In 2012 we blogged on the introduction of the nomination and listing of Assets of Community Value. At the time, there was some uncertainty as to whether the legislation would be used for genuine community enhancement, or as a stick to beat developers.
In a move that will be well received by community groups, the First-Tier Tribunal clarified the test to determine when a building can qualify as an ACV in the case of Evenden Estates v Brighton and Hove City Council.
At the centre of the case was the question of whether a closed pub could have a community use in the next five years, particularly where an application for planning permission for conversion into residential use was still pending determination. In defending its decision to make the listing, Brighton and Hove City Council simply had to demonstrate that: “it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.”
The Tribunal found that the community use test was met. Whilst the planning application remained undetermined, it was not unrealistic to imagine that, were the application to be refused, the pub would be marketed under its existing permitted use, either as a pub, or another use that furthered social interests.
The ruling may be of concern to developers who have purchased closed pubs and are awaiting planning permission, particularly those facing strong opposition from local pressure groups. Such groups may make applications to register the sites as ACVs, knowing that registration would mean a potential, disruptive, six-month moratorium if the developer were to try to market the property before redevelopment takes place.
Case: Evenden Estates v Brighton and Hove City Council and another  UKFTT CR_2014_0015 (GRC).