Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
A local authority must put an asset on the list as being of community value if:
- there has been a valid nomination;
- the site is in the Council’s area;
- there is an actual current use of the site (or has been one in the recent past) which furthers the "social wellbeing or social interests" of the local community and which is not an “ancillary use”; and
- it is realistic to think that this use can (or could) continue.
Two recent decisions from the First Tier Tribunal on appeals in relation to listing have shed some – if not very much – light on the third point above, the question of use.
In General Conference of the New Church v Bristol City Council, the property in question was a church building with some land around it. In the recent past, as well as for worship and church activity, the church had been used by mums and toddler groups, Brownies, and other community organisations (though this use had dropped off). When the church closed (because the congregation had, sadly, dwindled to single figures) the General Conference proposed to sell the site. A local community group, keen to preserve both the building and the surrounding green space, nominated the site as an asset of community value.
The local authority agreed, and the General Conference appealed the decision. The Tribunal found in favour of the General Conference, on the basis that the use of the site was as a church – all other uses were, and always had been, ancillary to that use.
In Dorset County Council v Purbeck District Council, the listing application concerned playing fields which were adjacent to a school. Community groups used the playing fields in addition to their use by the school, though until very recently access was only through the school site. The school closed and community use continued – indeed a new entrance was created to allow direct access. The County Council decided it would be more sensible to sell the site and re-provide playing fields nearer the successor schools. Again, local groups applied to list the site; again, the responsible Council (Purbeck DC) agreed; and again, there was an appeal to the Tribunal.
The Tribunal found for the owner, and said that the use by community groups had always been ancillary to the main use by the school. The deciding arbiter reviewed the guidance and noted, quite rightly, that “there is no certain guidance or touchstone” in deciding these issues.
However, these two cases appear to indicate a relatively cautious approach to deciding on whether assets should be listed or not. In the General Conference case, the Tribunal did not, seemingly, consider the question of whether use as a church was, in and of itself, a use that could further the “social wellbeing” of the community (and there is surely an argument to be had that it could). Nor, in the Dorset case, did the Tribunal consider whether use as a school be held to further social wellbeing.
In both cases, the Tribunal made it clear that the matter was being decided on the facts. Nonetheless, when it comes to community value, it is clear that there remains much room for debate.
For more information
Contact David Alcock.
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