillary use of the building or other land which will further the social well-being or social interests of the local community (whether or not in the same way)?

24 The Nominating Group’s submission is based on the following:

(i) The land the subject of the nomination, is within the administrative boundaries of Blackburn With Darwen Borough Council. (ii) The land’s main use has recently been or is presently being used to further the social well-being or social interests of the local community, and could reasonably do so in the future. (iii) The land does not come under one of the exemptions which are specified in The Assets of Community Value (England) Regulations 2012.

The Community Right to Bid was introduced by Part 5 Chapter 2 of the Localism Act 2011. It relates to properties or land which qualify as “assets of community value”. It should be noted that it neither is a right to buy nor a pre-emption right, but it allows the nominating group a right to bid leaving the landowner free to proceed with a disposal of the land should the owner wish. If a nomination is successful it provides an opportunity to allow the nominating group to bid by imposing a 6 month moratorium, but the group has no right to compel the owner to negotiate.

There is no statutory definition of what “local community” is. It is on a case-by-case basis. With regards to social wellbeing/social interest - the statutory regime contains no definition of “social wellbeing or social interest of the community” save that “social interests” include in particular cultural, recreational and sporting interests (section 88(6)), but the phrase is not limited to such interests. Each local authority is to decide what interests it considers falls within the phrase. The official non-statutory guidance in the DCLG Guide “Community Right to Bid: Non-statutory advice note for local authorities” (October 2012), indicates that this is deliberate with the intention that each local authority will determine its own meaning for such phrases as referenced by Judge Lane in the Pullan v Leeds City Council case [CR/2015/0011, paragraph 10].

Local authorities are not required to publish their interpretation of the phrases on their website.

In terms of qualifying criteria, the first stage is concerned with a consideration of the current actual use of the nominated land, and then if the actual use condition under Section 88(1) of the said Act is not satisfied, the second stage under Section 88(2) is relating to a consideration of use in the recent past, and whether it will continue in the future. If the criteria are satisfied on the first part that is sufficient and there is no need to proceed to the second part. In each of these parts there are two tests which have to be satisfied.

In the first test the current use or use in the recent past have to satisfy the statutory requirement as to community use. Then if that first test is met the second test in both stages concerns future use.

For clarity, the following is the wording from Section 88 of the said Act:

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From an assessment of the submitted nomination, the local authority consider that the Nominating Group are contending that Section 88(1) is applicable, and not Section 88(2).

In regards the assessment the local authority have considered information from the landowners (or their representative), together with any representations received from the local residents, and from other local authority services. This allows the local authority to have as much information as possible upon which to base the listing decision.

Section 88(1):

(a) Whether the current use that is not an ancillary use furthers the social well- being and interests of the local community?

The Nominating Group in their submission state “…The land’s main use has always been, since the Kingsley Close development was completed in 2002/2003, for the social wellbeing and social interests of the local community….. The land continues to be used by the local community for their social wellbeing and interests. Ample evidence of all this is included in the supporting document ‘Local Green Space Designation Application – Kingsley Close.’”

Furthermore, additional representations have been received from the local residents relating to the use of the land for their enjoyment.

It is very clear from when planning permission was granted for the 34 dwellings in November 2001, (ref: 10/01/0516), that the area of land to the south of Kingsley Close, was to be used as public open space. An extract from the approved site plan drawing is below:

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Extracts from the report presented to the Planning & Highways Committee at the time, state:

Therefore, it was always the intention that this area of open space would provide a “valuable amenity area” for the local residents of Kingsley Close. Condition No.4 was imposed on the planning permission:

No development shall take place until details of the maintenance and management regime for the proposed communal open spaces on the development has been submitted to and approved in writing by the Local Planning Authority. REASON: To ensure that the communal open areas to be provided are satisfactorily maintained in accordance with Policy H4 of the Blackburn with Darwen Local Plan (Deposit Edition).

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Correspondence within the application file show that the condition was never formally discharged. Details of the proposed maintenance and management of the open space was submitted, with the developers clearly indicating in their submission document of their intention to maintain the open space (for a 12 month period).

Public Open Space Management & Maintenance Proposal document submitted under Condition No.4 pursuant to planning application 10/01/0516.

The document does not make reference to the open space being transferred to the Council for adoption, however a covering letter indicates this to be the proposal. The letter states that the company (Dorbcrest Homes) would carry on maintaining the land until the date the land is transferred to the Council for adoption. Below is an extract from the letter to the local planning authority in July 2002.

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It was clear the intention by the developers was to transfer the land to the Local Authority for adoption, but correspondence from 2006, highlight this never happened with discussions between the applicants (developers) and the local authority appearing to stall. The developers clearly state that they would maintain the land until the adoption process was completed. This however, does not change the fact that the land in question was, and is, open amenity space to provide for the enjoyment of the local residents, and with the evidence submitted from the residents and the Parish Council, this has appeared to be occurring over a number of years.

The Freeholder to title plan no: LA907325, in their representation supported by a sworn affidavit, indicate they have only allowed the residents access onto the land to celebrate the Queens Jubilee. In addition, the freeholder to title plan no: LAN214719, in their representation stated since they were the owners of the land since December 2018, that it is private land and anyone accessing it apart from the farmer (who has a right of access) is trespassing “…it is not public open space”. This is hotly disputed by the residents and Parish Council representations. In addition, representations have been received from the adjoining farmer who enjoys the right of access across the site, confirming that to the best of their knowledge the gate leading to the public open space has never been secured by the landowner, being secured by the residents to prevent travellers from accessing the site at that time.

