Adrian Russell (for the Rose and Crown Community Pub Group) v Bracknell Forest Borough Council & Anor

The FTT correctly described the effect of listing assets of community value under the Localism Act 2011 (‘the Act’) at [3] of its decision:

The moratorium is provided by section 95 of the Act:

Sections 87-90 of the Act provide for the nomination and listing of assets of community value, as relevant to this appeal:

In this section—

cultural interests;

recreational interests;

sporting interests;

by a person that is a voluntary or community body with a local connection…

This section applies if a local authority receives a community nomination.

The authority must consider the nomination.

The authority must accept the nomination if the land nominated—

is in the authority’s area, and

is of community value.

Once notified pursuant to section 91 of the Act, the owner of the land may request a review by the local authority of the decision to include the land in the list pursuant to section 92. If the review does not lead to removal of the land, the owner may then pursue an appeal to the FTT pursuant to the Regulations as set out below.

Regulations 2, 4, 5, 6, 7, 10 & 11 of the Assets of Community Value (England) Regulations 2012 (“the Regulations”) relevantly provide for the listing of assets of community value, the interpretation and application of sections 88-95 of the Localism Act 2011 and appeals to the FTT against listing decisions:

with the local authority’s area, or

with a neighbouring authority’s area;

for the benefit of the local authority’s area, or

for the benefit of a neighbouring authority’s area; and

in the case of a body within regulation 5(1)(c) it has at least 21 local members.

an unincorporated body—

whose members include at least 21 individuals, and

which does not distribute any surplus it makes to its members;

A community nomination must include the following matters—

Most relevantly for the purposes of this appeal, a local authority can only consider whether to include land in its area in its list of assets of community value in response to a ‘community nomination’ or where permitted by Regulations. A ‘community nomination’ can be made by a number of bodies as defined in regulation 5 of the Regulations so long as they have a ‘local connection’ as defined in regulation 4. These bodies include a ‘voluntary or community body’ as defined by Regulation 5(1)(c) which is underlined above.

As set out above, permission to appeal was granted by the Upper Tribunal on two grounds of appeal, namely whether the FTT erred in law in:

The Appellant had raised different grounds of appeal in the Notice of Appeal submitted to the FTT dated 27 February 2020 and to the Upper Tribunal dated 15 April 2020.

In summary, the Appellant submitted on behalf of the Group that the FTT erred in making its decision because it had no evidence to support its conclusions on the two issues it decided, it failed to take into account relevant evidence in a number of important matters, gave insufficient reasons for its conclusions on each.

In particular it was submitted that the FTT tailed to take into account relevant evidence in finding at [27] that the purpose or the intention of the Group was only to prevent the planning application by PML and putting forward a community bid was not the real intention of the Group nomination of the Pub to be included in the list of assets of community value. Further, the Appellant submitted that the FTT erred in its finding at [28] that ‘no information has been provided about what funds would be available to the group and how those funds would be used or distributed.’

The Appellant also submitted that the FTT failed to provide procedural fairness and breached natural justice when proceeding on the papers, without an oral hearing. In particular he submitted the FTT failed to give the Group the opportunity to provide written and oral evidence rebutting the evidence on which the FTT relied to make findings at [18]-[20] of the decision that were mixed purposes of the prominent members of the Group and their primary purpose in nominating the Pub was not to list it as an ACV but to block a planning permission application.

I permitted the Appellant and Ms Valerie Goodwin-Higson to make oral submissions on each of these grounds during the hearing. This was on the basis, that were I to find that the FTT erred in law, I would have to decide whether to remit or re-make the FTT’s decision. The submissions were relevant to the evidence before the FTT and whether the weight of such was sufficient to satisfy the statutory conditions for the listing of the Pub as an asset of Community Value.

I address these grounds of appeal and submissions below.

The FTT decided that the Group was not a community group for the purpose of Regulation 5(1)(c) of the Regulations such that it could not make a valid nomination for the Pub to be listed as an asset of community value (see [14]-[28] of the decision set out above).

