Assets of Community Value

The Localism Act 2011 confers an ability to nominate land or buildings to be placed on a list of Assets of Community Value (ACV) which impacts property ownership. It restricts the ability of the owner to dispose of a property and may also affect the planning position.

Once on the list kept by the local authority the following will apply to an Assets of Community Value:

  • it will stay on the list for five years
  • if the owner wishes to dispose of the listed asset a moratorium must be observed to allow a competitive bid from a community interest group
  • if the owner cannot be compelled to sell to such a group and cannot be prevented from going ahead with the intended disposal on the expiry of the moratorium
  • the listing may be a material consideration for planning purposes and in the case of nominated and listed pubs will prevent the Permitted Development Rights regime applying
  • compensation is payable for any loss or expense caused by the listing.

If notice is given of an application to nominate land or buildings then it will be necessary on behalf of the owner to check whether

  • the nomination for listing is valid
  • the land or building is excluded from the listing regime
  • the qualifying criteria have been satisfied;
  • if there is an intention to dispose that disposal will qualify as a part-listed disposal.

If you need legal advice on an Asset of Community Value please contact me, Christopher Cant, Property Law Barrister, on:

Telephone: 0203 150 2242 (Clerksroom)
E-mail: christopher.cant@clerksroom.com
Mobile: 07305 339379

Christopher Cant has prepared a Guide to the Assets of Community Value regime which incorporates the statutory provisions and the reported appeals to the First-tier Tribunal (General Regulatory Chamber), Upper Tribunal (Administrative Appeals Chamber) and Court of Appeal up to 8th June 2018.

The June 2018 – 6th Edition of the ACV Guide:

  1. the Court of Appeal decision in Banner Homes;
  2. the nine ACV appeals to the First-tier Tribunal since June 2017;
  3. the appeal in Admiral Taverns to the Upper Tribunal;
  4. further discussion of nominations by CAMRA;
  5. recent planning decisions.

The June 2017 Update:

  1. the thirty appeal decisions since June 2016;
  2. the 2017 changes to the Permitted Development Rights regime;
  3. a fuller consideration of the compensation provisions;
  4. an expanded discussion of the eligibility of nominators;
  5. more planning appeals concerning ACV listed assets.

The June 2016 Update:

  1. analysis of the recent FTT appeals – Haley v West Berkshire DC; Hawthorn Leisure v St. Edmondsbury BC; Kicking Horse v Camden LBC; Mendoza v Camden LBC; STO Capital v Haringey LBC; Haddon Property v Cheshire East Council; Pullan v Leeds City Council
  2. discussion of the first appeal to the Upper Tribunal – BHL v St Albans City and District Council
  3. expanded consideration of nominators, contents of nomination forms, supporting evidence, manner of assessment by the listing authority and exempt disposals
  4. specific consideration nominations of public houses
  5. further planning appeals relating to listed ACV
  6. what constitutes a hotel for the purposes of excluded land;
  7. the effect of conditional contracts prior to listing;
  8. what constitutes an unincorporated association for the purposes of nomination taking into account the decision in Williams v Devon CC;
  9. Planning Inspectors decisions relating to listed assets;
  10. the process of assessment by a local authority.

Current use or in recent past

This important first statutory criterion is considered in depth in chapters 5.1 and 5.2 of Christopher Cant’s ACV Guide.

An earlier discussion of this first criteria among other topics can be found in Assets of Community Value under the Localism Act – Blighting of development or boosting the local community but for a full consideration reference should be made to Christopher’s ACV Guide.

Future use

This second statutory criterion is considered in chapters 5.1(e) and 5.2(c) of Christopher’s ACV Guide.

In an ACV appeal decision in which Christopher appeared for the owners Judge Jacqueline Finlay ordered the removal of Uptin House in Newcastle from the ACV list on the ground that it was not realistic to think that in the future it will be used to further the social well-being or social interest of the local community.

The registered proprietors of Uptin House v Newcastle City Council can be found here as a PDF

A full consideration of the impact of the ACV regime on public houses can be found in Christopher’s ACV Guide and in particular chapter 5 (Qualifying Criteria) and chapter 7 (Community nominations).

Conversion to residential use

The listing of public houses has not deterred the determination of some owners from attempting to convert the pub to a dwelling. This was the issue in the First tier Tribunal appeal decision – King v Chiltern DC (CR/2015/0025), in which Christopher Cant was involved.

This case and others arising from such attempts are considered in “Battles to convert ACV listed public houses to dwellings” , first published on the Local Government Lawyer website.

Part residential

Public houses often have a flat over for the publican or manager. In Wellington Pub v Kensington & Chelsea useful guidance was given as how to determine whether or not a residential part of a building should be included in a listing.

