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ACV listing works to ultimately save a Maida Vale favourite?

The pub formerly known as the Truscott Arms in Maida Vale, north west London will re-open as the Hero of Maida on 1 March 2018 as part of the Harcourt Inns Group of gastropubs.

The Truscott Arms closed on 4 August 2016 after the then tenant said that a 333% rent increase (amounting to extra £175,000 per annum) rendered the business unsustainable. The hike in rent appears to have been intended to override the pub’s Asset of Community Value (ACV) listing and enable it to be converted into luxury flats on account of:

  • the increased market rent (£250,000 per annum) being too much for any potential tenant to take on, making it not viable for the property to continue being used as a pub and opening it up to applications for other uses i.e. residential units; and
  • the supposed (inflated) value of the Property being too expensive for the community to acquire.

A local community group (represented by Dale Ingram of Planning for Pubs Ltd) was successful in its endeavours to have the Truscott Arms, a favourite local pub, listed as an ACV on 29 April 2015. Despite a successful challenge to this listing having been made by the then freehold owners of the pub and the pub being de-listed in August 2015, it was relisted in November 2015 and remains so today (expires 5 years from listing date).

The Friends of the Truscott Arms ACV reportedly relinquished its rights to attempt to acquire the pub themselves from the then freehold owner  – the Localism Act 2011 provides them with 6 months to attempt to do so – following assurances from the Harcourt Inns Group that they would re-open the Truscott Arms as a pub post acquisition with the intention being to “preserve this community hub and reinstate a spot for locals to come by and enjoy good food“.  Although it is not clear quite what part the ACV status had in securing the retention of the pub the issues raised by the listing clearly had an effect, and would have been a material consideration in any application for a non-pub use.

What is happening with ACV applications generally?  The pace and success of applications seems anecdotally to have slowed.  A review of the Westminster City Council website suggests that the Truscott Arms is just one of approximately 10 successful ACV nominations in the Borough since 2015, amounting to a nomination to listing success rate of 43.5% (with 13 of 23 nominations having been rejected). Interestingly, the website suggests that only 4 listing decisions (40%) have been challenged by the freehold owners, with only one other – in connection with The Prince of Wales Public House – having been successful in removing the ACV status of a Property.

The review decision for The Prince of Wales Public House dated June 2016 suggests that for there to be a realistic prospect that part of the building would, within the next 5 years, be put to a non-ancillary use that would further the social well being and interests of the local community there needs to be:

  • specific details about the types of activities that have taken place at the property in the recent past, when they took place and over what period to substantiate a non-ancillary use, particularly when the proposed non-ancillary use (i.e. music and dancing) could otherwise be seen as part of the general use of the public house; and
  • compelling evidence to contradict any existing evidence about the pub been the cause of anti-social behaviour and/or associated with criminal incidents in the recent past.

This approach may need to be reviewed.  It seems to focus a little too much on the past, rather than the future community use.  For more background information on ACVs please read some of our earlier blogs.

More planning protection for pubs

In 2015, the Government removed permitted development rights from pubs listed as Assets of Community Value (ACVs).  As previously reported, pubs which are listed as ACVs, or have been nominated to become ACVs, require planning permission for changes of use or demolition, which otherwise could be carried out under permitted development rights.

Noting the importance of pubs to local communities, some local authorities have made Article 4 Directions to remove permitted development rights from pubs. The London Borough of Wandsworth made an Article 4 Direction in August 2016 removing specified permitted development rights for changes of use, demolition and alteration for 120 identified pubs and bars.

Following Wandsworth’s lead, the London Borough of Southwark introduced an Article 4 Direction removing permitted development rights from all 188 pubs in Southwark in March 2017.  The Article 4 Direction means that planning permission will need to be obtained for specified changes of use, demolition, demolition or construction of gates, fences and walls, and exterior painting.

After discussions in Parliament in connection with the then Neighbourhood Planning Bill, the protection afforded has been further extended by the Government to cover all pubs rather than just those listed as ACVs. Section 15 of the Neighbourhood Planning Act obliges the Secretary of State to as soon as reasonably practicable make an order to remove permitted development rights for changes of use and demolition of pubs, and to grant permission for pubs to change to pub and café/restaurant use.  This requirement has been met by the making of the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017, which comes into force on 23 May 2017.

