Telecoms Code - can Code rights be defeated where a land owner intends to redevelop?
Chris Marsden | 25.07.2019
11.03.2019 Steven Watts
The recent case of Banner Homes Limited v St Albans City and District Council illustrates how the Asset of Community Value scheme can cause problems to development. In this particular case, a field was listed as an Asset of Community Value (“ACV”) – despite its use by the local community having been unlawful.
Banner Homes was the owner of a field which was bisected by two public footpaths. The public would stray from the public footpaths onto the wider field and for a period of more than 40 years used the field for various recreational activities, such as walking, exercising dogs, children playing and photography of local flora and fauna.
Banner Homes had not given express permission to the local community to use the land beyond the public footpaths, although it was aware that such use had taken place and had not objected to such use. A local residents’ association nominated the land to be listed as an ACV and the listing was confirmed by the local authority.
Banner Homes appealed the decision to list the field as an ACV on the basis that the actual use by the local community was unlawful as it constituted a trespass. It was common ground that the use of the field beyond the public footpaths for recreational activities constituted a trespass.
An internal review by the local authority confirmed the listing and Banner Homes was unsuccessful in its subsequent appeals to the First-Tier Tribunal, Upper Tribunal and Court of Appeal. The decisive factor in this case was that the Court of Appeal was not prepared to accept that the actual use of the field by the public needed to be a lawful use.
What are the implications of land being listed as an Asset of Community Value?
The local authority keeps a list of assets that are of community value and an affected landowner must notify the local authority of its intent to sell or grant a long lease of such an asset. This notice affords the community the opportunity to bid to purchase the property and community groups have a six week period within which to ask to be treated as a potential bidder.
If any such notice is given by a community group, a six month moratorium period applies, during which only bids from community groups can be accepted. The owner is not obliged to sell to any such community group and after the expiry of the moratorium period, is entitled to sell the land to anyone else.