Further guidance on the operation of the ACV regime can be found in this PDF

An earlier discussion is to be found in this article Assets of Community Value under the Localism Act – Blighting of development or boosting the local community.

Protection

Independently of the ACV regime reliance may be placed on restrictive covenants for protection of a public house against change of use but such protection is vulnerable as discussed in this the paper.

This topic is considered in depth in chapter 7 of Christopher’s ACV Guide.

Unincorporated bodies

The interesting appeal decision in Punch v Bracknell BC discusses whether a nomination by a group constitutes a nomination by an unincorporated body for the purposes of the ACV regime and is explored in this article first published in the Local Government Lawyer.

CAMRA nominations

Nominations by CAMRA have often been challenged by owners. The important appeal decision of Hamna Wakaf v Lambeth LBC is one such case which is explored in this paper first published on the Local Government Lawyer website.

Open spaces

More community nominations are being made relating to open spaces due to the conflict between the need for more housing and the need for recreational land. This conflict is discussed in this article first published in the Local Government Lawyer.

Public footpaths

The impact of the ACV regime on public footpaths is considered in this paper which was first published in the Waymark Journal Volume 31 issue 1

Compulsory Purchase Order

The first CPO concerning an ACV listed public house had been made in respect of the Rising Sun. The documentation is discussed in this article first published in the Local Government Lawyer. Following objections raised by the owner this order has now been withdrawn.

Vacant assets

It is not uncommon for an ACV to be left vacant whilst listed. In some cases this is prompting attempts to be made to have the property compulsorily purchased by the local authority. These attempts are discussed in this article which was first published in the Local Government Lawyer. So far these efforts have resulted in one CPO discussed above which has subsequently been withdrawn.

This topic is covered in chapter 11 of Christopher’s ACV Guide

Scope of compensation claims

There has been uncertainty as to whether an entitlement for compensation can arise solely from the listing of an asset. This has been decided by Judge Simon Bird QC in St John’s Ambulance v Teignbridge CR/2018/0003 in which Christopher Cant was involved. It also decided the measure to be adopted in assessing such compensation. It was argued that compensation should be assessed on the basis that there is no ACV regime. This was rejected. The judgment is discussed in this paper – which was first published in the Local Government Lawyer.

This decision in the St. John’s Ambulance case overtook the obiter dicta in the earlier appeal decision of Chadwick v Rosendale BC which is still illustrative of the evidential hurdles facing a compensation claim and is covered in this paper headed Further guidance on the operation of the ACV regime PDF.

Time Limits on compensation claims

Complicated claims in relation to the loss of planning rights may arise under the ACV regime. One such was in Fielder v Harrogate BC which failed however due to the application of the time limits in regulation 14(5)(b) of the 2012 regulations. The manner in which this time limit operates is discussed in this article first published in the Local Government Lawyer.

This topic is discussed in chapter 6(b)(V) of Christopher’s ACV Guide

Part use of a building for residential purposes raises complicated issues as to whether or not the building is excluded from the operation of the ACV regime. This issue is addressed in this paper – Further guidance on the operation of the ACV regime.

Much sensible guidance can be obtained from the appeal decisions of the First-tier Tribunal. These points are incorporated in Christopher’s ACV Guide and have been discussed since the introduction of the ACV regime in updates including:

  1. Fresh Developments in the ACV regime – published in the Local Government Lawyer covering (a) Multiple use of buildings – Uptin House v Newcastle CC; (b) CAMRA nominations – McNeill UB40 Limited v Hackney LBC; (c) Compensation – Whitehead v Tunbridge Wells BC; and (d) Owner’s intentions – Worthmore Properties Limited v S Oxfordshire DC.
  2. Fresh points on Assets of Community Value – this cover (a) ZB Investments v Croydon concerning the conversion of a closed pub to flats without planning permission; and (b) the first appeal concerning a commercial gym.
  3. Further development of the Assets of Community Value Regime – covers (a) fresh guidance with regard to public houses; (b) what constitutes the recent past; (c) golf clubs; (d) changes in ownership after nomination; (e) supporters groups qualifying as nominators; (f) whether actual use has to be lawful; and (f) the effect of planning permission on the prospects for future community use.
  4. Guidance gleamed from ACV appeals and Planning Inspectors’ decisions published by the Local Government Lawyer covers (a) the extent to which useful guidance can be obtained from the appeal decisions, and (b) the planning aspects of ACV are discussed which is likely to have increasing importance.

Please call Christopher direct or the support team at Clerksroom on 01823 247 247 if you would like to discuss your Assets of Community matters and how he could help.