Enforcement

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Chapter 7

Enforcement

SCOPE OF THIS CHAPTER

7.1 The Act and the Regulations contain a number of provisions which are designed to provide effective enforcement of the ACV provisions. This chapter deals with these enforcement provisions.

INTENDED EFFECT OF THE ENFORCEMENT PROVISIONS

7.2 The Government considered that the combined effect of the enforcement provisions should ensure that only a case of deliberate fraud, perpetrated with the assistance of at least one legal professional, could result in what it called ‘an ineffective non-compliant disposal’, an eventuality which, though technically possible, the Government considered extremely unlikely.¹

NON-COMPLIANT DISPOSALS ARE INEFFECTIVE

7.3 A disposal of an ACV is deemed by the Regulations to be ‘ineffective’ if it is a disposal which contravenes section 95(1) of the Act (i.e. the moratorium on disposals).²The intention is that, if a purported disposal of land is ineffective, the change of ownership does not in fact take place and the ownership of the land

¹Explanatory Memorandum to the Regulations, para 7.47. Although the Explanatory

Memorandum states that ‘only a case of deliberate fraud, perpetrated with the assistance of at least one legal professional, could result in an ineffective [sic] non-compliant disposal’, this seems incorrect because rendering non-compliant disposals ineffective is precisely what the Regulations are intended to achieve, and an ‘ineffective non-compliant disposal’ is therefore the routine effect of reg 21. The Explanatory Memorandum to the Regulations might possibly have meant to refer to a ‘registered’ non-compliant disposal instead. See further paras 7.3 and 7.15–7.17.

²Regulation 21(1). For further details of the moratorium, see paras 5.3–5.75.

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remains with the original owner.³If the disposal has erroneously been registered on the land register held under the Land Registration Act 2002, the register would have to be rectified once the fact that the sale was void was discovered.⁴

7.4 However, the provision in regulation 21(1) which renders a non-compliant disposal ineffective does not apply if the person making the disposal, having made all reasonable efforts to find out if the land to be disposed of is listed as an ACV, does not know that it is listed at the time the disposal is entered into.⁵

NOTIFICATION BY AND TO THE LOCAL AUTHORITY

7.5 The Act and the Regulations also contain a number of provisions which are intended to ensure that there is publicity in relation to ACVs. These include the following:

(a) A local authority must publish its list of assets of community value and its list of land nominated by unsuccessful community nominations,⁶and must make them available for free inspection and provide free copies of them upon request.⁷

(b) A local authority which is considering whether to list a nominated ACV must take all practicable steps to give the information that it is considering listing the land to the parish council, the owner of the land, and any leaseholders and lawful occupants.⁸

(c) Where land is included in or removed from a local authority’s list of assets of community value, the local authority must give written notice of the inclusion or removal to various specified persons, including the owner of the land, any occupier(s) of the land, the person who made the nomination (if the land was included in the list in response to a community nomination),⁹and any leaseholder and the parish council.¹⁰This notification of the inclusion of land in the list must also include details of (among other things) the

³Department for Communities and Local Government, Community Right to Bid: Non-statutory advice note for local authorities (DCLG Publications, October 2012), para 2.18 and p 29.

⁴Department for Communities and Local Government, Community Right to Bid: Non-statutory advice note for local authorities (DCLG Publications, October 2012), para 2.18 and p 29. See further para 7.17 in relation to rectification of the register.

⁵Regulation 21(2).

⁶Section 94(1).

⁷Section 94(2) and (3). See paras 3.25–3.29.

⁸Regulation 8. See para 3.92.

⁹Section 91(1) and (2).

¹⁰Regulation 9.

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consequences for the land and its owner of the land’s inclusion in the list.¹¹

(d) A landowner must notify the local authority of his intention to enter into a relevant disposal of an ACV.¹²

(e) The local authority must publicise that notification by the landowner by including details of it in the local authority’s list of ACVs.¹³The local authority must also, if the land was included in the list in response to a community nomination, give written notice of this to the person who made the nomination,¹⁴and must publicise those matters in the local area.¹⁵

(f) If, within the relevant time limit, a local authority receives notice of a written request from a community interest group (under section 95(3)) for the group to be treated as a potential bidder in relation to the ACV, the local authority must notify the owner of this¹⁶and must enter these details on the list of assets of community value.¹⁷

(g) An owner (or, where appropriate, a mortgagee) is required to inform the local authority that the land has been entered on the land register as a result of an application for first registration, and must do so as soon as is practicable after the land has been entered on the register.¹⁸

(h) An owner is required to inform the local authority if he has become the new owner of an ACV (together with giving his name and address details) and must do so as soon as practicable after becoming the owner.¹⁹

7.6 These publication and notification requirements should ensure publicity in the local and wider areas for the listing of assets as ACVs and for any proposed

¹¹Section 91(3). See paras 3.157–3.160.

¹²Section 95(2). See para 5.7.

¹³Section 97(1) and (2).

¹⁴Section 97(3).

¹⁵Section 97(4). See para 5.8...