Assets of Community Value: chickens and eggs

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Some recent cases have considered Assets of Community Value (ACVs) where the owner is both appealing a refusal of planning permission, and is also appealing the decision to list the property as an asset of community value.  These cases helpfully demonstrate how the interrelated appeals are considered from both a planning application and listing challenge perspective.

The Alexandra Public House in Haringey closed in 2012, and was listed as an ACV in 2015. The owner bought the pub in a semi-derelict state, and made a planning application to change the building into two dwellings, as well as appealing the listing of the pub as an ACV.

The local authority refused planning permission, but the Secretary of State granted permission on appeal.  The Inspector noted “the primary purpose of ACV listing is to afford the community an opportunity to purchase the property, not to prevent otherwise acceptable development“, and while some weight was afforded to ACV listing, the Inspector found it not to be determinative.  Weight was given to the additional dwelling which would be provided, the improvement in the quality of the existing flat above the pub, the reduction in noise and anti-social behaviour for the neighbours due to the change of use, and the provision of a viable use for a run down the building.

In considering the listing appeal after planning permission had been granted, the Judge referred to the decision in the Tumbledown Dick appeal, which stated that the grant of planning permission for an alternative use should not be ignored in the context of a listing appeal.

The Tumbledown Dick case considered a historic pub, which McDonald’s agreed to purchase before the Localism Act came into force.  Shortly before the First Tier Tribunal considered the listing appeal, McDonald’s obtained planning permission for a change of use to restaurant/takeaway.  The Judge considered that the grant of planning permission, along with the sale of the freehold, substantial expenditure being required to bring the building back into use and that it had been vacant for five years made a future community use unrealistic.

The Judge noted that where permission is refused, it might make it more likely that the building would be sold at a price which could support a community use, or allow the continuation of the current community use. In this case, as planning permission for residential use had been obtained, it was much less likely that the Alexandra would be sold at a price low enough to allow a pub use.  On this basis, the Judge allowed the appeal to remove the property from the list of ACVs.

The Ship in South Norwood closed as a pub in 2014, and was listed as an ACV in 2016. The Ship was converted to residential.  The Local Authority issued an enforcement notice for the conversion of the public house into seven flats and office space, along with physical works, which the owner appealed.

In considering the enforcement appeal, the Inspector noted that the ACV listing was being challenged on the basis the decision was made outside the specified time limit, and that if the ACV status was not confirmed, the building could be used as shops, financial and professional services or restaurants or cafes under permitted development rights. While a material consideration, ACV listing did not outweigh the benefits of providing additional housing and a viable use for the building, and the appeal was allowed and permission granted for the change of use.  The Ship remains on Croydon’s list of ACVs.

These cases are helpful in showing the Secretary of State’s approach to ACV status. While it is a material consideration, in neither case did it result in planning permission being refused for a change of use which will effectively end the community use.  This is a clear departure from the view expressed by the Upper Tribunal in Banner Homes, that any permission for a change of use was likely to be refused while the asset was ACV listed, as we discussed in a previous blog.  While owners of ACVs may be reassured that planning permission has been granted as part of an assessment of fairly ordinary planning considerations, nominating groups may be dismayed that ACV status did not afford these community assets greater protection against a change of use.