Steps to listing an asset of community value

blenIncreasing numbers of sites are being registered by community groups as Assets of Community Value or ACVs.  These range from community pubs to mountains to premiership football grounds – in July, the Lakeland fell Blencathra was listed, and both Anfield and Old Trafford are already  ACVs.   There have been press reports of buildings or land being listed with the aim of maintaining the current use for the local community, but there is some confusion about what listing as an ACV means for the site and the owner.

ACV listing was meant to be about giving a community a chance to purchase an asset if it was viable to do so.  It provides a relatively sensible balance between the interests of land owners and the needs of the community.  The Ivy House in Nunhead was one of the first pubs to be nominated as an ACV.  It was purchased by a community group during the moratorium (see below) and is now run as a co-operative.

ACV status was not meant to be a material consideration in determining planning applications although it was, perhaps, inevitable that it would become one.  The difficulty is that ACV listing might lead to the refusal of consent for change of use where there is no earthly chance of the asset ever being re-used for the community purpose it was listed for.  That is not such a sensible balance.

The table below briefly sets out the listing process, outlining the steps required to list an asset, and the implications of listing on a sale or the grant or assignment of a lease of an ACV.

Listing

Time Action
Day 1 Building or land is nominated to the local authority by a parish council (in England) or a community council (in Wales) or a voluntary or community body with a local connection.
Up to 8 weeks later The local authority has eight weeks to consider whether or not to list the asset, and must keep the owner, any occupier of the land, the nominating group and the parish council informed.
Further 8 weeks The owner of the ACV has eight weeks from the date they were informed of the listing to ask the local authority to carry out an internal review of the decision to list the building or land if they are unhappy with the result.
Another 8 weeks The local authority has eight weeks from the date they received the request to review their decision and inform the owner, unless a longer period is agreed.
28 days If the owner is unhappy with the result of the internal review, they may appeal the decision to the First Tier Tribunal.  They must make the appeal within 28 days of the local authority sending their review decision to the owner.
Five years from listing The local authority must remove ACVs from the list on the fifth anniversary of the asset first being placed on the list, unless it has been removed earlier for any reason, for example as a result of an appeal.

Sale of an ACV

Time Action
Day 1 If the owner decides to sell the ACV, or grant or assign a lease of 25 years or more, they must inform the local authority, subject to some  exemptions.  The local authority will then inform the group who nominated the ACV and publicise the proposed sale.
6 weeks There is a six week interim moratorium period from the date the owner notifies the local authority, during which time a community interest group can make a bid.  During this period, the owner can only enter an agreement to sell to a community interest group.
If no community interest group has made a bid, the ACV may be sold or leased to any party after the end of the six week period.
If a group has made a bid, there is a further four and a half months of moratorium during which the community group can prepare a business plan and arrange finance, and during which time the owner may only sell the ACV to a community interest group.
Further 4.5 months The moratorium period ends six months after the date the owner informed the local authority of their intention to sell or grant a 25 year plus lease.  After the end of the moratorium, the owner may sell to any party within the next year.
One year from the end of the moratorium If no sale is made within that year, a further moratorium process must be followed before the owner can sell or grant a lease of the ACV.

 

Environmental Impact Assessment Directive: tinkering one step closer

The European Parliament and the Council of Minsters have approved the Commission’s proposed changes to the EIA Directive. The Directive covers more than 200 types of project, including bridges, ports, motorways, landfill sites and some intensive agricultural operations, as well as urban development projects. The Directive has been amended three times since its adoption in 1985 and was harmonised in 2011.

Reform agenda

Following lengthy consultation, the European Parliament published a revised draft Directive in October 2013 with the aim of making EIA clearer, ensuring assessments both take account of biodiversity and climate change and involve the public.  The European Parliament has now agreed a significantly diluted version. Key changes to the regime will include:

  • signsNew environmental topics: including biodiversity, climate change, land, human health and natural and man-made disaster risk
  • More detailed screening procedures
  • More detailed analysis of reasonable alternatives considered by the developer
  • A requirement for EIA to be either undertaken or reviewed by accredited experts
  • Greater clarity on mitigation
  • Monitoring requirements will apply for higher risk projects
  • Specific timeframes for key stages of the EIA process.

