Banner Homes Ltd v St Albans City And District Council & Anor

For the purposes of section 88 of the Localism Act 2011, “actual use” is not confined to lawful use. Trespassory or technically unlawful use may qualify if it furthers the social wellbeing or social interests of the local community and the other statutory conditions are met.

The in bonam partem principle does not create an inflexible rule excluding every unlawful use. Its application depends on the statutory context and the nexus between the conduct and the provision. The statutory criteria themselves exclude many unlawful activities. The exceptional planning deception considered in Welwyn Hatfield did not justify a different construction.

The Council listed Bedmond Lane Field as an asset of community value under section 88 of the Localism Act 2011, following a nomination by the Verulam Residents’ Association. The Field had been used by local residents for recreational activities, although use beyond public footpaths was trespassory. Banner Homes later fenced off the Field.

The Council’s decision was upheld by the First-tier Tribunal, whose decision is reported at [2015] UKFTT CR2014/0018 (GRC), and by the Upper Tribunal at [2016] UKUT 0232 (AAC). The only live issue on the second appeal was whether unlawful use could constitute “actual use” for section 88 purposes.

1. The appeal was dismissed. The Upper Tribunal had not erred in construing section 88 of the Localism Act 2011. The Council was entitled to list the Field as an asset of community value.
2. Lady Justice Sharp, giving the leading judgment, held that “actual use” was unambiguous and plainly capable of covering the recreational use made of the Field before it was fenced. The court would not insert the word “lawful” into section 88(1)(a) or section 88(2)(a). Actual use alone was insufficient: the authority also had to be satisfied that the use furthered the social wellbeing or social interests of the local community and that the relevant future or continued use was realistic.
3. The in bonam partem principle was a contextual aid to construction, not a binary rule. Whether conduct should disentitle a person from relying on apparently unqualified statutory language depended on the statutory context and the nexus between the conduct and the provision. Welwyn Hatfield was concerned with exceptional, deliberate deception which was integral to the planning process and directly intended to secure the statutory benefit. It did not support excluding every use containing any element of unlawfulness.
4. The community-value scheme had its own “self-policing” mechanism. Uses such as violent or disorderly premises involving illegal activity would ordinarily fail the statutory social-wellbeing requirement. The question was for the local authority, subject to the statutory review and appeal structure and, ultimately, judicial review on conventional public-law grounds.
5. Lord Justice Davis and Sir Rupert Jackson agreed with Lady Justice Sharp. The separate future-use challenge had not been renewed. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Dismissed Banner Homes’ second appeal and upheld the listing decision.
• Upper Tribunal: At [2016] UKUT 0232 (AAC), upheld the First-tier Tribunal’s decision and rejected the statutory-construction challenge.
• First-tier Tribunal: At [2015] UKFTT CR2014/0018 (GRC), dismissed Banner Homes’ appeal against the Council’s listing decision.