Community rights to land remain a live issue. Changes to the town and village green regime introduced in 2006 were sufficiently disastrous to warrant neutering via the Growth and Infrastructure Act 2013. A recent Upper Tribunal decision on the assets of community value (ACV) regime introduced by the Localism Act 2011 offers food for thought.

Land may be listed under section 88 of the 2011 act where it has an "actual or current" main use that furthers social wellbeing or social interest for the local community and it is "realistic to think" that this use can continue, or, where the use is only "recent", that it could resume within the next five years. Sales and long lets of ACVs are restricted, giving community groups six months to exercise a "right to bid" to acquire or lease the land.

ACV status alone rarely presents owners with a headache, particularly where assets are held by a special purpose vehicle. But because ACV status is routinely treated as material to planning, it is increasingly worthy of concern. The Upper Tribunal case followed a housebuilder’s acquisition of a green belt site that had a 40-year history of use for walking and public recreation. A residents’ group succeeded in getting the site listed as an ACV. On appeal, the council and the First Tier Tribunal (FTT) rejected the developer’s argument that an unlawful use involving trespass cannot give rise to ACV status.

The tribunal held that an "actual use" need not be exclusively lawful. It distinguished cases involving calculated deception and noted that some access rights may accrue through the passage of time despite criminal behaviour. It also upheld the FTT’s finding that the appeal site’s history and green belt status meant it was "not fanciful" to suppose that it might be used again by the community in the next five years, even though the owner had ruled out future access. Given that section 88 refers to the possibility rather than the likelihood of future use, this makes sense. It is consistent with FTT decisions where the demolition of buildings has not been considered a bar to their possible reuse.

With ACV status increasingly cited in the refusal of applications, total closure of land is more likely to limit the threat of ACV designation. This will undermine access to the countryside and temporary community use. The focus should shift to whether this is sensible, and whether ACV status can reasonably be a material consideration where there is no prospect of a legal right of access.

(BHL v St Albans City and District Council; Date: 11 May 2016; Ref: [2016] UKUT 232 (AAC))

This article appeared in Planning Magazine, 29 July 2016