Section 89(2)(b)(iii) of the Localism Act 2011 provides that a ‘“community nomination”, in relation to a local authority, means a nomination which—

Regulation 5(1)(c) of the Regulations defines ‘a voluntary or community body’ and Regulation 4 defines ‘a local connection’. There was no dispute in this case that Regulation 4(1)(a)(i) was satisfied - the Group had a local connection with land (the Pub) in the local authority’s area as the body’s activities were wholly or partly concerned with the local authority’s area.

Regulation 5(1)(c) provides the definition of a ‘voluntary or community body’ for the purposes of s.89(2)(b)(iii) as: (c) an unincorporated body- (i) whose members include at least 21 individuals, and (ii) which does not distribute any surplus it makes to its members.

In compliance with Regulations 4(1)(c) and 5(1)(c)(i) the Group had at least 21 local members – that was not in dispute in this appeal.

However, the FTT decided that the Group was not an unincorporated body.

The definition of an ‘unincorporated body’ in Regulation 5(1)(c) is not provided in the Act nor Regulations but is a matter of common law. Lawton LJ’s judgment in Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 1 WLR 522, considering the meaning of an ‘unincorporated association’, is a useful starting point:

This is consistent with the FTT’s decision at [26]-[27] when providing a definition of ‘an unincorporated body’:

Therefore I am not satisfied that the FTT erred in law at [27] in deciding that in order to constitute ‘an unincorporated body’ for the purposes Regulation 5(1)(c), a group of individuals must be associated by means of being identified as belonging to the same body and that the individuals must share at least one common interest, activity or purpose in belonging to that body.

Further, there are likely, though not required, to be express oral or written rules as to how membership is identified and how the body is to operate – how its common interest, activity or purpose is to be exercised or achieved. The rules themselves, may place further restrictions requiring specific types of activities, interests of purposes to be shared and performed and the level of agreement (including unanimity) between members of the body.

In PML’s submissions to the FTT, it submitted that in considering whether a body exists:

I agree with submissions a) and b).v Like the FTT, I agree that the identification and operation of membership should be specified by oral or written rules (implied or express). However, I consider that c) is too prescriptive. A body does not necessarily need to hold or use funds in order to constitute an unincorporated body and therefore rules as to the distribution of funds may not always be necessary. While it is very likely that a community body would need funds in order to be able to put in a bid to purchase the ACV during the moratorium period, if it is listed, there is no legal requirement for this.

Nonetheless, if the body does collect and use funds then it must comply with the Regulations. The body is not prohibited from making a surplus (or profit) from its activities but this must not be distributed to its members by virtue of Regulation 5(1)(c)(ii). By virtue of Regulation 4(1)(b, any surplus it makes must be wholly or partly applied — (i) for the benefit of the local authority’s area, or (ii) for the benefit of a neighbouring authority’s area.

Further, for the purposes of the Regulations, the body must perform some type of activity which has a local connection. Regulation 4, in imposing a local connection, requires the body to perform ‘activities’ which are wholly or partly concerned with the local authority’s area.

In addition, section 89(2)(b)(iii) of the Act and Regulation 5 must inevitably require that the activities, interest or purpose of the unincorporated body must be of a voluntary or community nature in order to constitute ‘a voluntary or community body’.

In applying these principles, I am satisfied that the FTT erred in interpreting the definition of a voluntary or community body to require the members of the body to have unanimity over every aspect of its motive, policy and purpose.

While the members must identify their belonging to the body and the body have at least one identified and shared common interest or purpose which is expressed through its activities, each member does not have to be unanimous in how any common purpose or interest is to be exercised or achieved, unless the rules of the group require this.

Applying these principles is a fact specific decision based upon any express or implied, written or oral rules that the body has. While all members may have to share in at least one of the common purposes, interests or activities of the body (if it has more than one), unanimity in relation to each is not required (unless expressly stipulated by the rules of the body).

Therefore, I am satisfied that the FTT erred in the application of its own test as formulated in finding at [27].

