Norfolk pub to be removed from list of ACVs, tribunal rules

Out-Law News | 21 Aug 2014 | 5:12 pm | 2 min. read

A tribunal has upheld a challenge to South Norfolk Council's decision to list a closed pub as an asset of community value (ACV), after concluding that the Council had failed to demonstrate that the pub had been in community use in the recent past.

The Localism Act 2011 requires local authorities to maintain a list of land and buildings of community value. In order for an asset to be listed as an ACV, the Act requires that it has been in community use "in the recent past" and that there are realistic prospects of its returning to community use "in the next five years".

The Council added the Kings Head pub in Pulham St Mary to its list of ACVs in October 2013, following a request from Pulham St Mary Parish Council. The owner of the pub, GK Scott, applied unsuccessfully for a review of the decision and subsequently appealed to the First Tier Tribunal. Scott contended that the Council was unable to demonstrate that the pub, which had been closed since 2007, had been in community use "in the recent past" as required by the Act.

Upholding the appeal, judge NJ Warren noted that, in drafting the Act, Parliament had used the vaguer term “in the recent past” for the test for past use, while using a definite “five year period” for potential future use of a proposed ACV. While maintaining that “where Parliament has opted for a loose expression, it is not the tribunal’s role to undermine that by giving the phrase a meaning which is certain”, the judge noted that the officer who reviewed the case on behalf of South Norfolk had himself used the phrase: “The pub is not currently in use, nor has it been used in the recent past”.

“The reviewing officer found as a fact that there had been no community use of the building in the recent past because of the six year closure period,” said the judge. “It seems to me that in the circumstances it would be quite unfair if I took a different view.”

The judge also considered a submission from South Norfolk Council that the judge should “interfere with their decision only if the decision is so irrational that no reasonable council could have reached it”, the test before judges in judicial review proceedings. Rejecting this submission, the judge distinguished the First Tier Tribunal from judicial review proceedings, concluding that “this is an ordinary right of appeal, on fact and law”.

"It will be interesting to see how the definition of 'in the recent past' is interpreted in less clear-cut future cases," said Mike Pocock, planning law expert at Pinsent Masons, the law firm behind "The local authority in this case made it very difficult for the tribunal judge to decide in its favour, by expressly using the language in the Localism Act and making a decision in direct contravention of its terms."

“This is not the first time that the First-Tier Tribunal has reversed the decision of an authority and it demonstrates that there is merit in spending time in considering an appeal,” added Pocock.