Assets of Community Value – Status upheld following unsuccessful appeal

For those of you who have joined us on our recent Planning Law Update Seminars held across Essex and Suffolk you will know that Tom McPhie’s slot regarding Assets of Community Value (‘ACV’) has sparked quite a lot of interest and debate. Under the Localism Act’s community right to bid, groups can nominate land and buildings with a use that furthers the “social wellbeing or interests” of the community as an ACV. Once registered by a local authority, if an ACV is to be offered for sale, the seller must notify the local authority of the proposed sale and the local authority will then notify the community group(s). The community group(s) then have 6 weeks in which to submit to the local authority a request in writing to be allowed the opportunity to bid for the ACV. Once such a request is submitted (within that 6 week period), then a 6 month moratorium period applies to allow the community group(s) time to put together a bid for the ACV.

Of particular interest/debate at our seminars was when an asset can no longer be considered as furthering (or having recently furthered) the local community’s social wellbeing or social interests; unhelpfully the Act is a bit vague on this point referring only to the asset having furthered the social wellbeing or social interests in the “recent past”.

However, a recent case (reported last week) would indicate that non-use for  5 months did not prevent a local pub from being listed as an ACV and, by implication, that its last use in October 2012 amounted to the “recent past”. The appeal concerned the Chesham Arms in Hackney. The London Borough of Hackney listed the Chesham Arms as an ACV in March 2013 after a request from the Churchwell Residents’ Group. A “Save the Chesham” campaign had sought to keep the venue as part of the community since its closure last year, opposing any plans to turn the building into housing or offices.

The Chesham Arms had been closed by its owner, Mr Patel, in October 2012. Mr Patel claimed the business was no longer profitable and submitted an appeal against the council’s decision to list the pub as an ACV. Last week, the president of the First Tier Tribunal, Judge Nicholas Warren, dismissed the appeal, with written reasons to follow. It was reported that the hearing at Hackney Town Hall was attended by more than 40 people.

The case is of significance because I understand that the appeal was the first under the Assets of Community Value (England) Regulations 2012 against a local authority’s decision to list an asset as an ACV.

Following the decision Hackney mayor Jules Pipe has being quoting as saying: “Our concern all along has been to protect the Chesham Arms from developers and to retain it as a valuable community hub. Pubs like the Chesham Arms bring together local residents and help to build close neighbourhoods, and they deserve to be protected. The current owner should either re-open this historic building as a pub or sell it to someone who will.”

Whilst we await the decision it would seem to me that the (relatively) recent closure of the pub was material to the decision and, although I have not yet seen the written reasons of Judge Warren, presumably evidence was given as to whether the Chesham Arms was likely to further the community’s well-being or social interests in the future.

Lastly, I feel that I should comment that an asset being listed as an ACV only gives the community group an opportunity to purchase the ACV; there is nothing in the legislation  that compels the owner to sell it to the community group.

David Whipps is a specialist Planning Law solicitor at Holmes & Hills Solicitors in Braintree, he is recognised as a one of the leading experts in the field by Chambers & Partners - an independent directory of the country's top law firms and solicitors.