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You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> Gibson v Babergh District Council & Anor [2015] UKFTT CR_2014_0019 (GRC) (08 May 2015) URL: https://www.bailii.org/uk/cases/UKFTT/GRC/2015/CR-2014-0019.html Cite as: [2015] UKFTT CR_2014_19 (GRC), [2015] UKFTT CR_2014_0019 (GRC) |
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Tribunal Reference: |
CR/2014/0019 |
Appellant: |
Carol
![]() |
Respondent: |
|
Second Respondent: |
Thorpe
Morieux Parish |
Judge: |
Peter Lane |
1. The
Localism Act 2011 requires local authorities to keep a list of assets (meaning
buildings or other land) which are of community value.
Once an asset is placed
on the list it will usually remain there for five years. The effect of 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
“the moratorium”, will allow the community group to come up with an alternative
proposal – although, at the end of the moratorium, it is entirely up to the
owner whether a 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.
2. Section 88 of the 2011 Act provides as follows:-
“ 88 Land of community value
(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. This
appeal concerns land and buildings comprising the Bull Inn, Thorpe Morieux, Suffolk. It appears that the Bull has functioned as the village
pub since at least the
1860s. Around the turn of the 19th and 20th centuries,
it was run partly as a pub and partly as a
village
grocery store. In more
recent times, the Bull (in common with many other such establishments) has had
a more chequered history. It appears to have been closed for a time before Mr
and Mrs Clayton purchased it in 1993. Miss
Gibson
purchased the Bull in
October 2007 from the Claytons. According to the decision of a planning
inspector dated 2 May 2002, the pub business at the Bull was “fairly quiet in the
week because of the Inn’s isolated location, but at the weekend, when the
restaurant side of the business is particularly busy, four staff are normally
required to cook and to serve”. The inspector decided to allow the appeal of
the Claytons against the refusal of the local planning authority to permit the
erection of a dwelling next to the Bull, subject to a condition limiting its
use to a person solely or mainly employed or last employed in the business
conducted at the Bull. The purpose of the planning application had been to
reduce overheads by erecting a dwelling that could house members of the family
running the Bull, who would assist in that activity.
4. Local residents spoke in favour of the proposed development:-
“ It is clear from the representations made, including a petition of about 165 signatures, that there is overwhelming local support for the proposed development. In the absence of any shops in the neighbourhood, the Bull Inn provides the only retail outlet in the locality and has become a focal point and meeting place for the local community. Residents are rightly concerned that if the appeal is not allowed, it might again lead to the closure of the public house and the likely permanent loss of the hub of this rural area.”
5. Miss
Gibson
paid £616,000 to acquire the Bull Inn and the adjacent two bedroom
dwelling, which had been constructed pursuant to the grant of planning
permission. She and her niece initially lived in the Bull, whilst Miss
Gibson’s
parents occupied the two bedroom dwelling (“the Old Orchard”). Miss
Gibson’s
parents subsequently died. Her case is that she was confident she
could make a commercial success of the Bull, investing a considerable sum in
the property. However, by February 2009 she had concluded that it was
necessary to close the pub. Subsequently, however, she reopened the Bull,
whilst taking a day time job.
6. In
March 2009 Miss Gibson
instructed a firm specialising in the sale of pubs to
seek a purchaser for it as a going concern. The initial asking price was
£575,000. After five months Miss
Gibson
wanted to increase the sale price.
The specialist firm recommended seeking the lifting of the planning condition
relating to the Old Orchard. An initial planning application was refused but
in August 2012 a planning inspector allowed Miss
Gibson’s
appeal against a
second refusal by the local planning authority.
7. The
inspector noted that Miss Gibson
was trading at a “significant loss”, which was
exacerbated by the price she had paid for the premises and her mortgage
repayments. Miss
Gibson
told the inspector that her intention was to
reinvest capital raised by the sale of the Old Orchard in the business at the
Bull Inn. The inspector noted that there could be “no guarantee” that this would
occur. The inspector recognised the
“strong local support, from both sides in
this appeal, for the retention of the Bull Inn as an important community
facility. There can be no certainty in the situation, but I have come to the
view
that the Bull Inn is at greater risk with condition 5 attached to the
planning permission than if the condition were to be removed”.
8. On 31
May 2013 Miss Gibson
purported to effect a change of use of the Bull Inn to a
bric-a-brac shop. In August 2013
Babergh
District
Council
(“the
District
Council”)
placed the Bull Inn on its list of assets of community
value.
Miss
Gibson
requested a review, contending that the use of the Bull Inn was now a
class A1 shop; that a change of use to A4 public house would require planning
permission; and that despite the history of use as such, a change of use back
to a pub would not be consistent with the
District
Council’s
policies on
sustainability.
