Two new ACV appeal decisions contain important guidance on the operation of the ACV regime Chadwick v Rossendale BC CR/2015/0006 is the first appeal relating to a compensation decision. In the judgment Judge Lane:-
- states although not a necessary part of the decision that he does not consider that an owner is eligible for compensation when listing produces a diminution in value of the listed asset. This is contrary to the DCLG non-statutory guidance and a shock. Warnings will need to be given because it will make it harder when pursuing compensation claims and expectations will need to be managed.
- highlights that a loss claimed in accordance with regulation 14(3)(a) of the 2012 Regulations resulting from the operation of the moratorium provisions has to be “wholly caused” by the operation of those provisions. This gives plenty of scope for arguments to defeat such a compensation claim.
- by his approach illustrates that compensation claims will be carefully scrutinised.
- reminds everyone that the burden of proof both as regards causation and quantum rests on the claimant.
- reinforces the need to properly articulate a compensation claim at the time the claim is made in accordance with regulation 14(5).
- emphasises that local authorities have no discretion as to the operation of the moratorium provisions and have to comply with those provisions. Accordingly the owner should not be aggrieved with the authority when applying the moratorium provisions.
Wellington Pub Limited v Kensington & Chelsea BC CR/2015/0007- this appeal was concerned with whether the residential upper floors of a building with a pub on the ground floor and basement should have been included in the listing of the pub. Para. 1(5) of Schedule 1 of the 2012 Regulations provides that a building with part a residence can be listed but does not provide guidance as to when. The DCLG guidance states that a building with part in residential use which otherwise qualifies for listing should be listed if the residential part is an integral part of the building. What does integral mean for this purpose?
- reaffirmed that this will not be determined by reference to the planning position;
- rejected a submission that a flat could never be excluded from listing;
- held that to be included in the listing the residential part of the building had to have a physical and functional relationship with the remainder of the building;
- in reaching a decision on these relationships and in particular the functional relationship the historical background is taken into account.
- it was not a requirement that the residential part had to be essential to the functioning of the remainder of the building;
- upheld the authority’s decision to include the upper floors in the listing.