Out-Law News | 05 May 2015 | 2:59 pm | 1 min. read
The site falls within the metropolitan green belt and is owned by Banner Homes. Following the ACV listing of the site in March 2014, and a review by the Council in which the listing was upheld, Banner Homes appealed to the First-Tier Tribunal.
Banner Homes subsequently erected wire fence along the entire length of the footpaths and put up signs stating "private land and no unauthorised access".
The judge rejected the Council's argument that a person's observation from a footpath of the flora and fauna of the field would constitute a use of the entire field and therefore met the Localism Act's requirement that ACVs must be in "actual current use".
He also rejected the argument that trespassory use beyond the footpaths amounted to actual current use.
However, the judge said that, given the long history of peaceable, socially beneficial use of the field, he did not consider it to be "at all fanciful" to think that, in the next five years, there could be non-ancillary use of the land.
"Whilst I note Banner Homes' current stated stance, it is not fanciful, given the history of the field, to think that Banner Homes may well conclude that their relations with the local community will be best served by restoring the status quo or by entering into some form of license agreement with the Residents Association or similar grouping," the judge said.
Planning expert Sophie Walter of Pinsent Masons, the law firm behind Out-Law.com, said: "This decision is another example of an ACV listing being upheld. Being an ACV does not in itself prevent development in the same way as town and village green status, but the status can be a material consideration for a local planning authority considering whether to grant permission for development, as was the case for a recent change of use proposal for a public house near Chippenham. Clearly developers and landowners will continue to seek to challenge ACV listings."