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26th June 2018

Field used by trespassers can be an asset of community value

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The Court of Appeal has considered for the first time the scheme relating to assets of community value (ACV) introduced by the Localism Act 2011. Under the scheme, if a building or other land has an actual use which furthers the social wellbeing or social interest of the local community a local council can list it as an ACV. A listing means that the owner of the ACV has to inform the council if it intends to sell the asset, and must give community groups 6 months to raise money to buy it, although the owner is not obliged to sell to a community group. In a recent case, the council listed an undeveloped field as an ACV. The public had used the field for recreational activities for many years and the landowner had done nothing to stop the use. It was argued that because the use of the field was a trespass and therefore unlawful, it could not be a qualifying use for the purposes of the ACV regime.

The Court of Appeal held that the words ‘actual use’ in the legislation should be given a literal meaning, and it would undermine the ACV scheme if use that was technically unlawful prevented the public benefit of an ACV listing.  It therefore upheld the listing.

It is likely that the decision will have the effect of landowners restricting public use of undeveloped land in order to protect potential development value. This case is an example of the perils of failing to control public access to undeveloped land. Other possible consequences of public use of land are applications to register the land as a town and village green or to record new public rights of way over it.

For further information please contact Emma Bowman on 01223 532717 or click here to email Emma.