Dragonfly Architectural Services Limited v Brighton & Hove City Council [2025] UKUT 051 (AAC)

“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. 12. 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 Assets of Community Value (England) Regulations 2012. Relevant to the arguments in this appeal is regulation 6: 6. A community nomination must include the following matters— (a) a description of the nominated land including its proposed boundaries; (b) a statement of all the information which the nominator has with regard to— (i) the names of current occupants of the land, and (ii) the names and current or last-known addresses of all those holding a freehold or leasehold estate in the land; (c) the nominator’s reasons for thinking that the responsible authority should conclude that the land is of community value; and (d) evidence that the nominator is eligible to make a community nomination. 13. Regulation 11 gives a right of appeal to the Tribunal. 14. Arising from the parties’ submissions and the legal framework, the Tribunal must decide the following issues: a. Was FMA’s nomination valid? b. Was there a time in the recent past when an actual use of the pub (that was not an ancillary use) furthered the social wellbeing or interests of the local community? c. Is it realistic to think that there is a time in the next five years when there could be non-ancillary use of the pub that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community? 15. If the answer to any of the above is ‘no’, the appeal will be allowed. If the answer to all three is ‘yes’, then the appeal will be dismissed. Was FMA’s nomination valid? 16. In his skeleton argument, Mr Southall puts his case as follows: The nominator failed to provide any relevant and valid supporting information in the COMMUNITY RIGHT TO BID NOMINATION FORM, as required by Section 3 of the form itself. The nominator did not answer the questions regarding how the current or past use of the nominated building furthers the social wellbeing or social interests of the local community, and instead expressed personal fondness for the building's architectural features. Their motivation for the nomination appears to be preventing development and stopping a developer from doing anything to the building, rather than the value of the space as a community asset. Additionally, the applicant mentioned another successful ACV application in the area to illustrate their desire to prevent the conversion of buildings into houses in multiple occupation (HMOs). However, this information does nothing to constitute a reason for the nomination, and it is argued that the council should have recognized the lack of relevant supporting information in the nomination. 17. This, argued Mr Southall at the hearing, means that the nomination does not meet the requirements of regulation 6, there was no valid nomination, and the Council had no power to list the pub as an ACV. Consideration 18. I find that the nomination was valid. First, the regulation requires the nominator’s reasons for thinking that the responsible authority should conclude that the land is of community value. It does not require that those reasons accord in any way to the actual statutory test. If they are the nominator’s reasons then they suffice, even if they are entirely misconceived. It is then for the responsible authority to make its own decision based on such circumstances as it considers relevant. Second, reasons are given in the nomination, as set out at paragraph 5 above. There was argument before me on whether they are included in the right section of the Council’s nomination form, but I agree with Mr Fitzsimons that provided the information is given it does not matter where in any particular form it is found. Nor does the legislation require the use of any particular form in the first place. 19. The answer to this issue is yes, the nomination was valid. Community value in the recent past 20. There is no binding authority on what constitutes the ‘recent past’ for the purpose of s.88(2)(a). Mr Fitzsimons referred to several previous decision by this Tribunal where the term was taken to depend on the circumstances. I agree. That contextual approach means that special account does need to be taken of the consequences arising from the Covid-19 pandemic. Especially with regard to hospitality venues, it was an exceptional interruption of the ability of a community to come together. 21. In its nomination form FMA argued that the Montreal Arms was used in the recent past as: a. An establishment where many local people have socialised, played traditional games and supported each other within the community for many years; and b. A place where members of the community held celebrations, weddings, birthday, wakes and a place for family, friends and neighbours to share stories and exchange neighbourly support and skills. 22. Mr Fitzsimons put this forward as evidence, but even if it can properly be so called then it is entirely unsubstantiated. Mr Walker pointed out in his evidence that the pub has never had (and for structural reasons could never have) a kitchen, making it unlikely that it had hosted such events. Asked by Mr Southall whether he thought that the pub was “a highly valued community space”

