1) Firstly, understand what the ACV means and how it works:
The Localism Act 2011 is intended to protect the pub from development or permanent closure resulting in the loss of the community facility. Groups of 21 people who are registered as living within the local area authority’s area or the Parish council can submit the nomination.
2) How the Definition is applied:
If in the opinion of the authority the nomination meets the definition of the Localism Act, then the building is placed on the list of assets of community value. The definition requires the following criteria to be met:
Section 1:
The land is of community value if in the opinion of the local authority a use of the building or other land that is not an ancillary use furthers the social wellbeing or social interests of the local community, and
(b) it is realistic to think that there can continue to be use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community
If Section (1) does not apply then the authority must apply Section (2)
Section 2:
(a) there is a time in the recent past when an actual use of the building or other land that was furthered the social wellbeing or interests of the local community, and it is realistic to think that in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.
3) How do I know if my pub has been nominated?
You may not know that a community group or the parish council is planning on nominating your pub but when the nomination is submitted to the authority you should receive written notification from the local authority. This is a requirement of the Act but I have seen cases where the owner was not informed. The nomination presents the first opportunity for an objection to be lodged. The local authority has up to 8 weeks from the date upon which the nomination was submitted to arrive at its decision whether or not to list the building.
4) Who decides if my pub qualifies for listing?
Most local authorities have a group of officers from across the spectrum who meet to discuss nominations. The group’s chair-person will have sufficient knowledge of the Act to enable them to guide members and to evaluate the details on the nomination form and to take into consideration any objections from the owner if they have been received. Often, however, owners are unaware of being able to submit such objection. There are some grey areas in the legislation and it might be that two local authorities react to the same circumstances in a different way.
5) What does it mean for me and my pub?
When your pub is listed, the act requires the listing to be recorded as a local land charge. The land charge will then be registered against the property for five years. You will not be able to offer your property for sale on a confidential basis any longer. If someone knocks on your door and wants to the pub, they must wait six months to give the community time to get together a bid. If you are selling the pub as a going concern, the six month period is not triggered.
6) I’m not happy. Can the decision be revoked?
Once listed the owner and his tenant (if that is the case) should be notified of the fact in writing and advised that they have 8 weeks during which they can request a review of the decision to list the building as an ACV. This process is not to be confused with an appeal which could follow later. The request for a review carries no monetary cost except if the owner chooses to have professional representation. In my experience, it is crucial to provide the review officer with a robust account of why the property should not have been listed. If an owner is unhappy, the review is the perfect platform to challenge the decision.
7) What happens if the Review Officer upholds the listing?
The review decision must be reached within 8 weeks of it being received. The officer will have considered all the evidence with a letter relaying the decision to the owner or his representative and the community group. If the decision to list is upheld the owner has the right to appeal to the First Tier Tribunal. This final avenue (other than judicial review) should only be pursued if the local authority has in your opinion failed to apply the definition of the Act correctly and there is clear evidence that the listing should be revoked. In my experience the tribunal judge is reluctant to overrule the review officer unless there is a clear case of negligence.
8) Can I be compensated?
A victory at Review or Tribunal where the listing is revoked and removed from the register offers an opportunity to claim compensation from the LA. Be warned-any loss is always difficult to justify.
9) The way forward
More new legislation is being proposed including a longer moratorium and a reserve price. A group of unhappy owners has formed Owners United and would like more support from the sector.