Newton vs Derbyshire Dales District Council & Starkholmes Allotment Association

This case concerned the listing of Starkholmes Road Allotments as an Asset of Community Value (ACV) under the Localism Act 2011, and the subsequent appeal by the landowner, Mr. Brian Newton, against this decision.

TLDR:

• Starkholmes Road Allotments were listed as an Asset of Community Value by Derbyshire Dales District Council.
• Mr. Newton, the landowner, appealed against the listing.
• The First-tier Tribunal upheld the decision to list the allotments as an ACV.
• The Tribunal considered the future use of the land and the criteria under the Localism Act 2011.

The Starkholmes Road Allotments were nominated by the Starkholmes Road Allotments Association (SAA) to be listed as an Asset of Community Value (ACV) by Derbyshire Dales District Council on or around 25 June 2021. The Council decided on 16 August 2021 that the allotments met the necessary criteria and listed them as an ACV. Mr. Brian Newton, the freehold owner of the allotments, exercised his right to request a review of this decision. The review was conducted by Mr. Lee Gardner, the Council's Legal Services Manager, who upheld the listing on 8 December 2021.

Mr. Newton then exercised his right of appeal against the review decision, and the SAA was subsequently added to the proceedings as the second respondent. The hearing of the appeal took place via Cloud Video Platform on 10 January 2023, with subsequent written submissions. Evidence was heard from several witnesses, including representatives from the SAA, the Council, and Mr. Newton himself.

The legal framework for listing an ACV is provided by the Localism Act 2011. Listing a building or land as an ACV means that when it is put up for sale, a six-week period begins during which a community group can express an interest in putting together a bid to buy it. If a community group expresses interest, a six-month moratorium on the sale is triggered to give them time to prepare a bid. There is no requirement that the property be sold to the community group or on any particular terms.

The relevant criteria for listing an ACV are provided by section 88(2) of the Localism Act 2011. The criteria include that an actual current use of the land furthers the social wellbeing or social interests of the local community, and it is realistic to think that such use can continue. Alternatively, if the use has ceased, it must have furthered the social wellbeing or interests of the community in the recent past, and it must be realistic to think that such use can resume in the next five years.

At the time of the listing decision, the allotments were still in use, and it was accepted that this use furthered the social wellbeing or interests of the local community. By the time of the appeal hearing, the allotment holders had been evicted, and community use had ceased. However, it was accepted that this occurred 'in the recent past'. The central issue was whether it was realistic to think that community use could continue in the future.

The Tribunal considered the meaning of 'realistic to think' in the context of future use. Previous case law, such as R. (TV Harrison CIC) v Leeds School Sports Association and Gullivers Bowls Club Ltd v Rother District Council, was reviewed. The Tribunal emphasized that the legislation does not require a potential future use to be more likely than not to come into being, but rather that it must be a realistic possibility.

Mr. Newton argued that there was no realistic prospect of the allotments continuing to be used for community purposes, as he intended to pursue residential development or let the land turn to scrub if planning permission was not granted. However, the Tribunal found that the Council was entitled to consider the possibility of compulsory purchase or leasing by the Town Council under the Small Holdings and Allotments Act 1908. The Tribunal also noted the strong community support for the allotments.

After considering all the evidence, the Tribunal concluded that the decision to list the allotments as an ACV was not wrong. The Tribunal found that there were realistic possibilities for the continuation of community use, either through compulsory acquisition or other means. Therefore, the appeal was dismissed.