The community right to bid (“CRB”) was introduced in England two-and-a-half years ago, empowering communities to protect local amenities by nominating them as assets of community value (“ACV”). Once listed as an ACV, a moratorium on disposal of up to six months affords valuable time for the community to negotiate their purchase and thereby preserve them, but restricts the landowner’s traditional freedom.
An emerging picture
After a slow start, it took just over a year to reach the 1,000 mark. The number of ACV listings is now rising steadily, but still represents a tiny fraction of eligible properties.
Village shops and pubs were touted from the outset as obvious candidates and figure prominently, although 10 times as many pubs have been nominated than shops. With influential consumer group CAMRA rallying loyal customers to protect their “local”, pubs are overwhelmingly the largest category of ACVs and account for one-third of all listings.
Under-threat public services, such as libraries, community centres and sports facilities, are also well represented among the wide variety of ACVs listed so far.
Surprises include the number of professional football stadia that have been listed, including Old Trafford in Manchester and Anfield in Liverpool. What football teams share with pubs, of course, is a passionate fanbase and effective supporters’ groups.
Differences of opinion
On the whole, local authorities seem happy to accept most nominations. The wide definition of an ACV is largely self-fulfilling: if the community cares enough to nominate an asset, then it is almost by definition an ACV.
Several landowners have appealed against ACV listings, with mixed results. The first legal challenge saw the First-Tier Tribunal uphold the ACV listing of the closed Chesham Arms in Hackney, despite the owner’s protestations that it is no longer financially viable as a pub. Other challenges on similar grounds have met a comparable fate, including a publican near Bridgnorth in Shropshire who had unsuccessfully tried to find a “going concern” buyer for his business for several years.
Early successes
Since the CRB only bites on a disposal, it will inevitably take time for ACV listings to convert into significant numbers of assets transferring into community ownership. That said, the government has identified more than 120 cases where community groups have already triggered the moratorium, but only a handful where this has led to the asset actually being acquired.
The Ivy House in south London reopened as a co-operatively owned pub in August 2013 and claims to be the first building in the country successfully purchased under the CRB, taking advantage not just of the moratorium, but also the increased advice and access to funding that accompanies the CRB.
The “P” word
Planning is not mentioned in chapter 3 of parts of the Localism Act 2011, which introduced the CRB, nor in the regulations that implemented it, but has quickly become a key battlefield.
The government’s non-statutory guidance to local authorities allows them to decide how much weight, if any, to attach to ACV status when considering planning applications. That advice has inevitably led to inconsistent outcomes.
Supporters of the Chesham Arms in Hackney, having defeated the legal challenge to its ACV listing, found that the pub’s ACV status subsequently influenced the planning inspector, who rejected proposals for its conversion. They are not alone, with ACV status influencing several other planning decisions around the country.
Conversely, last year’s High Court case concerning the proposed redevelopment of East Meon Forge in Hampshire attracted considerable press coverage when the judge – Lang J – had to seek
explanation on the rules of a game of cricket. However, it also validated the planning officer’s decision to attach “negligible weight” to the property’s ACV listing, citing the “inherent limitations” of the CRB scheme.
ACV status obviously has no influence where a planning application can be avoided by relying on permitted development rights. It will already be apparent that pubs are a particularly emotive sector, sitting at the very heart of the ACV regime. However, planning permission is not required to change the use of a pub or former pub to class A1 (shops), A2 (financial and professional services) or A3 (restaurants and cafes).
Under review
The government has promised a review of all community rights during 2015, but started the year with one very specific proposal.
Apparently not satisfied that the CRB moratorium is sufficient to protect the great British pub, the government announced on 26 January that it will “at the earliest opportunity” remove permitted development rights from pubs listed as ACVs.
The following week, the Department for Communities and Local Government’s select committee made several recommendations in its sixth report on community rights, including:
• withdrawing permitted development rights from all ACVs, not just pubs;
• clarifying that ACV status should always be a material consideration on planning applications, except for minor works;
• extending the moratorium from six to nine months, but allowing it to be terminated if the community group abandons its bid; and
• allowing an appeal to the tribunal against a local authority’s refusal to list.
It will be interesting to see which of these proposals are adopted and when, bearing in mind the impending general election.
The future?
Time will tell whether the CRB can establish genuine credentials as the saviour of treasured community services, or will simply act as a brake on regenerating unprofitable properties for new uses.
In the meantime, a significant number of ACVs remain closed for business and any proposal to increase the impact of ACV listing, particularly on planning matters, will inevitably encourage more landowners to challenge the current liberal approach to listing.
Bill Chandler is a professional support lawyer at Hill Dickinson LLP
