Dragonfly Architectural Services Limited v Brighton & Hove City Council

For listing land as an asset of community value under section 88(2)(b) of the Localism Act 2011, it need not be more likely than not that a qualifying future use will occur. Several realistic possibilities may coexist. Commercial viability and a detailed business plan are not required, although there must be some indication that the proposed community use is a sensible and practical prospect rather than fanciful. A future use may therefore be realistic even where its prospects are slim or unlikely. On appeal, the Upper Tribunal must not reweigh evidence or substitute its own evaluation for that of the specialist first-instance tribunal. It may interfere only where there is an error of law or a conclusion that no reasonable tribunal could reach.

Brighton & Hove City Council listed the Montreal Arms, a former public house in Brighton, as an asset of community value. Dragonfly Architectural Services Limited, its owner, challenged the listing. The First-tier Tribunal dismissed the appeal, finding that the property had recently furthered local social wellbeing and that it was realistic to think that qualifying community use could occur within five years, despite the slim prospects and poor commercial position.

Permission to appeal was granted on whether the First-tier Tribunal had misapplied the phrase “realistic to think” in section 88(2)(b) of the Localism Act 2011 and had reached an internally inconsistent conclusion. The central issue was whether a use could be realistic when it was unlikely or had only slim prospects.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law.
2. Section 88(2)(b) of the Localism Act 2011 does not require the tribunal to identify the most likely future use, or to find that a qualifying use is more likely than not. The statutory language permits several realistic outcomes to coexist.
3. The test is a low one. Long-term or commercial viability is unnecessary, and a detailed business case is not required. However, there must be at least some indication that the proposed use is realistic. “Realistic” means a sensible and practical idea of what can be achieved or expected, rather than a merely fanciful possibility.
4. The First-tier Tribunal was entitled to take account of the property’s history, planning position, possible alternative operators, community ownership, building condition and the possibility of a loss-making or independent pub. It was also entitled to conclude that the evidence was finely balanced, that qualifying use was unlikely, and nevertheless that it remained realistic to think that such use could occur.
5. The Upper Tribunal rejected the argument that this reasoning was contradictory. The First-tier Tribunal had carried out the required nuanced and evidence-based assessment. The appeal grounds substantially challenged the weight given to the evidence and sought to relitigate factual merits.
6. On appellate review, the Upper Tribunal must respect the specialist tribunal’s role as primary fact-finder. It must not conduct the balancing exercise afresh. Intervention is justified only for an identifiable legal or logical flaw, or where the conclusion was rationally insupportable. The First-tier Tribunal also gave adequate reasons explaining why the appeal failed.

The appeal was dismissed under section 11 of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision involved no error of law.
• First-tier Tribunal (General Regulatory Chamber): appeal against listing of the Montreal Arms as an asset of community value dismissed on 6 November 2023, following the decision dated 26 July 2023.
• Upper Tribunal: permission to appeal granted on two grounds on 12 June 2024; other grounds seeking to relitigate factual issues were refused permission.