The order removes permitted development rights so in most cases pubs will instead have to apply for planning permission to:

  • change to a shop;
  • change to a restaurant or café;
  • change to a state funded school;
  • change to a temporary flexible use; or
  • to be demolished.

The order includes a new permitted development right, to allow pubs to change use to “drinking establishments with expanded food provision” and vice versa without planning permission.

The order demonstrates the importance of pubs to the Government, by requiring a planning application for a change of use other than to a pub restaurant.  While this change negates the need for communities to list their local as an ACV to prevent changes of use without planning permission, listing could still be pursued.  A local planning authority can consider ACV status as a material consideration on a planning application, and so ACV listing could be an extra factor the local planning authority has to take into account when considering an application to change the use of a pub.  This then offers an extra layer of protection for communities wanting to keep venues operating as pubs.

Assets of Community Value: chickens and eggs

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.

Lions and tigers and … Assets of Community Value

The first Asset of Community Value (ACV) case to reach the Upper Tribunal has upheld the listing of a field used by the local community without the permission of the landowner.  The decision will be of considerable interest to the owners of similar properties, considering the uses of land which can benefit the community for ACV purposes, and the bar to show a continuing community use.  The process for listing an ACV is explained here. The case has serious implications for owners allowing inoffensive use of land with development potential, including ‘meanwhile’ uses of buildings.

Backdoor village green?

fieldBedmond Lane field, located in the Green Belt and crossed by two footpaths, had been used informally by the local community for 40 years until 2014. A local residents’ association nominated it as an ACV in 2013, and it was listed by St Albans City and District Council without notice to the owner (Banner Homes) in March 2014.  Banner requested a review of the decision to list the field (and fenced the footpath/ erected notices stating “private land no unauthorised access”).  The Council decided to maintain the listing in September 2014.  Banner appealed to the First Tier Tribunal, which upheld the listing decision in April 2015.

Banner were then granted permission to appeal to the Upper Tribunal on two grounds:

  • whether the community use in Section 88(2)(a) of the Localism Act 2011 could include an unlawful use (Ground 1); and
  • whether there was a reasonable prospect of a community use in the next five years (Ground 2).

Unlawful community uses

Banner argued that use of land without permission could not meet the test for listing as an ACV.  Rejecting that, the Upper Tribunal pointed to:

  • the lack of specific exclusions in the ACV legislation for unlawful use (and allowance for criminal use in dealing with acquisition of rights by prescription);
  • the fact that the requirement for the use to further the social wellbeing or social interests of the local community provides some “inbuilt protection” from a public policy perspective; and
  • the fact that ACV registration does not create any private rights, unlike the Town and Village Green regime.

More than fanciful

On Ground 2, the Upper Tribunal rejected the argument that the ‘realistic reuse’ test under Section 88 of the Localism Act ACV regime requires anything more than a possibility (as opposed to a likelihood) of a main community use of the land in the future.  Noting Banner Homes’ insistence that it was not and never had been its intention to grant rights of access or use to the public, Levenson J concluded that the future use test was one for the local authority or the Tribunal, and “is not a matter for veto by the landowner”.

The First Tier Tribunal’s decision – that it was “not fanciful” that a community use could re-start if Banner had a change of heart – was upheld. Banner’s difficulties in securing planning permission to graze horses on the Green Belt land (and the limited chance of planning permission being obtained for other uses in the immediate future) was treated as relevant.

Planning prospects

Government guidance recognises that LPAs may treat ACV status as a material consideration.  The Upper Tribunal judgment suggests that “as a matter of planning policy any necessary permission is likely to be refused while land is listed”.  That is wrong but reflects the way that ACV listing is emerging as a trip hazard for developers.

The combination of a low bar to meet the future use test and the limited weight given to the representations of owners will be a matter of concern for the owners of potential ACV sites.  While it is sensible that the decision maker considers the property and its potential in the round, to avoid all owners promising they would never allow a community use and therefore defeating the listing of any asset, a sensible balance needs to be struck.

