ACV

Navigating the ACVs minefield

By Steve Culverhouse

- Last updated on GMT

Steve Culverhouse advises on the asset of community value process

Related tags: Local authority, Local government, Sweden

Former licensee Steve Culverhouse who runs www.change-of-use.com talks the PMA through everything publicans need to know if they're unhappy with a listing. 

1) Firstly, understand what the ACV means and how it works:

The Localism Act 2011 is intended to protect the pub from development or permanent closure resulting in the loss of the community facility. Groups of 21 people who are registered as living within the local area authority’s area or the Parish council can submit the nomination.

2) How the Definition is applied:

 ​If in the opinion of the authority the nomination meets the definition of the Localism Act, then the building is placed on the list of assets of community value. The definition requires the following criteria to be met:

Section 1:

The land is of community value if in the opinion of the local authority a use of the building or other land that is not an ancillary use furthers the   social wellbeing or social interests of the local community, and

(b) it is realistic to think that there can continue to be use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community

If Section (1) does not apply then the authority must apply Section (2)

 Section 2:

(a) there is a time in the recent past when an actual use of the building or other land that was furthered the social wellbeing or interests of the local community, and it is realistic to think that in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.

 3) How do I know if my pub has been nominated?

 ​You may not know that a community group or the parish council is planning on nominating your pub but when the nomination is submitted to the authority you should receive written notification from the local authority. This is a requirement of the Act but I have seen cases where the owner was not informed. The nomination presents the first opportunity for an objection to be lodged. The local authority has up to 8 weeks from the date upon which the nomination was submitted to arrive at its decision whether or not to list the building.

 

4) Who decides if my pub qualifies for listing?

 ​Most local authorities have a group of officers from across the spectrum who meet to discuss nominations. The group’s chair-person will have sufficient knowledge of the Act to enable them to guide members and to evaluate the details on the nomination form and to take into consideration any objections from the owner if they have been received. Often, however, owners are unaware of being able to submit such objection. There are some grey areas in the legislation and it might be that two local authorities react to the same circumstances in a different way.

 5) What does it mean for me and my pub?

 ​When your pub is listed, the act requires the listing to be recorded as a local land charge. The land charge will then be registered against the property for five years. You will not be able to offer your property for sale on a confidential basis any longer. If someone knocks on your door and wants to the pub, they must wait six months to give the community time to get together a bid. If you are selling the pub as a going concern, the six month period is not triggered.

 6) I’m not happy. Can the decision be revoked?

 ​Once listed the owner and his tenant (if that is the case) should be notified of the fact in writing and advised that they have 8 weeks during which they can request a review of the decision to list the building as an ACV. This process is not to be confused with an appeal which could follow later. The request for a review carries no monetary cost except if the owner chooses to have professional representation. In my experience, it is crucial to provide the review officer with a robust account of why the property should not have been listed. If an owner is unhappy, the review is the perfect platform to challenge the decision.

 7) What happens if the Review Officer upholds the listing?

 ​The review decision must be reached within 8 weeks of it being received. The officer will have considered all the evidence with a letter relaying the decision to the owner or his representative and the community group. If the decision to list is upheld the owner has the right to appeal to the First Tier Tribunal. This final avenue (other than judicial review) should only be pursued if the local authority has in your opinion failed to apply the definition of the Act correctly and there is clear evidence that the listing should be revoked. In my experience the tribunal judge is reluctant to overrule the review officer unless there is a clear case of negligence.

  8)  Can I be compensated?

 ​A victory at Review or Tribunal where the listing is revoked and removed from the register offers an opportunity to claim compensation from the LA. Be warned-any loss is always difficult to justify.

 9) The way forward

 More new legislation is being proposed including a longer moratorium and a reserve price. A group of unhappy owners has formed Owners United and would like more support from the sector.