First, I am satisfied there was an error of law because the FTT did not decide what each of the common or shared purposes of the Group were when deciding that there was ‘not one common purpose’ of the Group at [27] . Even if it found that the Group had no unanimity of purpose or interest in the preservation of the pub and putting forward of the community bid, this did not prevent it from being an unincorporated body if the members had unanimity in respect of at least one other purpose of the Group.

Second, and in any event, I am satisfied the FTT failed to take into account relevant evidence, as submitted by the Appellant, which demonstrates an additional error of law.

Even were unanimity of purpose required and there was only one aim or purpose of the Group, there was evidence of such before the FTT that should have been considered in make a factual finding on the balance of probabilities as to whether there was a unanimous common purpose of the group. If unanimity in relation to this purpose was not required, it was relevant evidence of majority support.

On the facts of this case, there was undisputed evidence before the FTT of the following: that the Group had 175 members at the relevant time, each of whom had completed a membership form (120 of which were in the bundle before the FTT).

The forms began with a typewritten statement to which each member assented by handwritten signature (and dated in various dates in January 2019): ‘I would like to join the group formed to protect The Rose and Crown Pub at 108 High St, Sandhurst GU47 8HA….I give permission for my name to be used to support an application for registration of the pub as an Asset of Community Value under the Localism Act 2011’.

This was relevant evidence to be taken into account when deciding whether there was unanimity of at least one shared purpose held by each member of the Group (even if not unanimity in all of the purposes) – to support an application for registration of the pub as an Asset of Community Value under the Localism Act 2011. From this evidence, the same shared purpose may be inferred regards the Rose and Crown Supporters – the community body which made the nomination in September 2018.

The FTT failed to take into account and address this evidence in making its decision. This was all the more important, because this was a stated intention in the membership forms of the three prominent members, Mr Russell, Mrs Goodwin-Higson and Mrs Ferrer, whom the FTT decided did not in fact hold that purpose (see [18]-[20] & [27]).

As the Appellant submitted, if the FTT was not going to accept this evidence and preferred to find that they did not hold the ‘real intention’ as stated, then it should have afforded the Group (and the individuals) procedural fairness. He submits that the FTT took isolated parts of correspondence out of context in finding against him and the prominent members of the Group that they did not hold a true or real intention to list the Pub as an ACV despite that being their case.

At [15] the FTT decided it was not required to adjourn the case and invite submissions as to whether the Group was a community body. However, this was the central issue on which it decided against the Appellant / the Group. This included considering the Groups purposes. The Group, through its nominated representative, was an unrepresented party which could not safely be inferred to have understood the case which it was required to meet on this point.

The FTT proceeded to find against the Group without any submissions of fact or law upon the issue of a) what its purposes were; and b) the level of support of its members for each purpose. It did so without hearing any oral evidence or cross examination suggesting that the prominent individuals did not hold a true intention to list the Pub as an ACV but only to halt a planning application by PML. It therefore erred in failing to provide an opportunity for written and oral submissions and evidence on a central issue – denying the Group natural justice.

I accept the Appellant’s submission that it could have made a material difference to the FTT’s finding at [18]-[20], which relied on correspondence and conversations with Mr Bull of the Council, if they had been able to give written or oral evidence rebutting any suggestion that they were only intent on blocking planning permission for the Pub and had no intention to list it as an ACV (or thereafter collect funds in order to purchase it if needs be).

I am satisfied of a further error of law. The FTT accepted at [26] of its decision that the fact that the Constitution of the Group was not signed (and therefore not formally adopted) did not mean it was irrelevant to its determination.

The Constitution of the Group, which was before the FTT, was a three-page document stating that it had been updated in January 2019. While there was no evidence before the FTT regarding the rules or constitution of the ‘Rose & Crown Pub Supporters’, which was the predecessor community body which made the nomination of the Pub for inclusion in the list in September 2018, it remained relevant evidence.

