What if your hands are ACV tied?

If a pub gets nominated as an ACV what can you do about it?

The local authority will receive a nomination from a community group for the pub to be listed as an ACV. The process to nominate is simple and can be carried out online.

Former licensee Steve Culverhouse, who runs www.change-of-use.com, says that once the nomination is received, the local authority should notify the owner of the property and the tenant of the intention to list the pub.

“The local authority then has eight weeks to make a decision as to whether or not the nomination meets the requirements of the Localism Act 2011 and conforms with the definition or test within the act,” Culverhouse says.

At this stage, the owner of the pub can submit an objection. But if the nomination meets the criteria then the pub is added to the list and the owner is then informed of the decision, usually by letter.

Simon Chaplin head of pubs & restaurants at property adviser Christie & Co, says it is important to comment at this early stage. The council will provide disclosure of the nomination documents, if asked, but it may redact some personal details of the nominator, he advises.

“It is important to comment on a nomination, because aspects of it may be inaccurate or wrong and will require correcting, or it may be that the owner wants to challenge the reasons for listing the pub as an ACV,” he argues.

Chris Rogers, associate at property consultant Everard Cole, advises licensees to take some professional advice at this stage.

“Otherwise contact the local council or search the Government website for information. The legislation states that the landowner should be notified when the property is nominated and about 90% of pub nominations are then, in turn, listed,” Rogers says. “All communication from the local authority (and the nominating body, if it occurs) should be logged.”

What are the practical steps to challenging an ACV?

If the licensee is unhappy with the decision then they can request a review, which the local authority is obliged to carry out. However, any costs of a review will have to be covered by the owner of the pub.

Culverhouse says: “The review should be carried out by a senior officer within the local authority who was not involved with the original decision to list the pub. The owner may appoint a representative and the local authority should provide all relevant papers to the individual who can make represen-tations to the local authority orally or in writing or both, which are then considered by the review officer.”

If the officer upholds the listing, there is still a chance of a further review. The owner may appeal to the first-tier tribunal of the court system within 28 days. If successful there, the owner might be able to claim their legal costs back from the council.

Rogers says that listings can be challenged on process grounds if incorrectly submitted. However, successful challenges tend to be those that prove the premises does not satisfy the criteria of “furthering the social wellbeing of the community”, he adds.

Chaplin argues that the most effective way is to challenge a nomination as soon as it is made. “It might even be possible to judicially review the council’s decision if there is a good reason why the council’s own review process or the tribunal’s appeal process should not be followed. However, this is likely to be very rare and the most expensive way of challenging the listing,” he argues.

How should owners and licensees engage with the local community and council?

Chaplin says owners should be open and honest. “If the ACV listing will have an adverse impact on the owner and the business then he or she should tell the local community because that may not be the impact that they want to have,” he says.

“If their intention is to try to retain the business as a pub, then there may be other ways for them to achieve their objective, for example, opposing any planning application.”

Have ACVs got a bad press?

Yes and no, thinks Rogers. He says that when the legislation was initially introduced, ACVs were seen as a ‘badge of honour’.

But there has been a change in that view because of the way in which ACVs are now being used. “In the absence of stronger guidance from the Department for Communities & Local Government about the weight a listing holds as a material planning consideration, they have been used ostensibly as a tool to prevent redevelopment/change of use,” he adds.

Chaplin says that ACVs are reducing the appeal of pubs to entrepreneurs looking to invest and develop them as successful businesses.

“I’ve experienced cases where a pub is being sold and they’ve found a buyer who wants to keep it as a pub but the local community have had it ACV-listed.

“The community then delayed the sale by six months and the buyer walked away,” he says.

Case study: The Duke of Hamilton

Steve Coxshall, owner of the Duke of Hamilton, in Hampstead, north London, banned a community group that had his pub listed as an ACV.

The ex-stockbroker barred the 800 members of the Hampstead Neighbourhood Forum and called them “idiots” after they obtained the listing in 2015.

He says the move has not affected his business because they failed to even use the pub as customers.

Initially, he had a meeting with one of the instigators of the listing who promised to support the business. “She ordered half a pint and then we never saw her after that. The group was having its meetings in local schools and not using the pub. It’s utterly ridiculous and it just really annoys me,” he says.

He decided not to challenge the listing due to the legal costs and the fact that he has no intention of selling the premises.

“You get to a point where you have to pick your fights. It was just more money with lawyers. I had many meetings after the event with Camden Council and there was no point,” he says.

“The problem is that you have interfering busy bodies who don’t have any credibility and have nothing better to do.”

Coxshall said it was an “outrage” that the council has the right to sign off an ACV but will provide no additional help for the business, such as discounted business rates. “I have had to introduce a theatre to keep this pub alive. But the council didn’t listen. I have no intention of investing any more money into this area when people like that can interfere,” he says.