9.
Following an oral review hearing on 29 January 2014 the District
Council
concluded that the Bull Inn should not be listed. The review concluded that
there was no indication of how any future owner or tenant, whether a community
group or private individual, could make the business a going concern.
10.
However, on 7 July 2014 the District
Council
informed Miss
Gibson
that it had
again listed the Bull Inn as an asset of community
value.
Miss
Gibson
requested a review, which took place on 14 October 2014. The result of that
review was to maintain the Bull Inn on the list. The reviewer found that the
nominators (Thorpe Morieux Parish
Council)
had given an indication as to how
they intended to run the Bull and were aware that significant fundraising and
local support would be needed in order to achieve any agreed purchase price.
In this regard, I note that a group of local residents had suggested that a
reasonable price for the business would be £200,000 and that £50,000 would be
needed for renovations. The
District
Council
considered that the nominators
were actively looking to raise money to purchase the asset and run the Bull as
a pub. In all the circumstances, the
District
Council
decided to maintain the
Bull on the list.
11. Miss
Gibson
appealed against that decision to the First Tier Tribunal. Each of the
parties to the appeal has consented to its being determined without a hearing.
I consider that, in the circumstances, the issues in the appeal can be properly
determined without a hearing.
12. Miss Gibson’s
case is that it is not realistic to think that there is a time in the next five
years when there could be a non-ancillary use of the Bull Inn that would
further the social wellbeing or social interests of the local community. In
essence, the Bull has experienced difficult times over the past twenty years,
at least. In the early 1990s it had been closed as a business. The reason why
the property now known as the Old Orchard was constructed is indicative of the
pub’s commercial fragility during the ownership of Mr and Mrs Clayton. Miss
Gibson’s
accounts, submitted in connection with the reviews, demonstrate
serious financial losses during her period running the pub. The
village
comprises only some 250 residents, including children, which is insufficient to
support a public house that, owing to its location, has no passing trade. Miss
Gibson
prays in aid, in particular, what was said by the planning inspector in
the 2012 appeal decision, lifting the condition on who might occupy the Old
Orchard. The
village
hall was refurbished in early 2011 and provides a meeting
place and focal point for the
village,
as well as competing with the pub. Miss
Gibson
fought hard to keep the Bull Inn running as a pub, even taking a full-time
day job whilst opening the Bull in the evenings and at weekends.
13. The
District
Council
points to the creation of the “Friends of Thorpe Morieux Bull”,
who were able in September 2014 to make an offer of £200,000 for the property.
The
District
Council
points out that it is not a prerequisite for a community
group to have a business plan or sufficient means to purchase the asset, in
order for listing to occur. The test of what is realistic permits of more than
one outcome.
14. The
Parish Council
gives details of the clubs and other bodies that used the Bull
Inn in the recent past. The Parish
Council
asserts that Miss
Gibson
failed to
invest in infrastructure and maintenance, leaving the Bull Inn looking shabby
and uninviting. She did not reside on the premises for the last few years of
trading and made unwise business decisions, such as instigating a “fish and
chip night” on the same night that a mobile chip
van
with an established and
loyal clientele traded in the
village.
So far as the
village
hall is
concerned, the Parish
Council
submits that it was refurbished because its
ceiling was falling down. No new facility or capacity had been added. The
village
hall does not have a licence to serve alcohol. Over the past years, there
has been no change in the number or size of events taking place in the hall.
In fact, the Parish
Council
contends that the
village
hall contributes to the
trade of the Bull Inn, since, for example, people meeting in the hall would typically
reconvene in the pub “for a few pints”.
15. In reaching a decision in this appeal, I have had regard to all the written evidence and submissions, including those not specifically mentioned by me.
16. Two
preliminary matters need to be mentioned. First, there is no legal impediment
on the District
Council
deciding to list the Bull Inn only shortly after it had
decided, following a review, that the criteria for listing had not been met.
The significance of these events lies only in the fact that Miss
Gibson
is
permitted, in these proceedings, to point to the earlier decision as one that
should, in effect, be followed by the Tribunal. Secondly, Miss
Gibson
raises
an issue regarding the person who signed the letter of 7 July 2014 informing
her that the
District
Council
had listed the Bull Inn. The signatory had, in
fact, put her name to a petition in support of the listing nomination. This
issue is not one which concerns the Tribunal. I am concerned with whether, on
the evidence, the criteria for listing set out in section 88 of the 2011 Act
are met.
17. There
is, I find, ample reliable evidence to show that the requirement of section
88(2)(a) is met in the case of the Bull Inn. Until its last closure as a pub
by Miss Gibson
in 2013, the Bull Inn plainly furthered the social well being or
interests of the local community. Not only was the pub used by locals for
eating and/or drinking (albeit that their numbers were small);
various
clubs
and other bodies used it. I accept what the Parish
Council
has to say about
the non-competing nature of the
village
hall.