The Group’s constitution was titled ‘The Rose & Crown Pub Community Group Constitution’ whose aims were set out in paragraph 2:

Again, the FTT failed to take into account and address this evidence in making its decision at [26] & [27]. I am satisfied that this failure reveals a further error of law.

Even were unanimity of purpose required – this was further evidence of such that could have been sufficient to make a factual finding on the balance of probabilities that there was at least one, if not three, unanimous common purposes of the group.

Further and in any event, the Rules of the Group did not require unanimity in relation to each of its decisions, activities or purposes. The Constitution (at paragraphs 7, 9 & 10) did provide relevantly that decisions could be taken by a bare majority of members present at the relevant meetings at which the business of the Group was to be decided (or a two thirds majority for amendments to the Constitution):

This was relevant evidence which the FTT failed to address at [27] in considering whether only a majority of the Group’s members was required to wish to list the Pub as an ACV and therefore it did not matter if a minority of members only hoped to prevent the planning application of PML.

There was a further reason why the FTT decided that the body was not a community body for the purposes of Regulation 5(1)(c)(ii). At [28] of the decision, the FTT stated:

I am satisfied that the FTT erred in this analysis for two reasons.

First, there was no evidence that the Group held or would make any surplus funds (or profits) which it would be required to distribute. The evidence relied upon was that over half the Group stated that they would be interested in offering financial support to buy the Pub. The fact that is not clear how any funds collected would be used or distributed was not evidence that the Group would make a surplus which it was required to distribute to members. It is not apparent how any such financial contribution to purchasing the pub (which is the obvious use for which funds collected would be put) would involve the Group holding any surplus funds or needing rules about this.

Second, for the reasons I have set out above, I am satisfied that unanimity between members is not required as to whether to provide financial support to purchase the Pub or how surplus funds would be used or distributed. The Constitution had no rules concerning the collection, use or distribution of funds. Further, the Constitution of the Group does not require unanimity and a bare majority of the membership would suffice in order for it to purchase the Pub (and there being evidence that a bare majority of members would support this) or decide how surplus funds would be used or distributed.

As a second reason for allowing the appeal, the FTT decided that the requirement in section 88(1)(b) of the Localism Act 2011 was not satisfied. On the basis of the evidence before it, the FTT found that it is not realistic to think that there could continue to be non-ancillary use of the Pub which would further the social wellbeing or social interests of the local community (see [29]-[30] of the decision). Therefore, the Pub could not be of community value nor listed as such.

At [30] the FTT concluded that section 88(1)(b) was not satisfied because:

I am satisfied that Ground 2 is made out: the FTT erred in concluding that the test in section 88(1)(b) was not satisfied because not all of the members of the Group sought to purchase the Pub.

The first error is that which I have already addressed above – neither the common law nor the Rules of the Group’s Constitution required there to be a unanimous purpose of all members of the Group to purchase the Pub. There was a bare majority of members who supported this purpose (as evidenced in their membership forms) and that would be all the Constitution required. The fact that some members (or a large number short of a majority) may have opposed this purpose or had other purposes in joining the Group did not undermine the Group being a community body with at least one shared purpose – the one purpose set out in the membership form and the three aims set out in the Constitution.

There is a second error in the FTT’s analysis. The FTT further erred because the additional purpose of the Group - whether or not to purchase the Pub – was irrelevant to the question of whether section 88(1)(b) was satisfied.

The test in law for a building or land to be land of a community value is whether:

The FTT appears to have been satisfied on the evidence that section 88(1)(a) applied – that the Pub’s actual or current use that was not an ancillary use, furthered the social wellbeing or social interest of the local community (there was evidence as to the Pub’s core uses including hosting community events, singing and quiz nights etc in addition to the consumption of food and alcohol).

In its decision at [29]-[30], the FTT failed to address the question of whether there could continue to be non-ancillary use of the Pub (irrespective of whether it might be purchased by the Group) such that it could continue to be of community value whoever was its owner.