This case will be of concern to owners of similar development sites.  While the use of fences and notices may interrupt the creation of other rights, they may not prevent the prospect of ACV listing, and owners may wish to take concrete steps to show that it would be fanciful for the main use of the property to be a community use in the future – possibly by obtaining planning permission for a non-community use if possible.

Power to the people?

Localism remains a political priority.  The introduction of Neighbourhood Planning and the ability to nominate Assets of Community Value via the Localism Act 2011 has given communities powerful tools to control development locally.

The importance of Neighbourhood Plans has been emphasised by recent Secretary of State decisions on appeal, with several applications refused where they were considered to prejudice emerging plans, and permission granted for sites allocated in neighbourhood plans before the adoption of local plans. The initial protection provided by designated Assets of Community Value has also been expanded, with some permitted development rights removed from pubs which are listed.

These Localism measures are now being employed by communities to oppose large projects of importance to the Government.  Adjacent to Heathrow Airport, the villages of Sipson, Harmondsworth and Harlington have set up the Heathrow Villages Forum.  Having received a grant of £7,000 to create a neighbourhood plan, they have set the proposed boundary and are planning to submit it to the London Borough of Hillingdon for designation as a neighbourhood plan area.  One of the key issues identified is that the area is “blighted by the spectre of Heathrow airport expansion”, suggesting the likely approach of the Neighbourhood Plan towards expansion.

bridgeMeanwhile, Thames Central Open Spaces, a group opposing the Garden Bridge, have successfully nominated the area of the Queen’s Walk, proposed as the landing site of the Garden Bridge on the South Bank, as an Asset of Community Value.  This means that before the freehold of the land is transferred, or a lease of the land of more than 25 years is granted, in each case to allow the construction of the bridge, the land will first have to be offered to the community.  If a community interest group expresses an intention to submit a bid in the initial 6 week moratorium period, a further four and a half month moratorium will be triggered.  Only after that moratorium can the land be sold or leased.  Although there are ways to avoid the constraints, given the tight timescale for construction of the Garden Bridge, to fit with the Thames Tideway Tunnel construction, this delay could potentially cause issues.

How these local challenges are dealt with on large and politically prominent projects will be an interesting test of the Government’s commitment to Localism.  This is particularly topical following the Queen’s Speech announcement that planning applications for wind farms over 50 megawatts will be decided by local councils rather than under the Nationally Significant Infrastructure Projects regime, and the recent Ministerial Statement requiring proposals for wind energy development to be refused planning permission unless the site is identified in a Local or Neighbourhood Plan, and the proposal has the backing of affected communities.  Are we really entering a phase of power to the people?

Save the “Great British Pub”

On 6 April an amendment to the Town and Country Planning (General Permitted Development) Order 1995 came into force, placing additional restrictions on pubs which have been listed as Assets of Community Value (ACVs).

We have previously set out the steps for an asset to become listed as an ACV, and the implications once it is listed.

OldStarResearch undertaken by Planning shows that pubs are the most popular type of asset to be listed as an ACV, and they have been the subject of emotive campaigns for listing.

In January Kris Hopkins, the Community Pubs Minister, announced these changes as a measure to protect the “Great British pub” as a national treasure.

This amendment to the Order means that a pub listed as an ACV, or nominated to become an ACV, cannot change use under permitted development rights, but instead must apply for planning permission.  The permitted development rights which are not available for ACV or nominee pubs are:

  • change to a shop;
  • change to a restaurant or café;
  • change to financial and professional services premises
  • change to a temporary state funded school for a maximum of one academic year;
  • change to be used as flexible financial and professional services premises, restaurant or café or business premises for a maximum two year period; or
  • to be demolished

This pro-ACV stance contrasts with the Government’s response to a Select Committee Inquiry into community rights, in which it refused a recommendation to make ACV status a material consideration in planning applications, except for minor works.

Local planning authorities can continue to decide whether or not ACV status is a material consideration.  This leaves an interesting situation where a ACV pub could require planning permission for change of use or demolition, but its ACV status may not be a material consideration in that application for the same change which but for its ACV status could be carried out under permitted development rights.

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.