Actual Use, Lawful Use and Ancillary Use – when designating Assets of Community Value
February 12, 2020
Towards the end of last year, the General Regulatory Chamber of the First-Tier Tribunal (‘FTT’) determined an appeal by the owner of a 46-acre greenfield site against the decision of the local authority, Winchester City Council, to list the land as an Asset of Community Value (‘ACV’).
Apart from a single field leased to a conservation organisation for use as a nature reserve, the majority of the land, known as Oliver’s Battery, having previously been used for agriculture had, at the time of the nomination (by the local Parish Council), been ‘set-aside’ and not actively farmed, with the owner in receipt of payments under the Basic Payment Scheme on the basis of ‘greening practices beneficial for climate and environment.’ What this meant in practice was that the land was mown once a year but was otherwise left undisturbed.
There were no public rights of way over the set-aside land although there were a mixture of public footpaths and bridleways around the perimeter and the portion use as a nature reserve was described as ‘open access’ land. Towards the centre of the set-aside land were two historic mounds, referred to locally as ‘tumuli’, which appear to have been something of a local curiosity. Suffice it to say that whether or not there was a public right of access to the land, there was evidence that the public went onto the land for recreational purposes and it was on the basis of such use that the City Council decided that the land should be listed as an ACV, holding that the public use was, in the words of Section 88 of the Localism Act 2011 an actual current use that was not an ancillary use and that “furthers the social wellbeing or social interests of the local community.”
The landowner, who intended to develop the land for housing, appealed against the Council’s decision on the grounds that any use of the land by the general public was de minimis, unlawful and incidental to the lawful use of the public rights of way around the perimeter: it was at best a use ancillary to the lawful agricultural use and therefore not a use which supported listing as an ACV.
The FTT, following Banner Homes Ltd v St Albans District Council  EWCA Civ 1187, held that the question is not whether a use is lawful but whether it is an actual current use that furthers the social wellbeing or social interests of the local community. Notwithstanding that the land was ‘set-aside’, agriculture was an actual current use of the land. Use by the local community for recreational and sporting purposes was also an actual current use of the land and could not be said to be ancillary to the agricultural use, which following the decision to set-aside the land only consisted of mowing once a year whereas the public use was on a daily basis. The public’s use of the land had become, in effect, use as a recreation field and was sufficiently frequent and well established to be an actual current use and not an ancillary use. The FTT dismissed the appeal.
Case Ref: Oliver’s Battery Ltd v (1) Winchester City Council (2) Oliver’s Battery Parish Council (CR/2019/0001).