The fact that the moratorium under section 95 of the Act, if a building is listed, provides that the community group has the opportunity to purchase the land or building is an independent question to whether a building has community value under section 88(1)(b). The FTT conflated the two questions. There could continue to be non-ancillary use of the pub without a change of ownership. The FTT did not address this when deciding the question. It would be sufficient to satisfy section 88(1)(b) if the FTT was satisfied that there could continue to be social wellbeing and social interest core uses for the Pub even if it continued to be owned by PML (which was the most likely factual position given the lack of the evidence that PML was going to sell the Pub).

Further and in any event, there was evidence as set out above that a majority of the members had the intention or purpose to purchase the Pub if needs be.

For all these reasons the FTT’s decision must be set aside because of material errors of law pursuant to section 12(2)(a) of the Tribunal Courts and Enforcement Act 2007.

I am satisfied that it is in accordance with the overriding objective of justice and fairness to exercise my jurisdiction under section 12(2)(b)(ii) to remake the decision. This is for two reasons. First, this case is already old – the decision of the Council under challenge is three years old and the decision of the FTT is two years old. Remitting the case would only cause further unnecessary delay. Second, I have all the evidence and submissions from all parties that were before the FTT which decided the case on the papers. In addition, I have the further written and oral submissions on behalf of the Appellant and Group which were made to the Upper Tribunal. I therefore have all the relevant material needed to decide the case and both Respondents had repeated opportunities to make submissions or representations to the Upper Tribunal in response to the Appellant’s grounds of appeal and the grant of permission and have lodged nothing further.

I will therefore consider whether the Council’s review decision of 18 April 2019 to list the Pub as an asset of community value was lawful.

I begin by considering section 88(1)(a)&(b) of the Act – whether the opinion of the Council was in error that:

I begin with the observation of Judge Levenson in Admiral Taverns Ltd v Cheshire West & Chester Council and Farndon Parish Council (ATL v CW & CC and FPC) [2018] UKUT 15 (AAC) at [29] when considering the ancillary / non ancillary uses of pubs and whether they further the social wellbeing or social interests of the local community:

Nonetheless, there was sufficient evidence as to the non-ancillary uses of the Pub in this case. I am satisfied that it was rational for the Council to decide that they furthered the social wellbeing or social interests of the community for the purpose of section 88(1)(a) as defined in 88(6) of the Act. Therefore, the Council’s decision was not made in error of law (it was a rational conclusion that a properly directed decision maker could have come to on the evidence made available to it). To the extent that I am required to consider the matter afresh (that I have a full-merits rather than a supervisory jurisdiction), I am satisfied of the same.

Simon Bull, then assistant borough solicitor and Deputy Monitoring Officer at the Council, provided a witness statement dated 18 June 2019 in respect of the appeal. At paragraph 4 he stated:

Mr Russell and Ms Goodwin-Higson supplemented these points in their oral submissions to me – that the pub was an all age community venue which hosted a number of activities for community including the elderly and vulnerable such as amateur open mic events, an acoustic café and quiz nights. The venue was a meeting place for older people, including those who did not drink alcohol, for watching televised sports. It hosted various church and community events including wakes following funerals etc.

Therefore, I am satisfied that the condition in section 88(1)(a) is and was at the relevant time.

There was no evidence to suggest that the use of the Pub would change whoever was its owner (whether it continued to be owned by PML or by the Group). Indeed, there was evidence before the FTT that the Pub had continued operating in the same way in the time since the listing decision was made on 18 April 2019.

Thus, for the purposes of section 88(1)(b), it was realistic to think these non-ancillary uses which would further the social interests or wellbeing would continue in the future. Therefore, I am satisfied that section 88(1)(b) was satisfied.

To the extent I have a full merits jurisdiction over the same questions, I make a finding that both section 88 of the Act was satisfied on the balance of probabilities.

