Forestscape Limited v Kings Lynn & West Norfolk Borough Council [2025] UKFTT 1027 (GRC)

[2025] UKFTT 01027 (GRC)

Case Reference: FT/SL/2025/0002

First-tier Tribunal

(General Regulatory Chamber)

Hearing Heard on: 26 August 2025

Date 28 August 2025

Standards & Licensing

Heard by Cloud Video Platform

Before

JUDGE DIXON

JUDGE HARRIS

Between

Forestscape limitedAppellant

KINGS LYNN & WEST NORFOLK BOROUGH COUNCILRespondent

Colin Pennington for Appellant

Tony Harris, NP Law for Respondent

Decision: The appeal is allowed. The land at Pentney Woods which is the subject of the appeal is not capable of being land which is of community value and therefore cannot be listed as an Asset of Community Value.

REASONS

Background to the appeal

[1]This appeal concerns a decision made by Kings Lynn & West Norfolk Borough Council (the “Council”) on 15 November 2024 to designate Pentney Woods, Common Road, Pentney, PE32 1LE (“Pentney Woods”) as an Asset of Community Value (“ACV”).

[2]Pentney Woods (also known as Entrylane Carr) is a parcel of land of approximately 25 acres comprising woodland, grassland, heathland and a shallow stream. It is situated opposite West Bilney Woods (owned by the Forestry Commission) and adjacent to Common Road and the car park at Pentney Lakes Caravan and Leisure Park (“Pentney Lakes”).

[3]The appeal is brought by Forestscape Limited (“Forestscape”) which is the owner of the land in question at Pentney Woods. Forestscape wishes to set aside the decision to designate Pentney Woods as an ACV and remove the corresponding order on the land.

[4]On 23 February 2024, the Council validated an ACV nomination for Pentley Woods from East Winch & West Bilney Parish Council (“the Parish Council”). On 10 April 2024, the Council decided to list Pentney Woods as an ACV (the “Original Decision”).

[5]On 4 June 2024, Forestscape requested a review of the Original Decision by way of oral hearing, which took place on 8 November 2024. Following this hearing, the Council issued a Decision Notice on 15 November 2024 confirming its decision that Pentney Woods should remain an ACV. Abbreviations used in this decision “the Act” means the Localism Act 2011 “the 1960 Act” means the Caravan Sites and Control of Development Act 1960 “the 1968 Act” means the Caravan Sites Act 1968 “ACV” means Asset of Community Value “the Council” means Kings Lynn & West Norfolk Borough Council, the Respondent “Decision Notice” or “DN” means the Decision Notice issued by the Council on 15 November 2024 “Forestscape” means Forestscape Limited, the Appellant “the Original Decision” means the decision made by the Council on 10 April 2024 “the Parish Council” means East Winch & West Bilney Parish Council “Pentney Lakes” means Pentney Lakes Caravan and Leisure Park “Pentney Woods” means the land designated as an ACV at Common Road, Pentney, PE32 1LE, title number NK507443 “the Regulations” means the Assets of Community Value (England) Regulations 2012 The appeal

[6]Forestscape appealed the Decision Notice by way of form GRC1 dated 10 December 2024. In its Grounds of Appeal, it stated by way of summary:

“We do not believe the evidence was considered in its entirety or given the full analysis and weight it deserved. We believe the 2 qualifying use tests in Section 88 1&2 of the Localism Act 2011 were not and are not satisfied. We will also show that the site has been used for caravans and will be used for caravan use in the future.”

[7]Forestscape made the following points:a. The site is the site is a privately owned area of woodland with no public right of way, which has only been used in the recent past by way of physical criminal damage to site security fencing and unauthorised trespass, all without permission following the erection of security fencing in 2022;

b. Prior to 2022 no permission was given for anyone to enter the woodlands;

c. The woodlands are now subject to a felling licence, planning permission for a forestry welfare building associated with the felling licence. The site will continue to be subject to works associated with the felling licence of which gives cause for health and safety risks to the public and Forestscape’s site public liability insurance does not permit public access;

d. The future use of the site will be as a caravan site. At the time of making its appeal, Forestscape was appealing a decision not to grant planning permission for this, but it has previously been used as a caravan site and Forestscape had a provisional caravan site licence at the time of submitting its appeal.

[8]Forestscape argued that not all of its evidence was taken into account or given sufficient consideration in its request for a review by the Council during the review request.

[9]Forestscape also took issue with the Council’s reliance on the case of Banner Homes Ltd v St Albans City and District Council

[2018] EWCA Civ 1187

) as authority for the fact that the test for an ACV does not require use to be “lawful” and thus that whether access is permitted by the owner is not determinative. It argued that the current case could be distinguished from Banner Homes because there is no public access across the site, there has never been permission to access the woods and Forestscape has a felling licence which Banner Homes did not.

