Legal Requirements for a Building or other Land to Qualify for Inclusion in the List of Assets of Community Value
| Author | Simon Adamyk |
| Pages | 95-159 |
SCOPE OF THIS CHAPTER
4.1 This chapter looks at the legal requirements which need to be satisfied in order for a building or other land to qualify for inclusion in a local authority’s list of assets of community value. It also looks at the types of buildings or other land which the legislation expressly provides may not be listed.
NATURE OF THE ASSET – ‘A BUILDING OR OTHER LAND’
4.2 To qualify for inclusion in a local authority’s list of assets of community value, the asset
(a) ‘building’ includes part of a building;
(b) ‘land’ includes:
(i) part of a building;
(ii) part of any other structure; and
(iii) mines and minerals, whether or not held with the surface.
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4.3 In addition, the Explanatory Notes to the Act
4.4 The reference in Schedule 1 to the Interpretation Act 1978 to ‘land’ including an interest in land, or an easement or right in or over land, raises the intriguing possibility that an ACV need not be limited to tangible things such as the land itself or an actual building, but could in principle include, for example, a right of way over land or a right to prevent building on land (if such a right existed as a valid easement). However, the cases which have so far come before the First-tier Tribunal on appeal have all concerned tangible assets so there is no further guidance available on that point at present.
4.5 The land to which the ACV provisions apply may be of any size, may be publicly or privately owned, may lie in more than one local authority area,
4.6 The contents of a building are not covered by the Act.
LEGAL REQUIREMENTS FOR AN ASSET TO QUALIFY FOR INCLUSION IN A LOCAL AUTHORITY’S LIST OF ASSETS OF COMMUNITY VALUE – THE TWO TESTS IN SECTION 88
4.7 The key section of the ACV provisions is section 88, which defines what an ACV actually is, in other words, what the requirements are in order for an asset to qualify for inclusion in a local authority’s list of assets of community value. In
8.1–8.2.
No SN06366, ‘Assets of Community Value’, 18 December 2015, p 5.
order for a nominated asset to be listed, the statutory requirements need to be satisfied. These requirements can be satisfied in either of two separate ways, which in broad terms are as follows:
(a) either there is a present qualifying use of the land coupled with an anticipated continuing qualifying use (section 88(1));
(b) or there is a recent past qualifying use of the land coupled with an anticipated future qualifying use (section 88(2)).
First test – present qualifying use of the land coupled with an anticipated continuing qualifying use (section 88(1))
4.8 Section 88(1) provides:
… 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.
4.9 Two conditions therefore need to be met for the first test to be satisfied:
(a) There must be an actual current use of the building or other land that is not an ancillary use and which furthers the social wellbeing or social interests of the local community (the so-called ‘present condition’).
(b) It must be 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 (the so-called ‘future condition’).
The anticipated future use can be different to the current use provided that it is realistic to think that it can be carried on.
District Council [2014] UKFTT CR/2013/0009 (GRC) at [4] and [6].
District Council [2014] UKFTT CR/2013/0009 (GRC) at [4] and [11].
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4.10 These requirements are examined in more detail in the remainder of this chapter.
Second test – recent past qualifying use of the land coupled with an anticipated future qualifying use (section 88(2))
4.11 Section 88(2) provides:
… 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.
4.12 This second test only falls to be considered if the first test is not satisfied. Again, there are two conditions which need to be met for the second test to be satisfied:
(a) There must have been 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 (the so-called ‘past condition’).
(b) It must be realistic to think that there is a time in the next 5 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 (the so-called ‘future condition’).
City Council [2014] UKFTT CR/2013/0006 (GRC) at [14]; Scott v South Norfolk District Council [2014] UKFTT CR/2014/0007 (GRC) at [5].
City Council [2014] UKFTT CR/2013/0006 (GRC) at [14]; Scott v South Norfolk District Council [2014] UKFTT CR/2014/0007 (GRC) at [5].
4.13 Again, these requirements are examined in more detail in the remainder of this chapter.
‘SOCIAL WELLBEING OR SOCIAL INTERESTS OF THE LOCAL COMMUNITY’
General approach
4.14 The Act provides limited guidance on what constitutes the ‘social wellbeing or social interests of the local community’. The Act clarifies that the term ‘social interests’ includes ‘in particular’ (i.e. non-exhaustively) ‘cultural interests’, ‘recreational interests’ and ‘sporting interests’.
4.15 To a large extent, it is therefore left to the relevant local authority (which is obviously aware of local conditions, local needs and priorities) to judge what furthers or may further the social wellbeing or social interests of the local community. During the passage of the Bill through Parliament, the Government stated that:
… it is the Government’s intention to set out a definition of an asset of community value in regulations that will require local authorities to judge whether an asset meets that definition in particular local circumstances.
And the Government similarly recognised that:
what is of community value will differ in different places. One can imagine different assets coming to the attention of an...
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