Case Reference: FT/CR/2024/0003
Community Right to Bid
Decided without a hearing
Before
JUDGE SAWARD
JUDGE HARRIS
Between
SATWINDER SANDHU
Appellant
and
SOUTH OXFORDSHIRE DISTRICT COUNCIL
Respondent
Decision: The appeal is dismissed.
REASONS
The Appeal
The Appellant is the registered owner of the former White Lion Public House, Crays Pond (“the White Lion”). This is an appeal against the decision of South Oxfordshire District Council (“the Council”) to uphold the listing of the White Lion as an Asset of Community Value (“ACV”) under the Localism Act 2011 (“the 2011 Act”). The Council’s decision is dated 2 October 2024. The appeal, dated 20 October 2024, is brought pursuant to Regulation 11 of The Assets of Community Value (England) Regulations 2012 (“the 2012 Regulations”).
The Appellant raises 3 grounds of appeal:
the White Lion is no longer viable as a public house;
there is no realistic prospect of community use resuming in the next 5 years; and
no credible community bid, or engagement has been made.
The Council opposes the appeal. In its response, the Council suggested that the White Lion Crays Pond Community Interest Company (“the CIC”), who made the nomination, be invited to become a party to this appeal. As no such application was formally made, the CIC has not been joined to the proceedings. The Tribunal finds no reason to add the CIC of its own initiative at this late stage. In our considerations we have had the benefit of the CIC’s nomination and supporting documentation along with its statement with appendix for this appeal.
The parties opted for a determination of the appeal on the papers. The documentary evidence comprises an indexed bundle formed of approximately 302 pages compiled by the Council. We note that the Appellant was unhappy with the order in which some documents appeared within the bundle. All the material has been considered by the Tribunal. We place no significance on the order in which documents appear or how they are described in the index.
The Tribunal is satisfied that it can properly determine the issues without a hearing in accordance with Rule 32 of the 2009 Rules.
Background
The White Lion traded as a public house up until August 2013. From July 2013 the White Lion was marketed for sale on behalf of the brewery as a freehouse. The registered title shows that the Appellant completed the purchase of the White Lion on 4 October 2013. The Appellant states that he intended to turn the public house into an Indian restaurant. This did not happen. In December 2013 the Appellant applied for planning permission to change the use of the White Lion to a single dwellinghouse. By that time an unauthorised sole residential use had already begun.
Planning permission was not granted for the change of use. When the sole residential use continued, the Council secured an Injunction Order from the High Court on 21 February 2019. This prohibits the Appellant from using the White Lion for residential use (except a residential use that is strictly ancillary to the primary use as a public house). The residential use has ceased.
The White Lion was first listed by the Council as an ACV in October 2013. The listing expired after 5 years in October 2018. It was listed by the Council again on 4 June 2019 and the decision upheld on review on 2 October 2019. The Appellant’s appeal against that decision was dismissed by this Tribunal following a hearing conducted on 30 November 2020 (“the 2020 Decision”).
The Law
The 2011 Act requires local authorities to maintain a list of assets (meaning buildings or other land) which are of community value (section 87(1)). Assets remain on the list for a period of 5 years, unless the time period is either removed earlier pursuant to section 87(5) or is amended by the relevant local authority, pursuant to section 87(4).
With emphasis added, section 88 provides:
“(1) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority's area is land of community value if in the opinion of the authority—
(a) an actual current 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 non-ancillary 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.
(2) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority's area that is not land of community value as a result of subsection (1) is land of community value if in the opinion of the local authority—
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community, and
(b) it is realistic to think that there is a time 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) The appropriate authority may by regulations—
(a) provide that a building or other land is not land of community value if the building or other land is specified in the regulations or is of a description specified in the regulations.
(b) provide that a building or other land in a local authority's area is not land of community value if the local authority or some other person specified in the regulations considers that the building or other land is of a description specified in the regulations.
(4) A description specified under subsection (3) may be framed by reference to such matters as the appropriate authority considers appropriate.
(5) In relation to any land, those matters include (in particular)—
(a) the owner of any estate or interest in any of the land or in other land; (b) any occupier of any of the land or of other land; (c) the nature of any estate or interest in any of the land or in other land; (d) any use to which any of the land or other land has been, is being or could be put; (e) statutory provisions, or things done under statutory provisions, that have effect (or do not have effect) in relation to— (i) any of the land or other land, or (ii) any of the matters within paragraphs (a) to (d); (f) any price, or value for any purpose, of any of the land or other land.