[10]Forestscape argued that the Parish Council’s evidence used declarations that do not comply with current planning approvals, licences or good practice, such as condoning criminal acts to access the site.

The Council’s Response

[11]The Council filed a Response dated 11 February 2025. It made the following points:a. The nomination was by the Parish Council for the area in which Pentney Woods is located and therefore meets the criteria within Regulation 5 of the ACV Regs, and s.89(2)(b)(i) of the Act;

b. The nomination contains a plan and sufficient information to identify the owners of Pentney Woods and those who could be said to have an interest and therefore meets the criteria within Regulation 6 of the ACV Regs;

c. Pentney Woods has a clear primary use as amenity land. The nomination form contains 41 signatures from individuals confirming that they have used Pentney Woods for walking and amenity purposes. Additionally, Pentney Woods has been used for birdwatching, bat detecting and photography due to Pentney Woods adjoining a County Wildlife Site. As a result, the primary current use of the land furthers the social well-being of the local community in accordance with s.88(1)(a) of the Act;

d. The nomination form states that Pentney Woods is trying to limit access by erecting a private fence and gate in order to establish a development of leasehold holiday homes. There is a clear intention to limit public access and thereby public amenity does exist. When read as a whole, the nomination contains overwhelming evidence of community use of the land which shows no sign of abating in the short-term;

e. The site is not used as a caravan site. In fact, Forestscape made an application for planning permission which was refused and admits this was the case.

Forestscape’s reply

[12]Forestscape submitted a reply to the Response, in which it reiterated its previous arguments and made the following points:a. the nomination form and the evidence from individuals do not show that Pentney woods is used in the manner indicated. The plan and map show use of the adjacent West Bilney Woods, 280 acres of publicly accessible Forestry commission woodland. Pentney woods is used as an access route to access West Bilney woods. The ACV application has been used in an underhand manner to try and gain a right of way which has been refused by Norfolk County Council.

b. The planning application which was refused is currently under appeal.

c. The restriction of access is due to insurance purposes and health and safety.

d. There is no possibility of future access.

[13]Forestscape argues that the ACV tests are not met because:a. Entry to the site is not peaceful. Access was through illegal trespass and criminal damage to a fence installed 2 years and 5 months before the ACV application;

b. There is no right of way over the site;

c. There is no potential future use;

d. The Council’s planning department has provided a planning report stating approval for caravan use.; and

e. a certificate for caravan use has been issued

Procedural matters relating to the determination of this appeal

[14]The hearing was held by Cloud Video Platform (CVP) and all parties agreed to this mode of hearing being used.

[15]The Tribunal had a joint bundle comprising 116 pages and a separate bundle from Forestscape comprising 21 pages.

[16]The Council called one witness, James Arrandale, but he did not give evidence as his witness statement was agreed between the parties.

Legal Framework

[17]The relevant legislation governing ACVs is Localism Act 2011 (the “Act”) Section 87 to 108, and the Assets of Community Value (England) Regulations 2012 (the “Regulations”). The Act

[18]Section 87 of the Act imposes an obligation on local authorities to maintain a list of land in its area that is land of community value, or in other words, ACVs.

[19]Section 88 of the Act specifies the criteria which must be met for “a building or other land” to be listed as an ACV. There are two possible routes to meeting this criterion set out in subsections (1) and (2) below:

“(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.” (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. (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.”

[20]Section 88(6) confirms that for these purposes “social interests” includes each of the following: cultural interests, recreational interests and sporting interests.

[21]Section 89 of the Act states that land in the local authority’s area may be included by a local authority in its list of ACVs in response to a community nomination. S.89(2)(b)(i) provides that this nomination can be made by a parish council. A parish council can also be a “voluntary or community body” for the purposes of section 89(2)(b)(iii) under Regulation 5(1)(b) of the Regulations if the land in question is not within their area.

[22]Section 92 of the Act provides a mechanism for reviewing the decisions of local authorities to include land on the list of ACV. The Regulations

[23]Schedule 1 of the Regulations includes a list of land which cannot be listed as an ACV. The issues

[24]The principal issue which the parties had identified before the hearing was whether or not the tests for past and future use in section 88(1) and/or (2) were met. During the course of the hearing, both parties made submissions on this. Mr Pennington accepted that people have been using Pentney Woods for a number of years for dog-walking, bird watching and other activities which amounted to use for social wellbeing and interest.

[25]However, it became apparent during the course of the hearing that there was a prior issue which needed to be determined which was whether the land in question was capable of being listed as an ACV under Schedule 1 of the Regulations.

Whether Pentney Woods can be listed as an ACV

[26]Mr Pennington, on behalf of Forestscape, said that on 21 August 2025, the Respondent had given planning permission (following an appeal of a decision not to grant it) for up to 5 Caravan Act compliant lodges at Pentney Woods. The planning permission was subject to around 20 pre-commencement conditions including matters such as tree works, details of infrastructure and site security. Mr Pennington said that Forestscape has instructed a planning consultant and intends to start work on the infrastructure in early 2026 once the pre-commencement conditions are met and removed.

