The desired outcome any brewer, pub company or developer faced with an ACV nomination wants is to receive a communication stating:
“Your property has been added to the unsuccessful list of nominations.”
Operators and property owners have been faced with a flood of ACV nominations – undoubtedly driven by CAMRA’s campaign launched in July to persuade members to nominate their local pub as an ACV.
Whilst a nomination of a property as an asset of community value may seem an insurmountable block to future business plans (and this may, of course, include maintaining a property as an operating pub) our recent experiences of acting for 13 different businesses demonstrates that there are ways to successfully oppose such nominations. For one family brewer this has amounted to a 75% success rate in objecting to nominations so far.
How can this be achieved?
The recent pattern of Council behaviour shows, to us, that they do not like CAMRA’s nominations, which are often poorly explained, relate to pubs which are under no threat whatsoever, and therefore have a strong sense of ulterior motive about them.
To illustrate, the recent decisions revolve around:
- A council not being certain that a nomination made by CAMRA could be treated in a hybrid way in accordance with the decision in St Gabriel Properties Limited –v- London Borough of Lewisham and South East London Branch of CAMRA, Campaign for Real Ale Limited. This was as a result of the legal analysis of that case put to the council.
- A council considering that the current use of the property does not further the social well being and social interest of the local community. This was a slightly surprising decision, given that the venue’s website boasted of upcoming quiz nights and live music events for the community. But what this example shows is that every nomination is a two horse race.
- There being insufficient evidence presented, on balance, of any community value – as those reasons put forward as to why the property is of community value failed the test given the objections received. Making appropriate representations as to what uses are not of community value can help a council justify a refusal to list.
As well as the decisions already made, we have a number of nominations which are awaiting decisions and some reviews against CAMRA branches which await an outcome. In the majority of these we anticipate legally correct (and therefore positive) outcomes.
With CAMRA’s now notorious campaign to list 3,000 pubs there are undoubtedly instances where CAMRA might not be the nominator, but might well be acting as the puppet master, which is becoming clear as we look at increasing numbers of nominations, reviews and appeals.
Proof that effective opposition can work
Overall, our success rate in opposing nominations is virtually 60%. We have won more nominations and reviews than we have lost, and this trend is growing with a 71% success rate since September at both nomination and review stages, with the last 5 decisions being a positive result for pub owners.
Notably, CAMRA have only won once in any of the nominations we have challenged – that decision is currently being reviewed, and if lost at review we will happily take it all the way to the Upper Tribunal, to try and establish an important precedent which could otherwise have lasting detrimental effects on the pub sector.
Addressing the issue of abusive or tactical nominations when it comes to assets of community value. The Localism Act 2011, which introduced the concept of ACVs and the nature of nominations, gave rise to unintended consequences which are highlighted in this commentary on how councils are reacting to potential listings.
An introduction to ACVs and the steps to take when faced with one of your assets being nominated.