(6) In this section— “legislation” means— (a) an Act, or (b) a Measure or Act of the National Assembly for Wales; “social interests” includes (in particular) each of the following— (a) cultural interests; (b) recreational interests; (c) sporting interests; “statutory provision” means a provision of— (a) legislation, or (b) an instrument made under legislation.”
Section 89 goes on to provide that (so far as relevant in this case) land may only be listed by a local authority in response to a community nomination. Procedural requirements for nomination and listing are contained in the 2012 Regulations.
In Banner Homes Limited v St Albans City and District Council and Anor[2018] EWCA Civ 1187, the Court of Appeal gave the following overview of the system:
... The effect of the listing is that, generally speaking, an owner intending to sell the asset must give notice to the local authority. A community interest group then has six weeks in which to ask to be treated as a potential bidder. If it does so, the sale cannot take place for six months. The theory is that this period, known as a moratorium, will allow the community group to come up with an alternative proposal; although at the end of moratorium, it is entirely up to the owner whether the sale goes through, to whom and for how much. There are arrangements for the local authority to pay compensation to an owner who loses money in consequence of the asset being listed.
The Scheme therefore confers a right to bid (to a local community group as defined in the 2011 Act), but not a right to buy."
The Issues
It is undisputed that the White Lion is not currently in use. Therefore, section 88(1) of the 2011 Act does not apply. It is section 88(2) that falls for consideration. The main issues in this appeal are:
Was there a time in the recent past when the actual use of the White Lion (that was not an ancillary use) furthered the social wellbeing or interest of the local community?
Is it realistic to think that there is a time in the next five years when there could be non-ancillary use of the White Lion that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community?
Only if both questions are answered in the affirmative will the appeal be dismissed. Otherwise, the appeal will be allowed.
Findings of fact
The White Lion is the only public house in Crays Pond. It is located in the Chiltern Hills in South Oxfordshire.
The nomination for the White Lion to be listed as an ACV was made by the CIC on 19 April 2024. It was supported by 25 supporting statements, including some from residents of nearby villages. The nomination was accepted by the Council as valid.
The Council concluded that section 88(2) of the 2011 Act was met, and the White Lion was listed as an ACV on 14 June 2024.
The Appellant exercised his right to a review of the Council’s decision on 24 June 2024. By email dated 29 August 2024, the Appellant challenged the listing on the basis that there is no realistic opportunity of the White Lion reopening in the next 5 years.
At the request of the Appellant, a review hearing took place. The hearing was conducted by the Council’s Head of Planning held on 12 September 2024. The review decision upholding the listing followed on 2 October 2024.
The lawful use of the premises is as a drinking establishment. At no time has planning permission been granted for any other use.
The Appellant’s previous residential use from 2013 was unlawful resulting in the issue of an Enforcement Notice on 9 July 2014 which was upheld on appeal. A High Court injunction prohibiting residential use remains in place.
The CIC was incorporated on 7 April 2021.
When the Appellant placed the White Lion on the market for sale, the CIC submitted an intention to bid.
The CIC put forward an offer for the White Lion site on 29 April 2021 before the Appellant withdraw the premises from the market.
The CIC submitted further increased offers on 10 April 2023 and 4 April 2024.
Prior to its closure, the White Lion was used as a public house in excess of 100 years. A restaurant operated within the pub prior to its closure in August 2013.
Consideration
The approach of the Tribunal to appeals under section 88 of the 2011 Act is to consider the decision afresh. The question for the Tribunal to consider is whether the Council should have decided the matter differently. Appropriate weight is to be attached to the views of the Council as the body with institutional competence and relevant expertise in making such decisions.
Section 88(2)(a) - “in the recent past”
To fulfil section 88(2)(a), actual use either currently or in the recent past is required before a building or other land can be an ACV.In addition, that use must further the social wellbeing or social interests of the local community or has furthered such use in the recent past. Given that the public house has closed, we are clearly looking at past use.
In a witness statement from Andrew Duffield, the Council’s Head of Planning, it is stated that when the White Lion was open (pre-2013), it benefited the local and wider community to further their well-being and interests. This included a variety of groups, clubs and associations. This reflects the findings of the Tribunal upon the previous appeal that was decided in 2020.
