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Assets of Community Value – a NIMBY lifeline?

Objectors are always looking for new, low cost ways to stop or delay the offending development. Lobbying for town and village green designations used to achieve this, but as the effectiveness of that route has been hampered by changes in the law NIMBYs have been offered a lifeline in the form of Assets of Community Value (ACVs).

How do they work?

ACVs are a way for communities to protect spaces of community value. A community group nominates an asset to the local authority who then decides whether it meets the registration criteria. Typically, communities have used the ACV process to protect their local pub or village shop, but a recent case reminds us that ACVs apply equally to open land.

The Banner Homes case

Open land was the issue in the Banner Homes case. Following an on-going battle with St Albans City and District Council regarding the ACV registration of one of their development sites, Banner Homes took the matter to the Court of Appeal. They didn’t win though. Although Banner Homes had not agreed to the community using the land (in fact, everyone accepted that the use had been trespass!), it was still enough to satisfy the ‘social wellbeing’ requirements of an ACV, and the land’s registration as an ACV stood.

So what can be done?

If your site is registered as an ACV, all is not lost. Yes, the ACV designation might add complexity and delay, but it is not fatal. There is nothing to stop planning permission being sought and obtained at any point in the ACV process, or during its registration as an ACV (which lasts for five years). However, the local authority can view the designation as a material consideration when deciding an application, which might weigh against it.

What about landowners who want to sell a site on to a developer?

This is the point where the ACV registration bites. An owner wishing to sell an ACV must notify the local authority. This starts a 6 week ‘interim moratorium’ to allow the community group to consider submitting a bid. If the group registers an interest in bidding, a 6 month ‘full moratorium’ begins during which the land cannot be sold (except to the group). However, at no point is there any obligation on an owner to sell, and once the moratorium periods have been cleared, it is business as usual.

The bitter irony

Interestingly, although ACVs were brought in to protect community spaces, when it comes to open land, it may end up having the opposite effect. The unintended fall-out of the Banner Homes case is that developers are likely to fence off sites to stop public use. In doing this, developers minimise the risk of an ACV nomination, but are also removing the very opportunities for social wellbeing that ACVs were brought in to foster.