Asset of Community Value

January 25th, 2022

In R (TV Harrison CIC) v Leeds City Council (2022) EWHC 130 (Admin) the claimant community interest company challenged the decision of the City Council to refuse to include the claimant’s Land in the list of Land in its area that is of community value that is maintained under Section 87(1) of the Localism Act 2011. The Land is described as a longstanding sports field and has recently been restored.  However, the City Council seeks to proceed with a housing development. “Land of community value” is defined by Section 88 of the Act.  Section 88(1)(b) is concerned with future use.

From paragraph 24 to paragraph 32 inclusive, Lane J. reviewed the authorities.  He said:-

“41.    Although the decisions of the First-tier Tribunal have no authority as precedents, as such, there can in my mind be no doubt that the construction of section 88(2)(b) adopted by Judge Warren, and thereafter consistently followed, is the correct one. The legislation does not require there to be only one “realistic” future use of a building or other land.  Several possibilities may each be realistic. The legislation does not require a potential future use to be more likely than not to come into being, in order for it to be realistic.  The fact that the most likely of a number of scenarios is one which would not satisfy the statutory criteria (eg. a change of use from pub to residential) does not mean that any other potential future use is, without more, rendered unrealistic.  It is only if the non-compliant scenario is so likely to occur as to render any compliant scenario unrealistic, that the non-compliant scenario will be determinative of the nomination.

42. It is clear that there can be only one correct statutory construction of section 88(1)(b). It is therefore, in my view, equally clear that a local authority must adopt that construction, in deciding whether to accept a nomination. To hold otherwise would render the statutory scheme incoherent. The fact that a refusal to nominate can be challenged only on conventional public law grounds is nothing to the point. If, adopting a correct approach to section 88(1)(b), an authority concludes that the test is not met, the mere fact that some other hypothetical authority, following the same approach, might have concluded differently will be immaterial to any assessment of the legality of the first authority’s decision. That, however, is the extent of the significance of the words “in the opinion of the authority” in section 88(1).”

“48.    By using the “realistic to think” test, Parliament has set a standard which means that a local authority must not approach the future use of land as necessarily a binary issue, as between the current intentions of the owner and the current proposals of the nominator. Although the development intentions of the owner will be relevant, particularly in the planning context, any factors casting doubt on the owner’s ability to achieve those aims must be considered. It is on the strength of those doubts that the “realistic” nature – or otherwise – of the envisaged social use may depend.”

“57.    …. the correct approach to the “realistic to think” test, as demonstrated in the decided cases, means that a landowner’s “clear and settled intention to proceed” has to be weighed against other, potentially competing considerations.  By the same token, a landowner may well have “put considerable resource” into paving the way for the desired redevelopment, and yet be unable to demonstrate that community use of the land may, nevertheless, still be a realistic prospect. The same is true of the owner having “the necessary resources to develop” and having identified “a building contractor”.

58. This is not a question of the court attempting to impose its own views as to the weight to be accorded to particular factors. …”

From paragraphs 65-79 inclusive, the Judge addressed appearance of bias. All four ground of challenge succeeded.

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