At that time, Judge O’Connor noted at paragraph [17] of the 2002 Decision that, as a village pub, the White Lion served as a social meeting point and that it was used for that purpose particularly by elderly residents as well as residents of the nearby convalescence home. It was also used as a meeting place for parents and teachers of the nearby school along with a number of local groups and clubs. In addition, the White Lion had hosted larger community events such as Christmas and New Year parties and summer barbeques, whilst the large garden provided a space for children. Members of the local community had also used the pub to celebrate significant life events, such as birthdays, christenings and engagements.
We have no reason to come to a contrary view. We are satisfied that prior to its closure in 2013 there was an actual use of the premises which furthered the social wellbeing or interests of the local community. As of October 2019, such use was found to be in the “recent past” for section 88(2)(a) to be met.
A further 5 years have since elapsed and the question arises as to whether such use was still in the “recent past” at the time of the October 2024 listing decision. The term “recent past” is not defined in either the 2011 Act or the 2012 Regulations. The Council refers to current Government advice indicating that it is for the local authority to decide what amounts to the “recent past” and that in some cases 10-12 years could still be recent use depending on context. We take this to be a reference to non-statutory guidance. It carries little weight in our decision, which is made on the individual facts.
We note the other First-tier Tribunal decisions produced where in one case 8 years was found not to be the “recent past” whereas in another case 10 years was found to meet the test. These decisions reflect the need to consider each case on its individual merits. Neither decision is binding upon us as one First-tier Tribunal does not bind another. We are deciding a case on different facts.
The 2020 Decision is relevant as it concerns the same premises. In concluding in the 2020 Decision that the relevant use was in the “recent past”, account was taken of the fact that the White Lion had been operating as a public house for over 100 years in a very small community area. Those same factors remain relevant.
As set out by Judge O’Connor in the 2020 Decision at [15], in legislating the ‘past condition’ in section 88(2)(a), Parliament was deliberately imprecise, choosing to restrict the operation of that provision to relevant events falling within the “recent past”. It is not for the Tribunal to bring precision to the ‘past condition’ when Parliament has deliberately chosen to use imprecise language. What constitutes the recent past is a flexible concept and must depend on all the circumstances of a particular case. Then at [21], “recent past” is not a fixed concept and must be taken in the context of the material circumstances considered as a whole.
The White Lion has not traded as a public house/restaurant for over 11 years (as at the date of the Council’s latest decision). However, in the context of over a century’s use as a public house we consider that the period of 11 years is in the “recent past” in this particular case. In reaching this view, we bear in mind that it has been the owner’s decision for the use of the premises to lie dormant. The Appellant suggests that the White Lion has not traded since then because it is not viable as a public house. He refers to viability reports said to support his position, but only one from 2014 is produced. The fact remains that there was an offer of purchase from the CIC and subsequent increased offers, which could have seen the use of this important community facility resumed. The actual lawful use as a drinking establishment has at no time ended.
Section 88(2)(b) - “realistic to think”
Consideration turns to section 88(2)(b) and whether it is “realistic to think” that over the next 5 years there could be a primary (non-ancillary) use of the premises that would further the social wellbeing or social interests of the local community. That use would not need to be the same as before.
Recently in Dragonfly Architectural Services Limited v Brighton & Hove City Council [2025] UKUT 051 (AA) (“Dragonfly”), the Upper Tribunal considered what was intended by the words “realistic to think” in section 88(2)(b). Having reviewed the authorities concerning ACVs at some length, the Upper Tribunal set out a number of principles to be derived from them (at paragraph [19]). They included the following:
“realistic” means having to show a sensible and practical idea of what can be achieved or expected and representing things in a way which is accurate or true to life.
It is important not to concentrate on the hard-headed commercial or financial analysis and a detailed business case is not required, but it is necessary to show a sensible and practical idea of what can be achieved or expected.
The test is a low one, but there must be at least some indication that the aspirations are realistic.
In Dragonfly, the Upper Tribunal found it clear, at paragraphs [30-31] “that the test under the 2011 Act does not require findings of evaluation of likelihood, of commercial viability or of probability. On the contrary, the language of the statute is consistent with a number of realistic outcomes co-existing, the test is a low one, but there must be at least some indication that the aspirations are realistic, referring to a test of “not fanciful” as a synonym for “realistic” is not an error of law and what is “realistic” means a sensible and practical idea of what can be achieved or expected, without concentrating on hard-headed commercial or financial analysis and a detailed business case is not required.”