[27]Mr Pennington highlighted a letter from Freedom Camping dated 25 July 2023 (Respondent’s bundle page 96) which agreed in principle to issue a certificate of exemption to operate a caravan and camping site under paragraph 4 of the Caravan Sites and Control of Development Act 1960 (the “1960 Act”) and section 269 of the Public Health Act 1936 for up to 5 caravan equivalent movable dwellings and 30 tents. The letter stated that in order to proceed with a certificate of exemption, certain conditions needed to be met, including evidence of water, sanitation and fire prevention facilities. Mr Pennington accepted that Forestscape had not complied with the conditions and obtained the certificate of exemption from Freedom Camping but relied on the letter as evidence that this was Forestscape’s plan for the site even before the ACV nomination was made by the Parish Council. He also relied on the fact that Forestscape had applied for planning permission for a caravan site, even though this was until recently unsuccessful.

[28]Mr Pennington explained that the Caravan Sites Act 1968 (the “1968 Act”) provides clarity on the sizing of movable dwellings which count as caravans for the purposes of the 1960 Act. Mr Pennington's evidence, which was not contradicted by the Respondent, is that the “Caravan Act compliant lodges” he intends to install at Pentney Woods fall within this definition.

[29]Mr Harris, for the Respondent, argued that the point above had not been properly pleaded by Forestscape and so that the Respondent had not had an appropriate opportunity to consider it.

[30]The Respondent argued that the site at Pentney Woods does not have a licence as a caravan site, which is what is required to be exempt from listing as an ACV under Schedule 1 paragraph 3 of the Regulations.

[31]The Respondent accepted during the course of the hearing that the intention of Forestscape was always to have a caravan site at Pentney Woods, and that this was the case before the ACV nomination was accepted.

Discussion and conclusions

[32]Our starting point is Schedule 1 of the Regulations, which is a list of land which is deemed to be not of community value and therefore may not be listed. This includes at paragraph 3:

“Land in respect of which a site licence is required under Part 1 of the 1960 Act, or would be so required if paragraphs 1, 4, 5 and 10 to 11A of Schedule 1 to that Act were omitted.”

[33]Section 1(1) of the 1960 Act provides that no occupier of land shall cause or permit any part of the land to be used as a caravan site unless he is the holder of a site licence. Under section 2, no site licence is required for the use of the land as a caravan site in any of the circumstances set out in Schedule 1 to that Act. These circumstances include:a. Use by a person travelling with a caravan for one or two nights (paragraph 2);

b. Use of holdings of five acres or more in certain circumstances (paragraph 3);

c. Meetings organised by exempted organisations (paragraph 6);

d. Agricultural and forestry workers accommodation (paragraphs 7 and 8); and

e. Building and engineering sites (paragraph 9);

[34]For the purposes of the Regulations, we can disregard the following paragraphs which means that a licence would be required even if the conditions for these exemptions were met, none of which are relevant here:a. Use within curtilage of a dwelling house (paragraph 1);

b. Sites occupied and supervised by organisations who hold a ministerial certificate of exemption for the encouragement or promotion of recreational activity (paragraph 4);

c. Sites approved by exempted organisations (paragraph 5);

d. Travelling showmen (paragraph 10);

e. Sites occupied by the local authority in whose area the land is situated (paragraph 11); and

f. Gypsy sites occupied by county councils or regional councils (paragraph 11A).

[35]“Caravan site” is defined as “land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed.” What is meant by “caravan” is clarified by the 1968 Act section 13 to include twin-unit movable dwellings that meet certain size requirements.

[36]We accept that none of the exemptions in Schedule 1 of the 1960 Act apply here, so a licence issued by the Local Authority is required to use the land at Pentney Woods as a caravan site.

[37]We accept that it was at all material times Mr Pennington’s intention that Forestscape should operate a caravan site on the land at Pentney Woods. In particular, we note that this was his settled intention before the ACV nomination was made, and we consider this is supported by the letter from Freedom Camping giving agreement in principle to an exemption from the 1960 Act. We consider that the recent grant of planning permission in relation to Pentney Woods reinforces this position, as now Forestscape has both planning permission for a caravan site and agreement in principle to exemption.

[38]Returning to the Regulations, we are satisfied that the land in question at Pentney Woods is land in respect of which a site licence is required under Schedule 1 of the 1960 Act. The fact that no such licence is currently held does not change this position, because the Regulations refer to a licence being required for the use of the land, not to a licence being held.

[39]Accordingly, we find the land in question at Pentney Woods cannot be of community value and listed as an ACV. Because it cannot be listed as an ACV, we do not need to go on to consider whether or not the tests in section 88(1) and (2) of the Localism Act 2011 for listing are met.

[40]For these reasons we allow this appeal.