Timing

The changes will come into force 20 days after publication in the European Union’s Official Journal and the UK will have 3 years to transpose it through any changes to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The Government has indicated that it will make changes in 2016.

Money Back Guarantee for Planning?

money-back-guaranteeThe Growth and Infrastructure Act 2013 introduced several measures to speed up the planning process.  We have recently reviewed a report by Cambridge Centre for Housing & Planning Research on the impact of the “Planning Guarantee” element. It confirms our experience, that whilst the introduction of a negative incentive has triggered reform in many areas, there is also a real risk that decisions are taken badly as authorities seek to resist losing funds.

The Planning Guarantee requires local planning authorities (LPAs) to refund fees for planning applications not decided within 26 weeks (unless there is an agreed extension). It also allow applicants to apply directly to the Secretary of State where an LPA is designated as poorly performing – because it does not determine 30% of applications within 13 weeks, or more than 20% of its decisions on major applications are overturned on appeal.

The report confirms that the targets have had both positive and negative impacts on LPA processes.  While some LPAs have reviewed their practices and improved their service, in other LPAs the targets have led to perverse results.

  • Some of the more successful authorities have reviewed their processes alongside feedback to focus on good customer service. This approach is often accompanied with detailed pre-application discussions, including the preparation of section 106 agreements before Committee. However, this approach received mixed responses from the parties surveyed, with some complaining of increased costs and timescales, while others found this approach helpful.
  • Other consultees reported a willingness by some authorities to refuse applications and request new applications rather than miss a target or risk the return of the application fee. They noted a greater likelihood of unresolved issues being pushed back into conditions rather than being dealt with pre-decision.
  • Some responses questioned the helpfulness of targets, which do not identify re-submitted applications, or appeals of decisions on non-major applications.
  • Some respondents also reported particularly slow further progress if a target is misssed.
  • Responses also stated that a high number of approvals within the target time did not necessarily correlate with a higher rate of starts and completions.

For more details on our review, please see the full article on LexisPSL website.

Promoting neighbourhood development

The first Neighbourhood Development Order is in progress.  Cockermouth Town Council has submitted an NDO to Allerdale Borough Council for consultation.  NDOs allow a neighbourhood forum to permit a particular type of development without planning permission. 

The proposals put forward in Cockermouth aim to conserve the town’s traditional character and boost the local economy.  The plan focuses on attracting people to the area around the market square by improving its appearance, encouraging bars and cafes and enabling additional housing.  If passed, the proposals will allow the following development without planning permission:

  • change the use of shops and offices to cafes, bars or restaurants and allow pavement tables and chairs within the Cockermouth Market Place;
  • convert the space above commercial premises on Main Street and Station Street into up to four flats;
  • replace shop fronts on Main Street and Station Street in compliance with a design guide; and
  • install sash windows and panelled wooden doors on several streets following a design guide.

Allerdale are consulting on the proposed orders until 23 December.  After the consultation period, the proposals will be considered by an Inspector, and if passed, will be voted on at a local referendum before coming into force.

These proposed permitted developments reflect measures encouraged by the Government to improve footfall in town centre areas.  While the aim of the NDO is good it raises the question of why planning permission should be required for these changes in the first place.

Localist approach?

Is there an increasingly localist approach to planning in the National Planning Practice Guidance?  The new Guidance (which as emphasised in an earlier post is just guidance) notes in paragraph 3 of the Neighbourhood Planning section that the neighbourhood plan sits alongside the Local Plan.  This contrasts with both the NPPF and the Town and Country Planning Act 1990, which state that neighbourhood plans must conform with local plans.

This is particularly interesting when considering the draft neighbourhood plan in Tattenhall, Cheshire.  To preserve the village’s character the plan proposes that any housing developments should be limited to 30 houses.  A new draft local plan for the area is currently under consultation, and it is possible that the neighbourhood plan will come into effect before the local plan is finalised.

Tattenhall’s neighbourhood plan was approved in August but was unsurprisingly challenged by three housebuilders, all of whom have applied for larger developments in the area.  A threatened injunction to prevent a ballot on the plan was dropped, but two of the developers are seeking judicial review of the plan’s approval following a record 96% majority in the local referendum.  The referendum also achieved the highest turnout of any neighbourhood plan referendum so far at 52%.  The Courts should reject any suggestion that the NPPG has changed the legal requirements but maybe the political goal posts are shifting.