The Appellant relies upon viability evidence from 2014. Notwithstanding the age of the Sunderland report, the possibility of the White Lion being a community run public house or other community run venture was not considered, as identified by the Tribunal in the 2020 Decision. Letters published in the local press are not necessarily reflective of the wider community, and indeed some of the letters to which he refers originate from the Appellant himself.
Moreover, the issue is not whether a public house/restaurant at the White Lion can operate as a commercially viable business. The statute does not require long-term or commercial viability. Nor is the test a consideration of which outcome is more likely than not. The First-tier Tribunal has consistently explained that the test is not one of the civil standard of proof, which is designed to produce one outcome; the language of the statute is consistent with a number of realistic outcomes co-existing.
In this case, the White Lion is vacant. It had not traded as a public house for 11 years at the time of the latest listing decision. However, the lawful use of the premises remains as a drinking establishment. The premises cannot lawfully be used for any other purpose without the benefit of planning permission. As things stand, a residential use is prohibited by an Injunction Order obtained in 2019.
We find it material that the CIC has now been established. Its Company Report for year ending 30 April 2023 confirms that it was formed solely to make a bid for the pub when it came onto the market. Whilst the Appellant considers that no credible community bid or engagement has been made, this is not borne out by the letters and copy emails produced by the CIC. They demonstrate that offers of purchase have indeed been made of increasing amounts along with attempts to engage with the Appellant. Even if the Appellant considered the offers to be inadequate, they provide evidence that a willing buyer is capable of being found for the premises to be used for a primary purpose benefiting the local community.
The CIC has a business plan. The Appellant argues that the business plan has many errors leading to questions as to its validity. For instance, he queries the lack of financial data and disclosure of the sums raised or pledged, which might not materialise. The Appellant notes that the business plan is to lease to an experienced operator and asks who it is, what their experience is and their business plan. If reliance is to be placed on rental income, then the Appellant says that no account is taken for refurbishments or other expenditures. The model relies on a purchase price which the Appellant believes to be out-of-date.
It is not the task of this Tribunal to analyse the CIC’s business plan. We note that the Council examined the updated business plan of January 2024 that supported the ACV nomination. It contains financial estimates, projections and breakdowns. A copy is provided within the bundle. The Council recorded that the business plan explains how funds would be raised, the amount raised so far and various viability studies. The Council was satisfied that there was a clear indication from the business plan how the CIC would ensure the asset would be managed and restored over the following 5 years. We concur that the information suffices for these purposes to illustrate that the model is a realistic possibility for the future operation of the While Lion as a facility that furthers the social wellbeing or social interests of the local community over that timescale.
We further note from the documentation filed at Companies House that the CIC wishes to restore the functions as a conventional pub and restaurant and hopes to expand them with a coffee shop and to sell local produce.
There is a high level of public support for the White Lion with over 300 signatories in support on its website. This is backed by ‘in-principle’ offers of financial support to the CIC and pledges of support from local businesses. This is in a climate where many public houses are run by CIC’s, as illustrated in the numerous examples identified by the CIC.
The Appellant questions the CIC’s interest in opening the White Lion as a community pub when they did not accept his offer to rent it a lower rent than paid by previous landlords and free of ties. If the CIC refused such an offer, it is perhaps unsurprising given that its business model is founded upon purchase of the freehold. We attribute little weight to this argument.
The Council noted that the Appellant might simply allow the White Lion to sit idle for another 5 years without generating income, as he suggests. The Appellant categorically states that he will not sell to the CIC. Nevertheless, the premises have been marketed as a licensed premises in the last 5 years by a national agent. This firmly indicates that the Appellant would sell even if not to the CIC. The Appellant denies that any other parties have ever contacted him with an interest in running the White Lion. It does not automatically follow that a sale cannot be achieved for its lawful use or other community related use.
In our judgement, the aspirations of the premises being reopened as a public house or another community venture within the next 5 years are realistic. We consider that it is realistic to think that a purchaser or tenant could be found over the next 5 years who would be prepared to take the risk of acquiring the White Lion to run it for the social wellbeing or social interests of the local community.
Conclusion
The Tribunal is satisfied that the Council was correct to register the White Lion as an ACV. Accordingly, the appeal should be dismissed.
Signed: Judge Saward Date: 3 November 2025