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VILLAGE
GREEN LAW & ASSETS OF COMMUNITY VALUE
UPDATE
13TH
JANUARY 2014
VILLAGE
GREEN UPDATE
The
following TVG cases are before the Supreme Court
this year:
1.
Taylor
v Betterment Properties (Weymouth) Ltd [2012] EWCA
Civ
250
Paddico (267) Ltd v Kirklees Metropolitan Council
[2012] EWCA Civ 262
These
conjoined appeals are due to be heard this week on
15/01/2014. The issue in both concerns that of the
delay in making the application for cancellation
of the TVG entry in the register. Put shortly,
will prolonged delay preclude the remedy under
section 14(b) of the Commons Registration Act
1965?
2.
Barkas
v North Yorkshire County Council & Scarborough
Borough Council [2012] EWHC 3653
(Admin)
The appeal is due to be heard on 2/04/2014.
Permission to appeal has been granted on the issue
of whether the Housing Acts confer a legal right
for non-tenants to use the land. It was the
decision of the CA that whenever land is made
available and maintained as public open space by
the exercise of statutory powers under the HAs
then it is used by the public ‘by right’ and not
‘as of right’. Making land available for such
purposes is treated as a form of
appropriation.
3.
Newhaven
Port and Properties Ltd v East Sussex County
Council & Newhaven Town Council &
Secretary of State for the DEFRA [2012] EWHC 647
(Admin)
Permission to appeal was only recently granted on
2/12/2013. The issues before the SC are these: (a)
as to the registrability of a tidal beach (b)
whether the existence of byelaws gives rise to
permissive use (c) statutory incompatibility –
will land be registrable if that would be in
conflict with the statutory purpose for which the
land is held, and (d) human rights – was section
15(4) CA 2006 (and the 5 year period of grace
applicable to user ending before 6/04/2007)
incompatible with Art/1 of the First Protocol of
the ECHR?
___________________________________________________________________
ASSETS
OF COMMUNITY VALUE
4.
The village green reforms under the Growth &
Infrastructure Act 2013 will now trump many
applications which previously would have been
accepted for registration. However practitioners
should now keep their eyes on the implications of
the growing popularity of the provisions within
the Localism Act 2011 which concern the listing of
assets of community value (ACV).
5.
In August 2013 the stadia of Anfield and Old
Trafford were listed as ACV by Liverpool City
Council and Trafford Borough Council respectively
in the lists which each of these authorities is
required to maintain under section 87(1) of the
Localism Act 2011. The stadia used by Oxford
United, Leicester City, Barnet FC and Birmingham
City are also known to have been
listed.
6.
What is an ACV? Sports stadia, village shops,
pubs, community and children’s centres, allotments
and libraries are all likely candidates for
listing. The matter is complicated as the
definition contained in the LA is very wide and
the Regulations do not provide any sensible
guidance of the criteria for deciding what a
relevant asset is for these purposes. For
instance, might the value of the relevant land
entitle a local authority to refuse a nomination
on the ground that it was beyond the realistic
reach of a community
organisation?
7.
The LA gives local groups a right to nominate a
building or other land as an ACV. It may be listed
if the primary use of the asset furthers (or has
recently furthered) their community’s social
well-being or social interests. The term
‘social
interests’ is stated to
include cultural interests, recreational interests
and sporting interests. The LA concentrates on an
asset’s primary use rather than any incidental or
ancillary use.
8.
What it all means is that whenever a listed asset
is to be sold, local community groups have an
opportunity to make a bid to buy it on the open
market. At the moment, we are dealing with an
asset’s open market value but the growing
popularity of the legislation may in the future
tempt Parliament to make larger assets more
affordable to local interest groups by tinkering
with the legislation by, for instance, limiting
market value to existing use
value.
9.
Unless an exemption applies, the landowner will
only be able to dispose of the asset after a
specified period has elapsed. The first window is
a 6 week period from the date when the owner
notifies the local authority that he wishes to
sell. This allows community interest groups to
make a request to be treated as a potential bidder
for the asset. If none do so then the owner is
free to sell at the end of the 6 week period.
However, if a community interest group does make a
request during the 6 week interim period then a
full 6 month moratorium will operate in which
event the owner will be unable to enter into a
binding commitment to sell the asset unless he
chooses to sell to a community interest group
during the same period. Once the applicable
moratorium periods have ended then the owner may
sell to whoever he wants and at any price and no
further moratorium will apply for the remainder of
the protected period of 18 months running from the
date when the owner first notified the local
authority of his wish to sell.
10.
The scheme recognises that it may have some
financial impact on owners and provides a
compensation scheme for private property owners
for loss incurred through the asset being listed
and will include a claim arising from a period of
delay in entering into a binding agreement to sell
which is wholly caused by one or other of the
moratorium periods. Compensation payments in
excess of £20,000 in any one year will be met by
the Government although local authorities stand to
recover some additional funding from the
Government for the burdens which the new
legislation imposes on them. It follows from this
that local authorities face serious financial
risks in the case of high value assets which ought
never to have been listed.
11.
In the result, whenever listing is on the cards
legal advice should normally be
obtained.
WILLIAM
WEBSTER
FELICITY
THOMAS
12
COLLEGE PLACE
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