When a property is registered as an asset of community value (ACV) under the Localism Act 2011 the result can be a major headache for would-be developers. However, as a case concerning the future of a much-loved former golf course showed, overturning such a registration can be an uphill struggle.
The course was almost a century old and was the work of a legendary sporting architect. It had, however, struggled financially for some years and the final blow came in the form of the COVID-19 pandemic. Following its closure, the local authority acceded to requests from local people and registered it as an ACV.
The registration meant that the course's freehold owner, which had been acquired by a property developer for £3.2 million, could not sell the land without giving notice to the council. If a community interest group came forward with the intention of putting in an alternative bid, the owner would face a six-month moratorium on any sale.
In challenging the registration, the owner asserted, amongst other things, that it had no intention of selling the course. There was no realistic prospect of the course reopening, or of any other community use being established on the land, within five years. No economically viable alternative proposal had been put forward and, given the high value of the land – as reflected by the price the developer had recently paid for its owner – it would not be practicable for a community interest group to raise sufficient funds to purchase it.
Dismissing the appeal, however, the First-tier Tribunal (FTT) noted that the highly rated course had long been one of the area's most famous landmarks. There was a high demand for golfing facilities in the area and, although it had been allowed to run wild since its closure, the course was highly valued as a green oasis for inner-city wildlife.
The FTT emphasised that the sole issue for it to decide was whether it was realistic to think that the course could be used within five years for any purpose that furthered the social wellbeing or interests of the local community. The establishment of such a use did not have to be likely or probable, but merely possible, in the sense of not being fanciful.
There was a risk that the developer's attempts to gain planning permission to build on the course would not bear fruit. Negotiations to lift a restrictive covenant – which confined the use of part of the land to that of a golf course and clubhouse – might also be unsuccessful. It was realistic that a lifestyle purchaser might come forward who would be willing to work with the local community to create a green space for all sorts of different social and recreational activities.
At the registration stage, it was not necessary to establish that community use of the land would make financial sense. Such uses need not be, and often are not, commercially profitable. It was important not to confuse such questions of economic viability with what community enthusiasm and innovation and a specialist investor with a large amount of capital might achieve together.