BHL v St Albans City and District Council & Anor

Section 88 of the Localism Act 2011 does not confine an “actual use” of land to a lawful use. Parliament did not insert that qualification, and the statutory requirement that the use further the social wellbeing or social interests of the local community provides the relevant public-interest safeguard.

The public-policy principle that a person should not profit from wrongdoing must be applied in context. It does not require a general exclusion of technically unauthorised community use from the assets of community value regime.

For section 88(2)(b), “not fanciful” and “realistic” were equivalent on the facts. The future-use assessment is for the listing authority or tribunal; a landowner’s stated intention to exclude the public is not a veto.

Banner Homes Ltd appealed against the First-tier Tribunal’s dismissal of its challenge to St Albans City and District Council’s decision to list Bedmond Lane Field as an asset of community value. The field had been used for about 40 years by local residents for informal recreation away from two public footpaths. In September 2014 the owner fenced the field and excluded such access.

The First-tier Tribunal, in decision CR/2014/0018, upheld the listing under section 88(2) of the Localism Act 2011. The appeal raised two issues: whether “actual use” in section 88(2)(a) must be lawful, and whether it was realistic that a qualifying non-ancillary use could occur within five years under section 88(2)(b).

1. Appeal dismissed. The Upper Tribunal confirmed the First-tier Tribunal’s decision to uphold the listing of the land as an asset of community value.

2. Section 88 of the Localism Act 2011 does not contain an implied requirement that an “actual” use must be lawful. The language of sections 88(1)(a) and 88(2)(a) is unambiguous. Parliament could readily have inserted the word “lawful”, but did not do so. A use is therefore not disqualified merely because it was unauthorised, unless another legal rule requires that result.

3. The public-policy principle considered in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government and another [2011] UKSC 15 had to be applied in its statutory context. The assets of community value regime contains its own safeguard: the qualifying use must further the social wellbeing or social interests of the local community. Listing creates public benefit rather than the private advantage sought through the deliberate fraud in Welwyn Hatfield. It would be inconsistent with the statutory scheme for that public benefit to be defeated by unidentified private trespassers.

4. The First-tier Tribunal had erred in suggesting that the construction of section 88 could depend on the facts of an individual case. Construction is fixed; application may be fact-sensitive. That error did not affect its decision that the historic use of the field could qualify.

5. For section 88(2)(b), the tribunal should preferably use the statutory word “realistic”. However, there was no material difference in this context between a future use that was “not fanciful” and one that was realistic. The future-use judgment was open to the First-tier Tribunal on the history of peaceful use, the planning position and the possibility of restored access or a licence arrangement. The owner’s current intention to maintain fencing did not determine the issue.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed and the First-tier Tribunal’s decision confirmed.
• First-tier Tribunal (General Regulatory Chamber): on 16 April 2015, in CR/2014/0018, dismissed the owner’s appeal and upheld the local authority’s listing decision.
• Local authority review: St Albans City and District Council maintained the listing on 26 September 2014.