Land and buildings – Asset of community value – Localism Act 2011 – Respondent local authority listing pub as asset of community value at request of parish council – First-tier Tribunal upholding decision – Appellant freeholder appealing – Whether property capable of satisfying requirements for listing as asset of community value – Appeal dismissed
The appellant was the freeholder of premises called the Farndon Arms Public House (the property), of which the appellant was the freeholder. A 20-year lease was granted on 1 November 2007 which described the “Business” as meaning “the business of the sale on the property of intoxicating and other drinks for consumption on and off the property and the provision of food and other refreshments and recreation to the public with or without ancillary bed and breakfast accommodation”.
The Localism Act 2011 required local authorities to keep a list of land (including buildings) in their area which was of community value. The general effect of listing (usually lasting five years) was that an owner of listed land wishing to sell it had to give notice to the local authority after which any community interest group had six weeks in which to ask to be treated as a potential bidder. If any group did so the sale could not take place for six months, during which the group might make an alternative proposal. At the end of the six months it was up to the owner whether to sell and to whom and on what terms. There were arrangements to compensate owners who lost out financially in consequence of the listing.
In March 2011, a company purchased the lease. The business comprised a restaurant, a hotel and a bar. By January 2016 the business was no longer viable. The lease was surrendered in November 2016. On 20 April 2016, the second respondent parish council had applied to the first respondent local authority for the property to be listed as an asset of community value. After considering representations, the first respondent agreed to list the premises. The appellant appealed to the First-tier Tribunal (FTT) which upheld the decision of the first respondent. The FTT rejected an argument based on the Court of Appeal decision in Taylor v Courage Ltd [1993] 2 EGLR 127 (which concerned an application under Part II of the Landlord and Tenant Act 1954 for a new tenancy) and concluded that Parliament had (with limited exceptions) defined premises by their social consequences rather than their uses, and that some local groups had used the property as a meeting place at different points over the last six years.
The appellant appealed to the Upper Tribunal arguing, among other things, that the statutory language in Part II of the Landlord and Tenant Act 1954 was similar to that in section 88 of the Localism Act 2011, that the Court of Appeal decision should have been used to analyse the various actual uses of the property and that that and an analysis of the trade receipts from the various activities, together with the physical separation of the various activities, would have led to a conclusion that the actual bar use was only a minor and ancillary actual use and therefore not capable of satisfying section 88.
Held: The appeal was dismissed.
(1) The purposes of the relevant provisions of the 1954 Act (protecting the commercial interests of tenants) and those of the 2011 Act (protecting the social interests of the community) were totally different; the statutory language was different and served different purposes; the issue was not whether the property was a pub or a restaurant but whether the listing provisions of the 2011 Act were satisfied, and there was no suggestion that the Court of Appeal in Taylor v Courage Ltd intended to do anything other than apply the precise statutory wording of the 1954 Act for a very specific purpose.
(2) The Upper Tribunal could only interfere with the decision of the FTT if it made an error of law. It could not substitute its own view of the facts in the absence of error of law, but in reality that was what it was being asked to do. It was clear that the FTT had considered all the relevant evidence. It just reached different conclusions from those that the appellant was arguing it should have done.
(3) Every case for listing had to be considered on its own particular facts. The FTT had made an inaccurate statement that the 2011 Act had (with limited exceptions) defined premises by their social consequences rather than their uses. That formulation was misleading – what was relevant was the social consequences of particular uses. However, that inaccuracy had not distracted the FTT from its task of considering use and identifying non-ancillary use of the property which led it to fail properly to address the social consequences of that which had to be identified as non-ancillary use, namely the restaurant and hotel/guestroom use, as suggested by the appellant. Further, the issue was not whether specific use as a restaurant/guestroom was a non-ancillary use, but whether a use that was not ancillary furthered the social wellbeing or social interests of the local community.
(4) “Ancillary” was an ordinary word to be understood in the context of the relevant legislation and in light of the facts of any particular case, and any further comment by the Upper Tribunal on its meaning would lead to more confusion rather than less. There was no presumption that a pub came within the listing provisions of the 2011 Act, or that a business which included a pub but also other activities did not come within those provisions. However, the FTT had been entitled on the evidence to make the findings and decision that it made.
Jonathan Steinert (instructed by Freeths LLP) appeared for the appellant; Jeremy Phillips (instructed by Cheshire West and Chester Council) appeared for the first respondents; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: Admiral Taverns Ltd v Cheshire West and Chester Council and another
