Residents Association wins 'community asset' test case

In a ground-breaking decision of which all property professionals should take note, a tribunal has ruled that use of land by the public does not have to be lawful in order to justify listing it as an asset of community value under the Localism Act 2011.

The case concerned a 12-acre field which had for many years been used by local residents for dog walking, photographing flora and fauna and other recreational activities. It was, however, owned by a property company which viewed it as having potential for residential development.

Following an application by a residents association, the local authority agreed to list the field as an asset of community value. That meant that that site was very unlikely to receive planning consent and that the association would have the opportunity to hold up any sale so that it could itself put in a bid for the field. The listing was subsequently upheld by the First-tier Tribunal.

In challenging the latter decision, the company argued that it had never authorised public access to the field. As it was entitled to do, it had put up anti-trespassing notices and fenced around a footpath crossing the land. It was submitted that residents’ unlawful use of the field should not have led to it being listed.

In rejecting the company’s appeal, however, the Upper Tribunal (UT) noted that the field had a long history of peaceable, socially beneficial – if formally unauthorised – use by residents. If Parliament had intended the listing regime only to apply to lawful use of land by the public, it would have said so. The UT also found that it was realistic that the public recreational use of the field might resume at some point in the next five years.