Listing assets of community value

The High Court has ruled that a council’s refusal to list local sports field as an asset of community value was unlawful. Jenny Wigley QC analyses the judgment.

Supporters of TV Harrison CIC, a community interest company, are celebrating an important victory after a High Court Judge ruled that Leeds City Council’s refusal to list a longstanding sports field as an asset of community value (‘ACV’) was unlawful.

The judgment in TV Harrison CIC, R (On the Application Of) v Leeds School Sports Association [2022] EWHC 130 quashes Leeds City Council’s decision not to include the land in its list of ACVs. It also provides important clarity as to the correct interpretation of the law regarding the listing of ACVs.

TV Harrison Sports Ground is a historic local facility that had been restored by the local community and used for recreational activities, informal football matches, fundraising events and other community sports and social activities.

The claimant’s predecessor had applied to add the sports ground to the council’s list of ACVs. The council first rejected the application in June 2020, but this decision was ultimately quashed by the High Court with the consent of the council in November 2020. The application was then redetermined and refused again by the council on the basis that “it is not realistic to think that there can continue to be non-ancillary use of the site which will further (where or not in the same way) the social well-being or social interests of the local community” (which is the statutory test in section 88(1)(b) of the Localism Act 2011). The council gave as the reason for this conclusion the fact that the land had been allocated for housing in its local plan and that the council had “firm and settled plans” to develop the land for housing.

Mr Justice Lane held that in forming its opinion under section 88(1)(b) in this way, the council had erred in law. He rejected the council’s argument which relied on the significance of the words ‘in the opinion of the local authority’ in the statutory test.

In particular, the judge found that the council had:

• acted contrary to the purpose of the legislation by failing to have regard to material considerations, in particular countervailing factors (such as NPPF policy requirements and the, as yet unmet, requirement on the council to appropriate its land to housing purposes) which might mean that the land could not in the end be developed for housing;
• taken into account immaterial considerations by taking into account the factors which pointed towards the possibility of the site being redeveloped without at the same time taking into account countervailing factors;
• given the appearance of bias through the failures identified in its decision making and against the background of the council having entered into an obligation to use reasonable endeavours to have the ACV nomination dismissed as part of its own development plans;
• failed to understand or give effect to the correct legal test under section 88(1)(b).

The judgment contains a helpful discussion of a number of First-tier Tribunal cases involving ACV decisions. While the Judge noted that such decisions had no authority as precedents, it was nevertheless open to him to conclude that the interpretation of the statute put forward in such cases was correct. He set out the following helpful interpretation of section 88(1)(b):

“The legislation does not require there to be only one “realistic” future use of a building or other land. Several possibilities may each be realistic. The legislation does not require a potential future use to be more likely than not to come into being, in order for it to be realistic. The fact that the most likely of a number of scenarios is one which would not satisfy the statutory criteria (eg. a change of use from pub to residential) does not mean that any other potential future use is, without more, rendered unrealistic. It is only if the non-compliant scenario is so likely to occur as to render any compliant scenario unrealistic, that the non-compliant scenario will be determinative of the nomination.”

This sets a useful precedent for future ACV decisions, which previous First-tier Tribunal decisions could not. 

Jenny Wigley QC is a barrister at Landmark Chambers. She represented the successful claimant, instructed by Ricky Gama of Leigh Day.