In the proceedings before the FTT, PML had taken an objection that the Group had not complied with Section 89 of the Act and Regulation 6 such that the nomination of the Pub for the list was invalid. It was submitted that there was no evidence supplied by the Group to the Council that Regulation 6(d) was satisfied – that the Group was eligible to make a community nomination. This was on the basis that there was no evidence whatsoever whether the nominator (the Supporters or the Group) either held or had collected any funds and did not distribute any surplus it makes to its members. Such evidence was neither either requested by the Council or provided by the Group. PML submitted that the regulation 5(1)(c)(ii) requirement could not be waved.

I address the regulation 5(1)(c)(ii) requirement below. In short, I find that the Supporters or Group, as nominator, was eligible because it satisfied the requirements of regulations 4 and 5. The same evidence that was available to me was available to the Council (ie. the Membership forms and the draft unadopted Constitution) such that it provided sufficient evidence that it was eligible to be a nominator.

I am satisfied, and it was not in dispute, that Regulations 4 (1) (a) (i) and (b)(i) and Regulation 5(1)(c)(ii) were satisfied – the Supporters / Group had a local connection in that its activities were wholly or partly concerned with the Council’s area and that any surplus it made is wholly or partly applied for the benefit of the Council’s area. This was because there was no evidence that it made or was to make any surplus, that it had collected any funds, or even if it did collect funds and make a surplus, that this would be distributed to members rather than in the purchase of the Pub.

I am fortified in this conclusion by paragraph 2 of Mr Bull’s witness statement which states:

For these reasons, I am satisfied that the Group satisfied Regulation 5(1)(c)(ii) as it did not distribute any surplus to its members – it had no surplus nor rules suggesting that it would. Regulation 5(1)(c)(i) – was not in dispute – the Supporters / Group clearly had more than 21 members.

Therefore, for the reasons set out above when finding that the FTT erred in law, I am also satisfied that Regulation 5(1) & (1)(c) was satisfied and that the Group (and its predecessor the Supporters) was a community body and an unincorporated body. I am satisfied the Group shared a unanimous purpose of all members (as described on the membership form) to nominate the Pub to be listed as an asset of community value. To the extent required, I also find that each of the members of the Group also shared and held the three aims of the Group as set out in the Constitution.

I accept the Group’s submissions – they all had a core and shared (unanimous) motive to nominate the PUB as ACV and to protect its community use.

I am further satisfied that the FTT erred in deciding that fact that prominent members may have been opposed to planning permission being granted undermined the Group’s shared or common purpose. The shared purpose was to preserve the Pub remaining in operation to further its community functions.

The evidence from the Council made clear that it understood the difference between the planning permission application and the nomination of the Pub as an ACV. This is supported by M Bull’s evidence at paragraph 5 of his statement:

Mr Bull therefore gave written evidence that he considered separately, or severed, the relevant part of the Pub which was to be listed, ignoring that part in respect of which a planning permission application had been made. Therefore, unlike the FTT, I give weight to Mr Bull’s evidence in this respect.

Further and importantly, I give weight to the fact that planning permission had already been granted in respect of the rear of the Pub by the time the appeal was heard by the FTT. Therefore, I find that this supports the evidence that the purpose of pursuing the listing of the ACV was independent of and primary to any planning objection.

Notwithstanding the grant of planning permission, the Group had still sought to list the Pub as ACV and oppose PML’s appeal because the purpose of the Group was preservation of the Pub as a community venue. Therefore, even if some members of the Group had previously been interested in opposing planning permission, this was not their primary purpose in nominating it as an ACV but was only additional to the primary and unanimous purpose of the Group.

Even if the correspondence relied on by the FTT was not taken out of context at [18]-[20] of its decision, the fact that three members of the group had previously expressed an intention to oppose planning permission does not detract from shared common purpose of the Group.

Likewise, even if there was a variety of view as to whether to purchase the pub, there was no such variety as to the common purpose of listing it as an ACV. At [18]-[20] of its decision the FTT likewise erred in relying on various views expressed in correspondence from the three prominent members as to whether or not they wished to purchase the pub. They did not undermine the Group’s common and core purpose.

