The First-Tier Tribunal has confirmed that agricultural land should remain listed as an Asset of Community Value, concluding that the public walking across the land was not merely an ancillary use of the land.

When can land be designated as an ACV?

A building or other land may be an ACV if a principal use of the asset furthers (or has recently furthered) the community's social well-being or social interests. The local authority cannot just determine that something is an ACV of its own volition; it can only include land in its ACV list in response to a "community nomination".

If land is put on the ACV list, it will usually remain there for five years.

Why did the First-Tier Tribunal uphold the ACV listing?

The case of Oliver’s Battery Limited v Winchester City Council, Oliver’s Battery Parish Council concerned agricultural land, which had, for the past few years, been participating in the EU set-aside programme, administered under the Basic Payment Scheme. Effectively, this meant that it has been left uncultivated. Nevertheless, its use was agricultural.

Conflicting evidence was given in the case – members of the public stated that they used the land for a variety of activities, including running, walking, dog walking, and horse riding; the Director of Oliver’s Battery Limited said that he had not seen anyone on the land on the majority of occasions, apart from the occasional dog walker and horse rider.

The court acknowledged that the use of the land was, in part anyway, trespass. However, in following the Court of Appeal’s decision in Banner Homes, it stated that ‘there is no requirement for actual current use pursuant to s. 88(1) to be lawful use. I therefore find that the actual current use of the northern part of the Land by the local community is a qualifying use for the purposes of s. 88(1)(a) notwithstanding that this use is largely trespassory.’

The key, and surprising, finding, however, was that the public’s use of the land was not ancillary to the agricultural use. If the land had been used for crops, would the decision have been different? Even with the ACV listing, there would be nothing to stop the landowner from using the land for other agricultural purposes which could, effectively, prevent the public from walking across the additional paths and desire lines that were alleged to have developed following repeated use.

Why was an application for an ACV listing made?

As in most ACV and Town and Village Green (TVG) cases, it is likely that the public were concerned that the land would be developed. The director of Oliver’s Battery stated that it was ‘not realistic to think that any use of the Land by the public could continue as he [intended] to obtain planning permission to build houses.’

The case is another example of how disgruntled locals can use an ACV listing to thwart development. Whilst the ACV status of the land will not prevent the owners from disposing of it, it will restrict the market for it. Also, whilst the land remains listed as an ACV, it is unlikely that planning permission for development will be granted unless specific planning policies in adopted Local Plans provide for the development of such land.