Adrian Russell (for the Rose and Crown Community Pub Group) v Bracknell Forest Borough Council & Anor

An unincorporated community body need not have unanimity about every motive, policy, purpose or proposed activity. Its members must share at least one common interest, purpose or activity, unless its rules impose a wider requirement. A group may qualify even though some members have additional or different aims.

The statutory test for land of community value concerns the present and prospective community use of the land. It is separate from the question whether the nominating group will purchase the land during the statutory moratorium. Evidence that not every member wishes to purchase the asset therefore does not prevent the test being satisfied.

The Council listed the Rose and Crown Pub as an asset of community value under the Localism Act 2011 and the Assets of Community Value (England) Regulations 2012. On the owner’s appeal, the First-tier Tribunal allowed the appeal and removed the Pub from the list.

The First-tier Tribunal held that the nominating group was not an unincorporated body and that it was not realistic to think that qualifying community use would continue. Permission to appeal was granted on whether the Tribunal had required unanimity about the group’s purposes and whether it had wrongly treated members’ differing views about purchasing the Pub as defeating the statutory test.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for material errors of law under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal remade the decision under section 12(2)(b)(ii), dismissed the owner’s appeal against listing and confirmed the Council’s decision.
2. For regulation 5(1)(c) of the Assets of Community Value (England) Regulations 2012, an unincorporated body is a contractual association of individuals with a mutual bond and at least one common interest, activity or purpose. Rules may be express or implied and may be written or oral. A body need not hold or use funds merely to qualify.
3. The First-tier Tribunal erred by requiring unanimity over every aspect of the group’s motive, policy and purpose. Members need not agree on how a common purpose is achieved unless the group’s rules require it. Different or additional purposes held by some members do not prevent the existence of a shared purpose.
4. Where a body collects funds or makes a surplus, it must comply with regulations 4 and 5. Here, there was no evidence that the Group held or would make a surplus. The evidence of possible future financial contributions towards purchase did not establish a surplus requiring distribution to members.
5. The test in section 88(1) of the Localism Act 2011 asks whether qualifying current non-ancillary use furthers the community’s social wellbeing or social interests and whether it is realistic to think that such use can continue. That inquiry is independent of whether the community group will purchase the asset under the section 95 moratorium.
6. The Pub hosted community activities and there was no evidence that its use would change. It was therefore realistic to think that qualifying non-ancillary use would continue, satisfying section 88(1)(b). The Council had acted rationally in listing the Pub.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal’s decision dated 28 January 2020 was set aside and remade. The owner’s appeal against the Council’s listing decision was dismissed.
• First-tier Tribunal (General Regulatory Chamber): on 28 January 2020, allowed the owner’s appeal against the Council’s review decision and removed the Pub from the list of assets of community value.
• Bracknell Forest Borough Council: on 18 April 2019, upheld its earlier decision to list the Pub as an asset of community value.