Tribunal judge overturns listing of allotment site as an asset of community value

Out-Law News | 11 Apr 2017 | 9:57 am | 3 min. read

A tribunal has overturned the listing of an allotment site in Lancashire as an asset of community value (ACV), on the grounds that nearby housing development makes it "highly unrealistic" that the site will ever be used as allotments again.

Ribble Valley Borough Council granted the site ACV status last year on the application of Barrow Parish Council, one month after landowners New Barrow Ltd issued the allotment holders with notices giving them one year to vacate the land.

Under the 2011 Localism Act, the owner of land listed as an ACV must notify the local authority if it wishes to sell. There is then up to a six month moratorium period during which the community may come up with a bid to buy the land and when the land cannot be sold.

In order for land to be listed as an ACV, it must be shown that a use that has furthered the social wellbeing or social interests of the local community is the actual or current use or that this has been the case "in the recent past".  It must also be realistic that such a use will continue or could do within the next 5 years.

The land on which the allotments in this case are sited is entirely surrounded by a much larger area of land, which is also owned by New Barrow Ltd. In February 2014, the communities secretary granted outline planning permission for the construction of 504 homes and associated development on this larger area of land.

In his judgment, Judge Peter Lane said although the 'actual current use' of the land was as allotments, "the future position has materially changed".

"On the particular facts of this case, the impending use of the listed land by [developer] Redrow is highly likely to last for five years and ... given the overall scheme of the 2011 Act, it is not realistic to think that use of the listed land as allotments could 'continue' ... whether or not it is realistic that allotment use might return to the land afterwards," he said.

"In any event, I find that no such resumption of allotment use is at all realistic … The listed land lies entirely within the boundaries of the development land ... One does not need to be a qualified planner to see the incongruity of leaving the listed land out of the overall residential development proposals. Notwithstanding the provisions in the licence for restoration of the land by Redrow, there is such a strong likelihood of the listed land never reverting to allotments as to make the contrary proposition entirely unrealistic," he said.

The court heard that the listed land would now be used as a site compound.

Planning law expert Elizabeth Wiseman of Pinsent Masons, the law firm behind Out-Law.com, said that the case was one of a number of recent ACV appeal decisions, all of which provided "some further guidance in relation to the ACV regime, which is helpful as there appears to be no signs of a decline in the making of community nominations".

"The key question here was whether it is realistic to think that the use of the land for allotments - a use which does further the social wellbeing or social interests of the local community – could continue," she said.

"The judge considered that matters had moved on since the original listing was made and concluded that, due to the time it would take to construct the residential development, there was a 'strong likelihood' that the land would not be used for allotments in the future. Whilst the judge could not be certain that the use would not come forward, he concluded that the re-establishment of the allotment use was 'highly unrealistic' and therefore the ACV listing should be overturned," she said.

The question of future use was further considered in a number of recent decisions in which it was held that there was no requirement for 'certainty' that the community use would come forward in the future, Wiseman said. In one case in particular, involving the site of a former gym owned by developer Henthames Ltd, South Oxfordshire Council only had to show the "possibility" of a viable future use which was supported by the local community, she said.

"From considering the recent ACV cases, it is clear that it is necessary to consider the individual facts of each case," she said.

"However, whilst it is not always possible to be certain whether a use which furthers the social wellbeing or social interests of the local community will continue, case law has shown that the decision maker must be convinced that there is an extremely limited possibility that the use can continue if they are to refuse the ACV listing," she said.