Land – Asset of community value – Localism Act 2011 – Respondent council listing field as asset of community value – Appellant objecting and fencing off field – Tribunals upholding decision to list field – Appellant appealing – Whether unlawful use of field by local residents for recreational purposes qualifying use for listing purposes – Appeal dismissed
In March 2014, the first respondent council listed an area of open and undeveloped land in St Albans in Hertfordshire, known as Bedmond Lane Field, as an “asset of community value” pursuant to section 88 of the Localism Act 2011, following a nomination by the second respondent local residents’ association.
The field was some 4.83 hectares or 12 acres in extent, bisected by two public footpaths, and there were other well-trodden informal paths which cut across the field. The field had been used by the local community for more than 40 years for various peaceful and beneficial recreational activities, such as children’s play, walking, kite flying, exercising dogs, and the photography of flora and fauna. In early September 2014, the appellant landowner fenced off the field so that only the public footpaths could be accessed by members of the public. The appellant did not give express permission or grant a licence for the local community to use the field (beyond the public footpaths); but it was well-aware that it was used in this way by the local community, it made no objection and, until recently, had taken no steps to stop it.
On 2 October 2014 the first respondent’s listing decision was confirmed after a review held pursuant to section 92 of the 2011 Act; and subsequent appeals by the appellant against that listing decision were unsuccessful. It was common ground that using the field beyond the public footpaths for the recreational activities constituted a trespass. The consistent and central position of the appellant was that, as a matter of law, “actual use” for the purposes of section 88 had to mean lawful use; and since the actual use of the field by the local residents, apart from the public footpaths, was a trespass, and unlawful, it could not form the basis (or a qualifying use) for the purpose of listing an asset as being of community value. The appellant appealed.
Held: The appeal was dismissed.
(1) “Actual use” either currently or in the recent past was required before a building or other land could, in the opinion of the local authority, be an asset of community value. However, the fact that there had been actual use in either scenario was not sufficient in itself to enable a local authority to form the requisite opinion. As the wording of section 88(1) and (2) made clear, the local authority had to form an opinion in relation to an appropriately nominated asset, either that its current use furthered the social wellbeing or social interests of the local community or had furthered such use in the recent past (sections 88(1)(a) and 88(2)(a)); and that it was realistic to think that such use (whether or not in the same way) would continue, or there could be a time in the next five years when such use would do so (sections 88(1)(b) and 88(2)(b)). The issue here was a straightforward one of statutory construction. The appellant had relied on the presumption that the law should serve the public interest and also on the statutory presumption against rewarding an unlawful action with a benefit unless a contrary parliamentary intention was shown (the in bonam partem principle). However, such a binary approach was incorrect. There was no inflexible “bright line” such that any unlawfulness, no matter how slight or trivial, would prevent a use from qualifying as “actual use” for the purposes of section 88. The words “actual use” were on their face, unambiguous and, construed literally, were plainly apt to cover the actual use that the local community made of the field, before it was fenced off. Whichever canon of statutory construction was adopted, the legislative intention was plainly that “actual use”, in its statutory context, should mean what it said.
(2) Whether conduct would on public policy grounds disentitle a person from relying upon an apparently unqualified statutory provision had to be considered in context and with regard to any nexus existing between the conduct and the statutory provision. The context in relation to assets of community value was that the 2011 Act already defined the way in which the public benefit should be taken into account, by providing that an asset might only be listed if there was and would be a use to further the social wellbeing or interests of the local community. Whether those facts were established was a matter for the local authority or, on appeal, the First-tier Tribunal. The legislation had a “self-policing” mechanism. Precisely where that consideration entered into the decision of the local authority would depend on which of section 88(1) or (2) was in play. The key point was however, that an asset could only be an asset of community value for the purposes of the scheme, if there was actual use that in the opinion of the local authority furthered the social wellbeing or social interests of the local community. It could not be said that in a case such as the present that a literal interpretation would seriously damage the public interest: Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] 2 EGLR 151 followed.
(Per Davis LJ) It had been an unfortunate consequence in this case that, by reason of the nomination, the appellant felt constrained, in order to protect its commercial interests as the land owner, to fence off the field from the public footpaths. It would be a further unfortunate consequence if other land owners were to feel similarly constrained to restrict public access to their land. That might prove to be an unintended consequence of the 2011 Act. But was not, of itself, a reason for departing from the clear statutory purpose behind, and the clear statutory language of, the 2011 Act.
Douglas Edwards QC and Caroline Daly (instructed by Pitmans LLP) appeared for the appellant; Robin Hopkins (instructed by Legal. Democratic and Regulatory Services, St Albans City and District Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read transcript: Banner Homes Ltd v St Albans City and District Council and another
