A council’s decision to list the site of a bowls club as an asset of community value has been upheld by the First-Tier Tribunal.
The Gullivers Bowls Club has existed as a private members’ club on the site in Bexhill-on-Sea for about 50 years.
Until about ten years ago there were two outdoor greens available to play but the decision was taken to cease to maintain one of them. This area – which comprises 37% of the site – remains as mown grass but is not a bowling green.
Although the club’s buildings are old and dilapidated, the social side of Gullivers was considered to be lively by a planning inspector who visited the site 15 months ago. The club has £26,000 in the bank and small profits and losses are recorded each year.
The Cantaloupe Community Association nominated the land for inclusion on Rother District Council’s list of community assets.
The council subsequently agreed to list the site. Gullivers appealed, arguing that the local authority was wrong to do so because 37% of the site had no current or recent use made of it.
This, its QC claimed, went way beyond any ‘de miminis’ absence of use that might be overlooked.
In the FTT Judge Warren ruled that the council was correct to take the nominated land as a whole and to conclude that, as a whole, its current use furthered the social wellbeing or social interests of the local community.
He said: “It is a feature of some sports clubs to have, at any one time, some facilities that are redundant. In this case it seems to me, having looked at the aerial photographs, that it would be artificial to separate out the old green for the purpose of listing under the Act.”
The judge said this conclusion made it unnecessary for him to explore an issue discussed at the hearing as to whether a local authority, or the Tribunal on appeal, could decide to list part of a nominated site.
“Any such judgment is likely to be very fact-specific,” Judge Warren said. “I would comment only that, for myself, I can find nothing in the Act to suggest that Parliament intends to forbid local authorities to take what might appear in some cases to be the fair and sensible course.”
Gullivers’ QC sought to claim that the existing bowls club had no realistic prospect of continuing, highlighting a report from GVA that concluded it was not commercially viable.
But the judge also rejected this submission. He said: “Gullivers may be limping along financially but it still keeps going and membership is relatively stable. Of course it is possible that something could go drastically wrong with the buildings and Gullivers would not have the capital to repair them; but that has not happened yet and, in an institution that has lasted for 50 years, it would be wrong to rule out community spirit and philanthropy as resources which might then be drawn on.
“In any event, should the site cease to be land of community value, Rother would have power to remove it from the list.”
Judge Warren highlighted another additional factor. “Some years ago there was an application for planning permission in respect of the site for housing,” he said. “This was refused. More recently an application was put in which proposed retaining one outdoor green and building a new clubhouse and indoor green along with a residential development. This was turned down only on grounds of design. A new application, with a different design, is likely and would have good prospects.”
Gullivers’ QC submitted that the judge could not take this into account as a possible way in which a use which would further the social wellbeing or social interests of the local community could continue. This, the QC said, was because the use would not apply to the whole of the site.
Judge Warren said he could not accept this submission. “In considering the future condition, especially perhaps in recent use cases, I do not accept that Parliament intended that no consideration at all could be given to imaginative partnership schemes, perhaps using section 106 money, which conserve substantial parts of a site for community use.”
The FTT judge meanwhile rejected a submission by the council’s barrister, Hugh Flanagan of Cornerstone Barristers, that, in hearing appeals under the Localism Act, he had a more limited jurisdiction than that afforded by a rehearing.
Flanagan argued that the statutory context emphasised the primacy of the local authority in the making of the decision and, because the right of appeal was non-specific as to whether it was a review or a rehearing, a construction which afforded weight to the council’s decision was to be preferred.
But Judge Warren said: “In my judgment appeals in this jurisdiction are no different from the hundreds of thousands of appeals before the First-tier Tribunal every year and I have therefore conducted a complete rehearing.”