Related topics: Property law

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13 comments

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ACV pubs

Posted by Dale Ingram,

I've advised professionally on the making of about 30 ACV nominations including representations at subsequent review and on appeal. The author is incorrect in his statement about owners or tenants objecting to ACV listing. There is no right of consultation (where views are sought) during the nomination period, only of notice. One owner complained of not being notified but the judge in the Tribunal decided that since no consultation was intended by the law that no detriment had been caused by the failure of the local authority to notify. No time limits have been applied in the legislation or regulations or any other guidance. The notice of application could be issued the same day the nomination is decided if a local authority were so minded. While they might have 8 weeks to decide, this is a maximum not a specified period. The decision could be expedited rather in the manner of a spot-listing or immediate Article 4 Direction. The first provision for objection is at review and then at tribunal. So far only a handful of cases have been successful at review and only two (to my knowledge) at Tribunal. The outcome of two recent cases in London where the owner queried the content of a nominating party's Constitution and another tried to argue that the pub was in fact a hotel- even though the planning application is clearly for A4 pub (not C1 hotel) to residential use- are going to be quite interesting. If the constitution challenge succeeds it has ramifications for a number of ACV listings which have used it. We can be sure the lawyers will scent blood in the water and start to gather to mount appeals. In the mean time, actually the protection offered by ACV listing is relatively slight, but there are signs that planning authorities are giving more weight to it in considering applications for non-pub changes of use. And the recent change to the General Permitted Development Order which means no pub can be converted to another use without checking with the local authority first, is a major forward stride for pub protection. The admission by CAMRA that its target for ACV listing pubs is 3000 somewhat undermines their demand that all pubs (current count about 36000) be protected from permitted development change of use, not merely those which are ACV listed. National policy provides protection for those which are 'valued' and ACV registration provides the necessary evidence of this. Not every pub is valued and many of those 36000 are high street bars and other drinking places which have no community function. We should not be piling more work on our overworked planners unnecessarily which will be the undesirable end result if the 'all pubs protected' element have their way.

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De Listings

Posted by James Watson,

So far, CAMRA is aware of 3 de-listings on review, and two on appeal. The appeal cases are interesting. The first successful appeal was over the Tumbledown Dick in Farnborough. Although the Council (Rushmoor) was happy to ACV this gorgeous old coaching inn and famous music venue, they later went on to grant consent for McDonalds to destroy it and build a drive thru. Crazy! The judge then had no choice but to remove the ACV, as the building had effectively already converted. The other successful appeal resulted from an officer error, where a Council reviewing officer agreed it was not realistic to think that a pub would further the social wellbeing or social interest of the community in the next 5 years, yet he retained the pub on the register. This is unlawful. The judge again had to delist but he rejected the pub owners claim for costs. This was a rural pub that the owner wanted to convert to expensive housing. Shame. Recently a pub in Hitchin was removed on review, when the owner cynically used a retail conversion as a stepping stone to residential, hastily put in BEFORE the law change on 6th April. We've seen 2 London pubs recently use the same trick- the Green Dragon in Enfield and the Star in St Johns Wood. Both have put in mock up fake shops in order to bypass the ACV protection. Some 8 weeks since the law change, these tricks should now dry up. It's no longer possible to change use/demolish a pub without first pausing for 56 days to give the community the chance to get it ACV registered, whereupon PD rights are permanently removed. We need to continue to make the case for goverment to close these loopholes fully, for all the nation's pubs, whilst we still have some left.

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De Listings

Posted by James Watson,

So far, CAMRA is aware of 3 de-listings on review, and two on appeal. The appeal cases are interesting. The first successful appeal was over the Tumbledown Dick in Farnborough. Although the Council (Rushmoor) was happy to ACV this gorgeous old coaching inn and famous music venue, they later went on to grant consent for McDonalds to destroy it and build a drive thru. Crazy! The judge then had no choice but to remove the ACV, as the building had effectively already converted. The other successful appeal resulted from an officer error, where a Council reviewing officer agreed it was not realistic to think that a pub would further the social wellbeing or social interest of the community in the next 5 years, yet he retained the pub on the register. This is unlawful. The judge again had to delist but he rejected the pub owners claim for costs. This was a rural pub that the owner wanted to convert to expensive housing. Shame. Recently a pub in Hitchin was removed on review, when the owner cynically used a retail conversion as a stepping stone to residential, hastily put in BEFORE the law change on 6th April. We've seen 2 London pubs recently use the same trick- the Green Dragon in Enfield and the Star in St Johns Wood. Both have put in mock up fake shops in order to bypass the ACV protection. Some 8 weeks since the law change, these tricks should now dry up. It's no longer possible to change use/demolish a pub without first pausing for 56 days to give the community the chance to get it ACV registered, whereupon PD rights are permanently removed. We need to continue to make the case for goverment to close these loopholes fully, for all the nation's pubs, whilst we still have some left.

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