Consider the following:
- According to a report in the Guardian (10 May 2015) all 19 pubs in Otley, a small town in West Yorkshire, were listed as Assets of Community Value (ACVs) following a “blanket nomination”.
- On 25 June 2015 the Evening Standard ran a story about how Southwark Council had stepped in to list two historic pubs as ACVs. Both pubs had been closed because the same Council had revoked their premises licences: so much for the social well being and interest of the local community!
- On 14 July 2015 CAMRA announced its intention to have 3,000 pubs “protected” by listing as ACVs.
Each of these cases appears to fly in the face of common sense and against the notion of community nomination for the social wellbeing and interest of the local community. This begs the question: could someone nominate and get an entire tranche of pubs listed, in far flung locations, in an offensive / defensive move against the owners? The initial answer lies in what happened in Parliamentary debates.
In the twelfth(!) sitting of the Public Bill Committee, on 10 February 2011, Andrew Stunnell, the then Parliamentary Under-Secretary of State for Communities and Local Government, said in a discussion as to whether private land should be capable of listing as an asset of community value:
“We are introducing a new provision that is long overdue in the eyes of many communities around the country. It is, therefore, important to ensure that the provision is proportionate. It does not state that someone who wants to be a bit awkward can claim that something has community value so that it gets on the list; there is a process. That process is designed to ensure that we do not have vexatious, silly, or inappropriate nominations, included on the register.”
The legislation was passed, with:
- No mention of motive for nominating pubs
- The requirement that the nomination be a “community nomination”
- A very low threshold for Councils to get over to determine that land is of community value.
The problem lies in what constitutes a community nomination.
In St Gabriel Properties Limited v London Borough of Lewisham & Another (January 2015) Judge Warren said he thought that CAMRA South East London Branch was able to make a community nomination because: “A proper application of the regulations, in my judgement, treats organisations such as this in a hybrid way”
This enables branches of an organisation such as CAMRA with national reach, because of the nature of its membership, to organise and make effective community nominations where they have a sufficient local connection.
What view do councils take of this?
The decision in St Gabriel Properties was not challenged and in a number of respects it ought to have been. We have been involved in a number of recent ACV cases and have access to unpublished reports and decisions of councils which throw some light on the issues not dealt with in St Gabriel Properties and these include:
- The nature of the nomination
- Whether it is a community nomination
- The identity and status of the “body” making the nomination
- How a nomination is made
Each case has to be decided on its particular facts and a better reading of St Gabriel Properties is that it only really decides that CAMRA could be a national body and, subject to a number of conditions, a local one as well. Clearly, the critical factor in dealing with strategic nominations can be careful deployment of the correct legal arguments to help shape the council’s view of whether a true community nomination has been made at all. Our recent experience can be brought to bear on helping prevent a large-scale tactical nomination scenario arising – such as that contemplated at the start of this article.
At the same time, one of the more surprising aspects of cases so far is how willing councils appear to be to list properties considering there is no right to appeal a refusal to list – with the knock-on effect of a council having potentially (in certain circumstances) to face the cost of paying out compensation. Again, the presentation of subtle representations in objection to a nomination can be persuasive.
There will undoubtedly be more to report as CAMRA’s campaign gathers momentum.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.