Assets of Community Value

December 22nd, 2016 by James Goudie KC

R (Patel) v SoS for CLG (2016) EWHC 3354 (Admin) was a challenge to an Inspector’s decision allowing an appeal from a refusal by Wandsworth LBC as LPA of an application for a change of use from retail to residential. One of the grounds of challenge was that the fact that the premises were registered as an Asset of Community Value (“ACV”) under Sections 87 and 88 of the Localism Act 2011 was a “material consideration” that the Inspector had ignored.  Ouseley J ruled that the Inspector had been wrong not to take this into account.  This did not, however, have the consequence that the ground of challenge succeeded.  It was perfectly clear that if the Inspector had considered it to be of relevance it would have made no difference to her decision.  Ouseley J said, at paragraph 58:

“The ACV status of this corner shop reflects the local value put on its services as a shop. That was perfectly evident from the representations made to her, and the Council’s case. Local value was at the heart of the question of the impact of its loss on the provision of services. The status in fact added nothing or nothing much to the arguments. It is another guise in which the same points would be made, except if an issue had arisen as to whether, absent the change of use, the shop would in fact continue in shop use, where the possibility of community purchase could be relevant.”

Ouseley J also dismissed a PSED challenge. Referring to Section 149 of the Equality Act 2010 and the principles summarised by the Court of Appeal in Bracking (2013) EWCA Civ 1345, he said:

“62.    The Defendants submitted, correctly, that what was required was an examination of whether the decision-maker has in substance had due regard to the statutory needs, which depends on the decision and its reasoning …”

“65.    There is no duty to give particular weight to the needs of the elderly or disabled, and no duty to achieve the outcome which advantages them the most or disadvantages them the least. The decision-maker needs to be properly informed about the issues … The question is whether the Inspector applied her mind to the issue in the manner required by Bracking, even though she did not specifically refer to the s149 duty.”

“68.    She is not obliged by s149 to find some countervailing public benefit to set against the greater disadvantage of the longer journey or the loss of those services before she could reach a lawful decision on … approval. The question she has to decide under the Order is still the same. Otherwise, s149 would alter the decision which had to be made.”



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