Land – Asset of community value (ACV) – Localism Act 2011 – Sports ground nominated for inclusion in defendant local authority’s list of ACVs – Defendant agreeing to purchase land from interested party subject to planning permission for residential development – Defendant not including land on list – Claimant applying for judicial review – Whether “realistic to think” land could continue to be used by local community – Whether defendant correctly applying statutory test – Application granted
The claimant, a community interest company, challenged the decision of the defendant local authority to refuse to include a sports ground, on Oldfield Lane, Wortley, Leeds in a list of assets of community value (ACVs). The list was required to be maintained under section 87(1) of the Localism Act 2011.
Part of the land was owned by the defendant and part by the interested party which had a 99-year lease of the part owned by the defendant. The defendant agreed to purchase part of the land owned by the interested party, with the latter agreeing to surrender its lease to the defendant. The agreement was conditional upon the grant of planning permission by the defendant (as local planning authority) for residential development.
The land was a longstanding sports field, used by the local community for informal leisure and recreational activities and, following recent restoration works, informally as a sports field.
The claimant’s predecessor had applied to add the sports ground to the defendant’s list of ACVs. That application was rejected in June 2020, but that decision was ultimately quashed by the High Court with the consent of the defendant in November 2020.
The application was redetermined and refused again on the basis that it was not realistic to think that there could continue to be non-ancillary use of the site to satisfy the statutory test, in section 88(1)(b) of the 2011 Act, of furthering the social well-being or social interests of the local community: The land had been allocated for housing in the local plan and the defendant had firm and settled plans to develop the land for housing. The claimant applied for judicial review.
Held: The application was granted.
(1) Although the decisions of the First-tier Tribunal had no authority as precedents, the construction of section 88(1)(b) adopted by Judge Warren who, as President of the General Regulatory Chamber of the First-tier Tribunal, decided the first appeals brought against decisions to include land and buildings in the list of ACVs, and thereafter consistently followed, was correct. The legislation did not require only one “realistic” future use of a building or other land. Several possibilities might each be realistic. The legislation did not require a potential future use to be more likely than not to come into being, in order for it to be realistic. The fact that the most likely of a number of scenarios was one which would not satisfy the statutory criteria (e.g. a change of use from pub to residential) did not mean that any other potential future use was, without more, rendered unrealistic. It was only if the non-compliant scenario was so likely to occur as to render any compliant scenario unrealistic, that the non-compliant scenario would be determinative of the nomination: Patel v London Borough of Hackney [2013] UKFTT CR/2013/0005, Gullivers Bowls Club Ltd v Rother District Council [2014] UKFTT CR/2013/0009, Worthy Developments Ltd v Forest of Dean District Council [2014] UKFTT CR/2014/0005, Haley (trading as Old Boot Inn) v West Berkshire District Council [2016] CR/2015/0008) and Banner Homes Ltd v St Albans City and District Council [2018] EWCA Civ 1187; [2018] PLSCS 96 considered.
(2) It was clear that there could be only one correct statutory construction of section 88(1)(b). It was equally clear that a local authority had to adopt that construction, in deciding whether to accept a nomination. To hold otherwise would render the statutory scheme incoherent. The fact that a refusal to nominate could be challenged only on conventional public law grounds was nothing to the point. If, adopting a correct approach to section 88(1)(b), an authority concluded that the test was not met, the mere fact that some other hypothetical authority, following the same approach, might have concluded differently would be immaterial to any assessment of the legality of the first authority’s decision. However, that was the extent of the significance of the words “in the opinion of the authority” in section 88(1).
By using the “realistic to think” test, parliament had set a standard which meant that a local authority was not to approach the future use of land as necessarily a binary issue, as between the current intention of the owner and the current proposals of the nominator. Although the development intentions of the owner would be relevant, particularly in the planning context, any factors casting doubt on the owner’s ability to achieve those aims had to be considered. It was on the strength of those doubts that the “realistic” nature or otherwise of the envisaged social use might depend.
(3) In the present case, the defendant had failed to make any reference to countervailing matters, which might affect its ability to deliver its development proposals and, thus, make it “realistic to think” that the existing social uses of the land could continue for the purpose of section 88(1)(b).
Its decision conspicuously failed to adopt the broad evaluative approach required. In particular, the decision displayed no appreciation of the important point that it might be “realistic to think” that a relevant use could continue, even if that use was not the most likely future possibility. In all the circumstances, the defendant did not understand correctly the law that regulated its decision-making under section 88. Without any consideration of countervailing factors, the defendant had applied a wholly one-sided test and had failed to conduct the required holistic analysis.
(4) The defendant failed to avoid the appearance of bias against the background of having entered into an obligation to use reasonable endeavours to have the ACV nomination dismissed as part of its own development plans. The terms of the agreement and the contents of the decision, taken together, were such as to give rise to the appearance of apparent bias. The terms of the agreement, so far as they bore on the ACV issue, were such that the observer would expect the defendant’s decision to be meticulous in addressing all the relevant factors concerning whether it was “realistic to think” that social uses of the land could continue.
Jenny Wigley QC (instructed by Leigh Day) appeared for the claimant; Timothy Straker QC and Vivienne Sedgley (instructed by Leeds City Council Legal Services) appeared for the defendant; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of TV Harrison CIC) v Leeds City Council
