'The Halfway House' could be the name of any public house in the United Kingdom.  Equally it could apply to the recent proposals for the safeguarding of some public houses, in fact only those public houses that have first been listed as an Asset of Community Value (ACV).

The listing process is set out in Part 5 of Chapter 3 of the Localism Act 2011, the Assets of Community Value (England) Regulations 2012, and non-statutory guidance dated October 2012.

An asset (land or buildings) can be nominated by a range of voluntary or community organisations with a local connection. If the nominated asset falls within the definition of an ACV and has been nominated by a qualifying organisation, the local authority must include the asset on its list.  Within a statutory time limit the owner may request a review of that decision and if it is upheld, he may appeal to the First Tier Tribunal. 

The nominating party does not have to prove the asset should be listed on “the balance of probabilities”, but the much lower test if, in the opinion of the local authority “it is realistic to think” that use of the building or land furthers the social wellbeing or social interests of the local community[1] and it is realistic to think that the use can continue.

When a listed asset is put up for sale a moratorium on the sale will be applied. First, an initial six week interim period, during which a qualifying community group must express an interest in bidding.  If one does, then there is a six-month moratorium (including the interim moratorium period), to allow the group to put a bid together. There is no compulsion on the owner of the ACV to sell it, nor any restriction on what the owner can do while they own it. This means that the community bid may not be the successful one.  At the end of the moratorium the owner may sell to whomever they choose. The provisions are not in force in Wales, and the Scottish scheme differs with the community group having first refusal to buy the asset. 

The past 6 or 7 years saw the number of pub closures accelerate. Reasons cited include the smoking ban, supermarket alcohol sales and a lack of planning control. The permitted development regime has seen supermarkets acquire pubs to convert them for use as mini-supermarkets without the need for full planning permission. Local groups have responded by seeking to list public houses as ACVs in an attempt to protect them from closure or from a change of use.

A Motion supported by cross party MPs entitled “Demolition and change of use of pubs buildings”[2] was tabled in July 2014 in the House of Commons.  This urged the Government to bring forward amendments to the General Permitted Development Order 1995 so that any demolition or change of use involving the loss of public house would require planning permission.  In January 2015 ministers announced protection for public houses in the form of “secondary legislation at the earliest opportunity so that in England the listing of a pub [as ACV] will trigger a removal of the national permitted development rights for the change of use or demolition of those pubs that communities have identified as providing the most community benefit”[3]. Implementation of the proposals would mean that for a public house listed as an ACV, a planning application would be required for change of use or demolition. An ACV listing could then also trigger planning enforcement where demolition or a change of use takes place without planning permission. 

A recent Committee report[4] proposed further protections recommending that Government consult on amending guidance “so that ACV listing is a material consideration for local authorities in all planning applications other than those for minor works”. If implemented this would provide more protection than is currently afforded through the non-statutory 2012 guidance which allows local authorities to decide for themselves whether ACV listing is a material consideration or not[5]. The Committee also recommended:

  • a compensation fund for properties listed as ACVs;
  • a longer moratorium on the sale of an ACV of nine months;
  • an immediate end to the moratorium where a community group bid is abandoned;
  • a nominator's right of appeal against a local authority decision not to list an asset as an ACV; and
  • removal of the exemption from the moratorium sales as a going concern.

A significant body of opinion is being generated with a view to saving public houses. The Committee identified that 11 assets had been bought by community groups and 22 groups had triggered a moratorium period.  Of a total of about 1800 listed assets, some 500 are public houses and the first asset to be bought by a local community was The Ivy House Pub in Nunhead, Suffolk. Of the 16 or so First Tribunal appeals considered, 11 concerned the listing of public houses, 9 of which were successful in retaining the ACV listing.

Given the proposed changes to permitted development rights are based upon the successful listing of a public house as an ACV, more ACV applications are likely to be made as a result.

References

  1. Section 88(1)(a) Localism Act 2011
  2. See Early Day Motion 208 tabled 2 July 2014 by Charlotte Leslie and sponsored by Annette Brooke, Bob Blackman, Michael Connarty, Caroline Lucas and Tony Cunningham. 
  3. See Written Statement to Parliament delivered 26 January 2015 from DCLG and Kris Hopkins MP.
  4. Communities and Local Government Committee Report 5 February 2015.
  5. See Assets of Community Value Note dated 9 February 2015 Parliamentary and Constitution Centre, House of Commons Library (reference SN/PC/06366) see page 7; and the October 2012 non statutory guidance page 6.