In Banner Homes Ltd v St Albans City and District Council (2018) EWCA Civ 1187 a landowner appealed against the Council’s listing under Section 88 of the Localism Act 2011 (“the Act”) of its undeveloped land as a community asset. The land was situated in the metropolitan green belt. It was crossed by two public footpaths. It had been used for more than 40 years by the local community for peaceful and beneficial recreational activities.
The landowner had been well aware of the existing community use when it purchased the land in 1996. It had taken no steps to oppose the use since.
The 820 strong residents’ association made a community nomination for the land to be listed as an asset of community value. The Council acceded, listed the land, and notified the landowner. The landowner applied for an oral review.
Shortly before that review was to take place, the landowner erected fencing along the length of the public footpaths together with notices stating “private land, no unauthorised access”. The landowner submitted that as a matter of law, “actual use” for the purposes of Section 88(2)(a) of the Act had to mean “lawful use”, and that since any actual use of the land by the local residents, apart from the public footpaths, was a trespass, and unlawful, it could not form a qualifying use for listing the asset as of community value. The landowner relied on the presumption that the law should serve the public interest and also on the principle of statutory construction known as the in bonam partem doctrine, that presumed against rewarding an unlawful action with a benefit unless a contrary Parliamentary intention was revealed.
The Court of Appeal however held that the Council had been entitled to list the land. It rejected the binary approach advocated by the landowner. There is no inflexible bright line such that any unlawfulness, no matter how slight or trivial, would prevent a use from qualifying as an “actual use” for the purposes of the Act. Where public policy was invoked as an aid to statutory construction, the correct approach was more open textured, with regard given to the context and to the nexus between the conduct and the particular statutory provision. The key point was that an asset could only be an asset of community value if there was actual use that the local authority considered furthered “the social wellbeing or social interests of the local community”. Whether the test is satisfied is left to the good sense of the local authority.