Banner Homes Ltd v St Albans City and District Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Davis,Sir Rupert Jackson |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1187 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2018 |
| Docket Number | Case No: C3/2016/2861 |
[2018] EWCA Civ 1187
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
HH Judge Levenson
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lady Justice Sharp
and
Sir Rupert Jackson
Case No: C3/2016/2861
Douglas Edwards QC and Caroline Daly (instructed by Pitmans LLP) for the Appellant
Robin Hopkins (instructed by Legal. Democratic and Regulatory Services, St Albans City and District Council) for the Respondent
Hearing date: 20 February 2018
Judgment Approved
Introduction
In St Albans in Hertfordshire is an area of open and undeveloped land known as Bedmond Lane Field (the Field). The Field has been owned by Banner Homes Limited (Banner Homes), the appellant, since 1996 and is situated in the Metropolitan Green Belt area. The Field is some 4.83 hectares or 12 acres in extent. It is bisected by two public footpaths, and there are other well trodden informal paths or ‘desire lines’ which cut across the Field.
The Field has been used by the local community for more than 40 years for various peaceful and beneficial recreational activities, such as children's play, walking, kite flying, exercising dogs, and the photography of flora and fauna. Banner Homes did not give express permission or grant a licence for the local community to use the Field (beyond the public footpaths); but it was well-aware the Field was used in this way by the local community, it made no objection, and until recently, it took no steps to stop it.
In March 2014 the first respondent, St Albans and City District Council (the Council) listed the Field as an “asset of community value” pursuant to section 88 of the Localism Act 2011 (the 2011 Act), following a nomination by a local residents' association, namely the Verulam Residents' Association (the Residents' Association) the second respondent. 1 In early September 2014, Banner Homes fenced off the Field so that only the public footpaths could be accessed by members of the public. This remains the position today.
On 2 October 2014 the Council's listing decision was confirmed after a review held pursuant to section 92 of the 2011 Act; and subsequent appeals by Banner Homes against that listing decision were unsuccessful. The First-tier Tribunal (Judge Peter Lane, as he then was, President of the General Regulatory Chamber) dismissed Banner Homes' appeal on 6 April 2015; and the Upper Tribunal (Judge Levenson) confirmed the First-tier Tribunal's decision on 14 May 2016.
It is common ground that using the Field beyond the public footpaths, for the recreational activities mentioned above, constituted a trespass (or ‘trespassory’ use). The single issue that arises in this appeal is whether such unlawful use can constitute a qualifying use (or “actual use” to use the statutory language) for the purpose of listing an asset as an “asset of community value” pursuant to section 88 of the 2011 Act.
This turns on a short point of statutory construction, namely whether, as Banner Homes argues, section 88 of the 2011 Act should be construed in accordance with the in bonam partem principle. The issue of construction requires this court to consider the reasoning of the Supreme Court in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 AC 304.
The legal and factual background
The “assets of community value” scheme (the Scheme) is contained in Chapter 3 of Part 5 of the 2011 Act. The 2011 Act applies to England and Wales, and (for England only) is supplemented by the Assets of Community Value (England) Regulations SI/2012/2 (the 2012 Regulations). This legislation came into force on 20 September 2012. Chapter 3 is headed “Assets of Community Value” and Part 5 is headed “Community Empowerment”. This case is the first occasion on which the Scheme has been considered by the Court of Appeal.
On 4 October 2012, The Department for Communities and Local Government published a non statutory advice note for local authorities on the “ Community Right to Bid.” The Ministerial Foreword, which provides a convenient introduction to the Scheme, says:
“From local pubs and shops to village halls and community centres, the past decade has seen many communities lose local amenities and buildings that are of great importance to them. As a result they find themselves bereft of the assets that can help to contribute to the development of vibrant and active communities. However, on a more positive note, the past decade has also seen a significant rise in communities becoming more active and joining together to save and take over assets which are significant for them.
Part 5 Chapter 3 of the Localism Act, and the Assets of Community Value (England) Regulations, which together deliver the Community Right to Bid, aim to encourage more of this type of community-focused, locally-led action by providing an important tool to help communities looking to take over and run local assets. The scheme will give communities the opportunity to identify assets of community value and have them listed and, when they are put up for sale, more time to raise finance and prepare to bid for them.
This scheme requires an excellent understanding of the needs of the local community. As such local authorities will have a pivotal role in implementing the Community Right to Bid, working with local communities to decide on asset listing, ensuring asset owners understand the consequences of listing, enforcing the Moratorium period and in taking decisions as part of any appeals process.” 2
It goes on to say (at p.5)
“We want to give many more communities the opportunity to take control of assets and facilities in their neighbourhoods by levelling the playing field by providing the time for them to prepare a proposal.”
The first paragraph of the judgment of the First-tier Tribunal in this case ( [2015] UKFTT CR2014/0018 (GRC)) replicates those in other First-tier Tribunal decisions on the 2011 Act, and gives the following overview of the Scheme's essential features.
The Localism Act requires local authorities to keep a list of assets (meaning building or other land) that are of community value. Once an asset is placed on the list, it will usually remain there for five years. The effect of the listing is that, generally speaking, an owner intending to sell the asset must give notice to the local authority. A community interest group then has six weeks in which to ask to be treated as a potential bidder. If it does so, the sale cannot take place for six months. The theory is that this period, known as a moratorium, will allow the community group to come up with an alternative proposal; although at the end of moratorium, it is entirely up to the owner whether the sale goes through, to whom and for how much. There are arrangements for the local authority to pay compensation to an owner who loses money in consequence of the asset being listed.
The Scheme therefore confers a right to bid (to a local community group as defined in the 2011 Act), but not a right to buy.
Section 87 of the 2011 Act provides in part as follows.
“(1) A local authority must maintain a list of land in its area that is land of community value.
(2) The list maintained under subsection (1) by a local authority is to be known as its list of assets of community value.”
Section 88 of the 2011 Act defines “assets of community value” (though the section uses the phrase “land of community value”). It provides in part that:
“(1)… a building or other land in a local authority's area is land of community value if in the opinion of the authority—
(a) an actual current use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and
(b) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.
(2) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority's area that is not land of community value as a result of subsection (1), is land of community value if in the opinion of the local authority—
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and
(b) it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.
…
(6) In this section—
“social interests” includes (in particular) each of the following—
(a) cultural interests;
(b) recreational interests;
(c) sporting interests;
As can be seen, actual use either currently or in the recent past is required before a building or other land can, in the opinion of the local authority, be an asset of community value: see section 88(1)(a) and section 88(2)(a)) of the 2011 Act.
However, the fact that there has been actual use in either scenario is not sufficient in itself to enable a local authority to form the requisite opinion. As the wording of section 88(1) and (2) makes clear, the local authority must form an opinion in relation to an appropriately nominated asset, either that its current use furthers the social wellbeing or social interests of the local community or has furthered such use in the recent past (see sections 88(1)(a) and section 88(2)(a)); and that it is realistic to think...
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