East Hertfordshire District Council has successfully defended its decision to list a currently empty pub as an asset of community value.
The appeal to the First Tier Tribunal (FTT) was brought by the owners of The Cock pub in Stocking Pelham.
The pub had burned down in 2008, shortly after a £150,000 refurbishment.
In 2010 a planning application was made to replace the inn with two houses and a new public house. This was contrary to planning policy, however planning permission was granted with the two houses being an enabling development to secure the re-provision of the public house.
A s.106 agreement contained covenants preventing occupation of the second house until after the public house was in a state where it was capable of being granted a premises licence and requiring the public house to be in that condition within 12 months of the occupation of the first house.
In 2015 permission was granted for the letting of rooms within the public house and a premises licence was issued in July 2015, it is currently suspended and the public house remains a shell.
The owners bought the site in 2016. There have been further planning applications and appeals against refusal of planning permission or non-determination, the first for conversion of a vacant public house into a five bedroomed house (refused on appeal June 2018) and the second, for conversion to four residential dwellings (refused on appeal on 16 November 2018). Both Inspectors considered continued use as a public house could be viable.
Stocking Pelham Paris Council, who have said they are willing to purchase and run the pub, nominated the Cock Inn to be listed as an ACV in January 2018. East Herts approved the nomination the following April.
Before the FTT, the owners argued that East Herts had not properly applied the test in s.88(2)(b) of the 2011 Act and had not give due weight to evidence that the pub was not viable.
In his ruling, judge Christopher Hughes said: “From the information before me there is strong evidence of community involvement and commitment to re-opening the Cock Inn. I am satisfied that there are two realistic bids from individuals as well as a properly formulated business case from the Parish Council, backed by £142,000 cash and the prospect of a substantial loan.
“Given the recent planning history and the emphatic decision of the most recent Planning Inspector who examined the matter three months ago there is no realistic prospect of another lawful use within the next five years."
The judge continued: "The attitude of the Appellant is not determinative, otherwise, as a former President of this Chamber observed, the ACV scheme would be voluntary. The fact of negotiations between the Appellant and the Parish Council which formed the basis for the Appellant’s application for an adjournment suggests that the Appellant is prepared to contemplate some community use.”
The judge added: “The evidence before me is sufficient to lead me to conclude that future use as a public house is a realistic possibility. I am therefore satisfied that this appeal must fail.”
Anthony Gill of Kings Chambers appeared for East Herts.
The set said: “The case confirms the very high bar appellants must pass in demonstrating that a future community use is 'unrealistic' under the Localism Act 2011 and follows previous decisions including Worthmore Properties v South Oxon (2017)."
Gill also acted in the Worthmore Properties case.