Notwithstanding the position and statement made by the freeholders, it is considered that the land, whilst being in private ownership, is still considered to be public open space, and this is clearly shown on the approved site plan drawing pursuant to planning application 10/01/0516, supported further by the marketing details by the developers at the time the

29 houses were constructed and sold. A recent Court of Appeal case reversed a High Court decision and supported a planning inspector’s refusal of planning permission for a housing development on a privately owned site in North Wales.” The Court of Appeal overturned the decision on the ground that “the land was open space for the purposes of the policy” at the time of the decision and, therefore, the inspector was correct to proceed on that basis. The accepted fact that the landowner could exclude the public from his land did not mean that the land was anything other than open space. The Court held that the description of the play space as informal related to the nature of the use not to the arrangements for access.” [Renew Land Developments Ltd v Welsh Ministers [2020] EWCA Civ 143 (13 February 2020)].

The evidence submitted in support of the nomination is quite compelling in terms of the use of the land that furthers the social well-being of the local community. More recently in 2020, an application was submitted to designate the land as Local Green Space designation (LGS), which was considered by the Council’s Strategic Growth and Policy Team. The evidence submitted (which has also been submitted in support of this ACV nomination), provided clear evidence of the historical use of the land, and how it met the needs of the local community.

As such, from the evidence submitted it is considered that the nomination establishes an actual community use within the meaning of the said Act.

(b) Whether 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?

The site is currently unallocated in the adopted Local Plan Part 2 (LPP2) (December 2015): extract from the Proposals Map below:

Consultation Draft Local Plan 2018-2037:

A six-week public consultation on the Draft Local Plan took place between Friday 8th January 2021 and Friday 19th February 2021 under Regulation 18. From the evidence submitted in relation to the LGS application in 2020, the site to the south of Kingsley Close

30 is one of two LGS’s identified in the Consultation Draft Plan under Policy PAP3. This is why it was one of the 2 LGS’s identified in the Reg18 Consultation Draft Local Plan (Policy PAP3).

Extract from Proposals Map of Consultation Draft Local Plan 2018-2037:

31 It is acknowledged that the land is not formally designated as LGS until the new Plan is adopted (approximately 2022-23), however there were no objections submitted to the recent consultation, and as such, the designation is highly likely to proceed to formal adoption.

It is recognised that the LGS is a policy issue which is separate to the ACV nomination under the Localism Act, However, the nomination submitted by the nominating group, notwithstanding the assertions by the freeholders that the land is “private”, and with the LGS designation, clearly demonstrates that the site will continue to be used to further the social well-being of the local community. To satisfy the second statutory test, as regard the future use of the nominated asset, it has also to be realistic to think that there can continue to be a non-ancillary use of the asset for the community benefit but it need not be the same as the current community use. As there is a current community use on the site, which has been demonstrated in the nomination and further representations received, together with the application relating to the Local Plan designation, this is normally unlikely to be a real issue. Though there is no period specified during which the community use must continue, current planning case law suggests it is enough that it is realistic to consider that the current use will continue and there is not a need to prove that it is more likely than not to happen. Given the fact that the land was approved as “public open space” from the original planning application, and the site’s proposed designation in the current Local Plan review process, it is reasonable to assume this site will continue to deliver community benefit.

Conclusion:

From the evidence submitted, and the detailed assessment above, the local authority consider it is realistic to contend that the land could have a non-ancillary use, which would further the social wellbeing or social interests of the local community as required by Section 88(1) of the said Act. It is acknowledged from Mr Sedgwick’s representations on behalf of the freeholders, that the land is private, and any residents using the land could amount to “trespass”. However, what is pertinent here and fundamental, is that the freeholders at the time of the planning application being determined, and the development being completed, were fully aware that the land was to be used as “public open space”, which is clearly evidenced in the approved site plan layout. . Notwithstanding the requirements of Condition No.4 which appears to have not been formally discharged, it is clear from the approved drawing (site plan) associated with planning application 10/01/0516, that the land in question was designed as communal open space for the residents use. This is not a pre judgement of the current use of the land as suggested by Mr Sedgwick in his representation on behalf of the freeholders. Furthermore, notwithstanding the fact that the freeholders have not been maintaining the site in accordance with Condition No.4 of planning application 10/01/0516, recent case law points towards the conclusion that land may still be considered “public open space” despite it being in private ownership and having the ability to fence it off.

The Nominating Group and local residents of Kingsley Close, have submitted a compelling case on how the land has been used which furthers the social well-being of the community in accordance with S88(1) of the said Act. Furthermore, the local authority contends 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

32 before) the social wellbeing or social interests of the local community in accordance with Section 88(1) of the said Act.

Decision:

I confirm that:

Nominated Asset: Land to the south of Kingsley Close, Feniscowles, Blackburn

Should be included as an Asset of Community Value and be included on the Council's Local Assets of Community Value Register. The Asset will be included on the Council’s Local Assets of Community Value Register as a Successful Nomination in accordance with the Assets of Community Value (England) Regulations 2012.

Martin Eden, Director of Place Date: 4th June 2021 Background Papers: Nomination application, letters from the owners’ consultants.

Contact Officer: Gavin Prescott, Planning Manager (Development Management) Telephone: (01254) 585585 option 1 Email: [email protected] Date: 4th June 2021

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