18. The issue, accordingly, is whether section 88(2)(b) is satisfied; namely, whether it is realistic to think that there is a time in the next five years when there could be a non-ancillary use that would further the social wellbeing or social interests. In this regard, it is important to emphasise that the question is not whether such a use is more likely than not to occur. Rather, the question is whether such a use is realistic, in the sense of not being “fanciful”, even though that use might not be the most likely scenario.
19. I have
had full regard to Miss Gibson’s
evidence and submissions regarding the
commercial difficulties she encountered in running the Bull Inn. I do not,
however, find as a fact that her experience is such as to show (whether or not
with other evidence) that no other individual or group could realistically run
the Bull Inn as a pub. Miss
Gibson’s
grounds of appeal record that, on
purchasing the Bull Inn in October 2007, she was “confident that she would be
able to make a success of the pub”. I consider the evidence discloses that,
regrettably, the problems in caring for her elderly parents and her need to
take a daytime job in order to repay her bank, hampered her efforts to run the
pub business. For the last few years Miss
Gibson
has not, it seems, resided at
the Bull Inn.
20. The
grounds of appeal state that Miss Gibson
has “had over 30 years of experience
of pub work at the time of purchase and had also worked in the catering
industry on the purchasing side”. The Parish
Council,
however, points out that
this was not mentioned in Miss
Gibson’s
introductory letter to the
village,
of
which a photocopy has been provided. What is said there is that Miss
Gibson
worked as general manager for a bus cleaning company in central London and bought the Bull Inn as she wanted to live closer to her parents.
21. At all
events, looking at the evidence overall, I am not satisfied that Miss Gibson’s
own experiences compel the conclusion that it is no more than fanciful to think
that anyone else could run the Bull Inn successfully, whether or not on a
profit-making basis.
22. The
evidence before the District
Council
in connection with the second listing of
the Bull Inn (and which is before me) demonstrates that there is not only a
strong local wish to see the Bull Inn re-open but also that this could be
realistically achieved within the statutory timescale. This is demonstrated by
the existence of the Friends of Thorpe Morieux Bull and the offer of £200,000
for the property (as well as an estimate of £50,000 for repairs). The
first of these figures is criticised by Miss
Gibson
as unrealistically low,
whilst the second is regarded as purely arbitrary.
23. So far
as the second figure is concerned, no alternative has been put forward by Miss Gibson;
or any explanation as to why no such sum would need to be expended. So far as
the £200,000 is concerned, the fact that Miss
Gibson
paid much more than this
in October 2007 (albeit that her purchase included the Old Orchard) is in no
sense determinative. This is particularly so when one turns to consider the
planning position.
24. I
accept the evidence of the respondent that the creation of the so-called
bric-a-brac shop in the Bull Inn appears to have involved no real change to the
property and that the shop’s alleged opening hours are problematic. Indeed, in
2014, Miss Gibson
applied to the
District
Council
for planning permission for a
“change of use” of the Bull Inn from a “bric-a-brac shop with living accommodation
to a dwelling”. On 30 January 2015 that application was refused. The refusal
noted that a grant of permission would not be in accordance with relevant
plans. The applicant was advised that:-
“ The application asserts that the premises are now Class A1 use, however, on the basis of the evidence before it the Local Planning Authority is not satisfied that a material change of use has taken place from use as a public house within Class A4. Accordingly the LPA has assessed the application as a change of use from a public house or shop.”
The present planning position is,
accordingly, that the Bull Inn is still seen very
much as a pub; a factor that
has relevance for its future use as such and for its likely market
value.
25.
Against this background, I find that it is not unrealistic or fanciful to
hypothesise a situation within the next five years, whereby Miss Gibson
decides
to sell the Bull Inn as a pub. The fact that an offer of £200,000 could be
made demonstrates that there is significant local interest and ability to see
the continuation of the pub. Miss
Gibson
appears to consider that the
financial offer was merely from a few individuals. That does not, however,
mean that, if the pub were to reopen, section 88(2)(b) would not be satisfied.
Indeed, one of the realistic possibilities is that Miss
Gibson herself might
decide to reopen the pub (as she has in the past). I also note the evidence
regarding efforts made by the local community to research ways of community funding
the acquisition of the Bull Inn. These efforts strike me as having been
genuinely undertaken and are indicative of potential ability to raise
additional funds, for example, by the issue of shares (as in the case of the
King’s Arms, Shouldham).
26. This appeal is accordingly dismissed.
|
Peter Lane Chamber President |
Dated |
8 May 2015 |