In CR/2015/0002, Trouth v Shropshire Council and Caynham Village Hall Committee, the First-Tier Tribunal (General Regulatory Chamber) summarised the position in relation to the Community Right to Bid as follows:-
“The Localism Act 2011 requires local authorities to keep a list of assets (meaning buildings or other land) which are of community value. Once an asset is placed on the list, it will usually remain there for five years. The effect of listing is that, generally speaking, an owner intending to sell the asset must give notice to the local authority. A community interest group then has six weeks in which to ask to be treated as a potential bidder. If it does so, the sale cannot take place for six months. The theory is that this period, known as “the moratorium”, will allow the community group to come up with an alternative proposal – although, at the end of the moratorium, it is entirely up to the owner whether a sale goes through, to whom and for how much. There are arrangements for the local authority to pay compensation to an owner who loses money in consequence of the asset being listed.”
The Caynham Village Hall Community nominated as land of community value under Section 88 of the 2011 Act (i) a playing field adjacent to the former Caynham Primary School and (ii) a car park, adjacent to the same site. Both pieces of land are situated in the village of Caynham, near Ludlow, within Shropshire Council’s area. The playing field and car park are owned by C, S & D Trouth (“Trouth”).
The Council listed both the playing field and the car park. Trouth sought a review. The result of the review was to maintain both the playing field and the car park on the statutory list. That was the decision appealed to the FTT.
So far as the playing field is concerned, the FTT found as a fact that the requirement of Section 88(2)(a) of the 2011 Act was satisfied. Plainly, there was a time in the recent past when an actual use of the playing field, that was not ancillary, furthered the social wellbeing or interests of the local community. For many years, the lease had made it plain that use of the playing field was permitted for local children, quite apart from use of the playing field for the purposes of school recreation. Trouth had put forward no evidence to show that there was, in reality, no use made by local children or that use by local children was, on the facts, merely ancillary. The terms of the lease permitted such use both inside and outside school hours, with the result that, in terms of time at least, local use would far outweigh school use. Furthermore and in any event, significant use has been made of the playing field, with permission, as a result of the holding of village fetes, up to 2011.
So far as future use is concerned, the stated intentions of Trouth are to continue to pursue their aim of development and to exclude the community from the playing field. Their case was that “it is more realistic to think” that the playing field will not be used for relevant social purposes in the next five years. This, however, is not the correct legal approach. The answer to the question of what is “realistic” may admit of a number of possibilities. In order to be “realistic”, one possibility does not need to be more likely than all of the others. A possibility will not be “realistic” if it is merely fanciful.
The issue, therefore, was whether it could be said, looking at the present position, that future relevant community use of the playing field is merely fanciful or, in other words, unrealistic. Trouth had not shown this to be the case.
The stated intentions of Trouth regarding community use could not be determinative of the question to be answered in Section 88(2)(b) of the 2011 Act; since, otherwise, listing would be possible, in effect, only with the consent of the landowner. One possibility, which could not be dismissed as unrealistic in the circumstances, was that Trouth concluded that redevelopment of the playing field is not going to occur within any commercially viable timescale. In such circumstances, a sale of the site would be a distinct possibility. Another realistic scenario is that Trouth decide to permit relevant community use, without giving up on their long-term development plans.
Therefore, the playing field met the requirements of Section 88 of the 2011 Act.
As regards the car park, it was common ground that the relevant use of this land is as a car park. It was also common ground that the car park provided parking for those attending activities in the Village Hall. Those events included meetings of the Women’s Institute, Gardening Society, Shropshire Village Hall Quiz, Yoga classes, Book Exchange, Children’s Film Shows, other social gatherings and civic functions. The car park had served a useful purpose providing unrestricted off road parking for the school and the village hall. The car park has been closed and objections have been made to the loss of this facility.
The case for Trouth was that the use of the car park was “ancillary” to the use of the village hall and, accordingly, the requirements of Section 88 cannot be satisfied.
The history of the land comprising the car park and of the village hall, was such that the FTT found as a fact the car park fell to be regarded as its own land unit for the purposes of the 2011 Act. Although the car park has a close geographic and functional connection with the village hall, this connection was not such as to compel the conclusion that the land unit is the village hall and the car park. The history of different ownerships and of different objectives of the different owners meant that it was not appropriate to treat the car park in that way. Accordingly, for the purposes of the 2011 Act, the car park had its own main use, namely, land for the parking of cars. There is no ancillary use.
It was plain on the facts that the car park satisfied the requirement of Section 88(2)(a). The issue was whether it is realistic to think there is a time in the next five years when there could be a return to the use of the car park, as a car park. The FTT found that it was not realistic so to think. The planning position regarding the car park was currently such that it could not be said that redevelopment was the only realistic scenario within the next five years. Use as a car park furthered the social wellbeing and social interests by providing convenient means of access (particularly for those with mobility issues) to the wide range of social activities taking place in the village hall. It was realistic to think that that use might resume within the statutory timescale, either because Trouth conclude that redevelopment within a commercially viable timeframe is unlikely to be achieved, and so decide to dispose of the land, or because they decide that there is utility in letting car parking resume, whilst they continue to press for planning permission.