Assets of Community Value – creating protection under the Localism Act 2011
Adam Riley, 25th November, 2019
With the passing into law of the Localism Act 2011 (“the 2011 Act”) a new classification of property was created – the asset of community value (“ACV”).
The 2011 Act had at its heart the desire to empower communities and enable them to nominate a property or properties (which may be buildings or land) which they may wish to ‘protect’ due to its/their importance to a local community.
The 2011 Act has been supported by regulations to establish the frameworks within which the 2011 Act will operate and its impact has been further increased through amendments being made to the law which establishes development rights in respect of properties (removing or greatly reducing the ability of an owner to deal with their property without planning permission).
In essence, the 2011 Act has meant that:
A community, through a suitable group (the 2011 Act notes the varieties of group which qualify for this status), may nominate a property which they feel furthers the social wellbeing or social interests of a local community.
A local authority must assess whether the nominated land meets the criteria of being an ACV. If so, they must list the nominated property.
Once the local authority have made their determination, they must either: include the property on their list of assets of community value (which the authority is required under the 2011 Act to maintain); or add the property to their list of unsuccessful nominations (which they are also required to maintain under the 2011 Act).
If a property is listed as an ACV the owner has a right, under the 2011 Act, to appeal this decision. Owners beware however as strict timescales apply.
Once a property is listed as an ACV a number of legal rights in respect of that property are either removed or are amended.
Since the 2011 Act was passed into law and took effect there have been a myriad of different properties which have been the subject of nominations including (by way of example) school playing fields; art centres; football stadia; and most frequently, public houses.
In addition to the obvious effects the 2011 Act has had on listed property, there have been more recent changes to the planning regulations which effect public houses (and any other drinking establishment trading with use class A4). Following a period of lobbying from industry groups the government amended the permitted development rights regime so as to require all drinking establishments, whether they are nominated for listing, listed, or have been the subject of neither a nomination or listing, to obtain planning permission before they are demolished or allowed to change their use. The only exception to this is that a public house with an expanded food offering may become a property with a mixed use class (or A4 and A3).
This is a niche area of law, based upon law and regulation, with a heavy influence taken from former cases. At Gosschalks we have a dedicated team of talented commercial property solicitors and commercial litigators who specialise in licensed premises (the most frequently encountered subject of ACV nominations).
We have been active in this area since its very beginnings and over the past 6 years we have acted for a broad range of clients including major Pub Co’s, individual property owners, and potential purchasers in various roles from resisting a nomination, to working with owners of listed properties and even making claims for the loss in value which the listing of a property may have caused.
At Gosschalks we can provide specialist advice to ensure that your asset (whatever that asset may be) is protected, whether that be through resisting a nomination; appealing a decision to list; or dealing with a property which is already listed.
Case study (technical challenge):
Gosschalks assisted a major national public house operator in resisting a nomination, made by a leading national group, in respect of a valuable London site.
The nomination was made and accepted by the London Authority and notice was served upon the client.
With the statutory timescale in operation, Gosschalks obtained copies of the nomination and all supporting documentation and were able to successfully demonstrate that the nomination was invalid on technical grounds – thus defeating the nomination and securing preferable ownership rights for our client.
The nomination was refused and the property added to the authority’s list of unsuccessful nominations.
Case study (review reversal):
Acting for another owner of a significant number of public houses, Gosschalks were engaged to challenge the listing of a site in the North East.
At the time of listing, the client had not been fully notified of the nomination and no copy documentation was provided to them.
Gosschalks advised on the strength of their client’s position and triggered the statutory review of the decision to list.
The team then prepared detailed representations based upon the property; trading history; local amenities; as well as raising issues with a number of technical aspects of the nomination.
Upon an independent review the decision to list was reversed by the reviewer and the client had the property removed from the list of ACVs and added to the list of unsuccessful nominations.