In any event, as I have also addressed above, there was sufficient evidence for me to find that a majority of the Group intended to support purchase of the Pub if needs be. The FTT erred in deciding at [18] that it was never the intention to buy the property. Indeed, all three prominent members, including Mrs Fenner filled in application forms stating they were willing to contribute financially.

As set out above, I am satisfied that a majority of the members of the Group had expressed such a will: 52% of members had indicated that they would support making a financial contribution to buy the pub. The Group’s Constitution would have permitted the members of the Group to decide to purchase the pub on that basis. In order to make decisions at an AGM or Special Meeting the Constitution only required a bare majority of those present to pass a vote.

Further and in any event, even if there were insufficient members of the Group intending to purchase the pub, that there was no unanimity nor majority of the membership in favour of the proposal at the time of nomination, this does not detract from the shared purpose of the Group in preserving it as an ACV. The Group was not required under the legislation to prove that it would in fact be able to purchase the Pub as an asset at the time the nomination was made. The effect of listing as an ACV would simply be that the Group would have the opportunity under section 95 of the Act to put in a bid to purchase to the Pub during the moratorium period if a sale was proposed by PML.

In summary, I agree with the conclusions of Mr Bull, for the Council, that the statutory conditions to list the Pub as an ACV were satisfied. As he stated in his witness statement at paragraph 7:

For the reasons set out above, I am satisfied that the FTT erred in law in a material manner in the decision it came to on 28 January 2020. I therefore allow the appeal and set aside the FTT’s decision allowing the appeal against the Council’s decision to list the Pub as an Asset of Community Value.

I remake the decision. I dismiss the appeal of PML against the decision of the Council dated 18 April 2019 to list the building and land constituting the Rose and Crown Pub, Sandhurst, as an asset of community value for the purposes of section 89(1) of the Localism Act 2011 and Regulation 2 of the Assets of Community Value (England) Regulations 2012 (“the Regulations”). I confirm the decision of the Council to include the Pub in the list of assets of community value.

In light of this decision, I invite all parties to address me on the Council’s application that PML re-pay it the sum of £4,000 if the Pub were re-listed and its original decision of 18 April 2019 confirmed.

The Council submits it paid £4,000 in compensation to PML’s solicitors arising from PML’s successful appeal to the FTT. The Council suggested it paid the sum to Freeth Solicitors, who acted for PML, pursuant to the compensation provisions contained within Regulation 14 of the Regulations.

Regulation 14(3)(b)(i) allows an owner of the land (in this case, PML) to claim from the local authority reasonable legal expenses incurred in a successful appeal to the First-Tier Tribunal against the responsible authority’s decision to list the land.

My preliminary view is that as the FTT’s decision is set aside and now re-made and PML’s appeal against the Council’s listing decision is now rendered unsuccessful, then PML should return the sums paid by the Council because Regulation 14(3)(b)(i) no longer applies. In setting aside the FTT’s decision, PML would no longer be entitled to compensation under Regulation 14(3)(b)(i).

However, I invite submissions as to my jurisdiction and discretion to make any such direction.

There is no power under Regulations 14-17 for the Council to review nor appeal to the FTT regarding the compensation payment it decided to make (there is only jurisdiction for the owner of land to challenge any compensation decision). Likewise, there was no decision by the FTT awarding PML compensation under Regulation 14 nor costs in the appeal proceedings (which direction could only be made if a party had acted unreasonably for the purposes of Rule 10 of The Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009. Neither is any appeal against such decisions before me.

My powers to award costs in relation to the Upper Tribunal appeal proceedings are circumscribed under Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (and mainly apply where a party has behaved unreasonably in bringing, defending or conducting proceedings before the Upper Tribunal).

Therefore, the parties are therefore directed to address me in writing within 28 days of receipt of this decision on whether I have any jurisdiction to make any costs award or a consequential direction to this decision that would reverse the payment of compensation made by the Council given that I am now upholding the Council’s decision to list the Pub as an ACV (and effectively dismissing PML’s appeal to the FTT).