"11. Turning to the future condition in Section 88(1)(b) Mr Cameron [representing the Bowls Club] submits that the existing bowls club has no realistic prospect of continuing. He points to the poor state of the buildings and the finances and relies on a report prepared by GVA. This finds that Gullivers is not commercially viable. Mr Cameron submitted that since listing lasts for five years, my starting point in considering whether the future condition was satisfied, should be whether the bowls club could continue in existence for that length of time. 12. I do not accept that the statute requires me to foresee such long-term viability. Indeed, it seems in the very nature of the legislation that it should encompass institutions with an uncertain future. Nor, in my judgment, is commercial viability the test. Community use need not be and often is not commercially profitable. 13. On this issue, I accept the submissions made by Mr Flanagan. Gullivers may be limping along financially but it still keeps going and membership is relatively stable. Of course it is possible that something could go drastically wrong with the buildings and Gullivers would not have the capital to repair them; but that has not happened yet and, in an institution that has lasted for 50 years, it would be wrong to rule out community spirit and philanthropy as resources which might then be drawn on. In any event, should the site cease to be land of community value, Rother would have power to remove it from the list." 31. In Worthy Developments Ltd v Forest of Dean District Council and Anor (CR/2014/0005), Judge Warren dismissed the appeal of a developer, which had bought a former pub known as the "

"17. In respect of the future condition, Worthy Developments Ltd asked me to have regard to their intention to develop the plot to provide two houses. I take that into account although I balance it with the fact that they have not yet obtained the necessary planning permission. I also take into account the remoteness of the public house which must compound the general malaise affecting public houses nationally. 18. The written submissions ask me to consider which was the more likely to happen, that planning permission should be obtained and houses be built, or that the building be revived as a pub? In my judgment, however, to approach the issue in this way is to apply the wrong test. 19. I agree with the council. The future is uncertain. Worthy Developments Ltd may or may not obtain their planning permission. They may or may not sell the land. The Save our Sun Committee may or may not see their plans reach fruition. It remains still a realistic outcome that The Rising Sun might return to use either as a traditional pub or as a pub/shop/community centre as envisaged by the committee. 20. My conclusion in this respect is reinforced by the pledges of support and petitions gathered by our (sic) Save our Sun Committee. It is true that they have not yet made an offer with a firm completion date but their proposals are not fanciful. It is enough that return to use as a pub or some other venture furthering the social wellbeing or interests of the local community be realistic." 29. Lane J held that Judge Warren’s interpretation of “is it realistic to think” was correct, emphasising that the legislation does not require a potential future use to be more likely than not to come into being, in order for it to be realistic.” 30. The Council’s reasoning on this topic, when making its decision, is worth setting out in full: The owner’s representations set out the funding that would be required for a community group to purchase and renovate the property. No information was submitted with the nomination of how any funds to take on the property would be raised. The owner has advised that were the property to be listed as an ACV it is “highly likely it will sit empty for years”. However, it is “not fanciful” to consider that having purchased the property the owner may ultimately not wish to allow it to remain empty. Planning permission to convert the property to residential use may be applied for and granted: alternatively, permission for residential use may not be granted. Policy DM10 of the submission City Plan Part 2, currently at examination stage, gives protection to public houses, stating that planning permission will not be granted for redevelopment / change of use except in certain circumstances; Even where an alternative use can be justified priority will be given to the use of the site for alternative community facilities. Although not adopted policy the LPA is currently giving the policy “significant weight”. Although the owner states that the business failed as a public house, the legislation does not require that the future community use needs to be the same use as the previous use. Moreover, as above, planning policy would give priority to “alternative community facilities” should the use of the property be considered not to be viable/needed. Moreover, in order to satisfy s88(2) the future use does not have to be undertaken following a successful bid by a community interest group. A realistic option may be that if planning permission for residential use were refused that the owner may seek to sell the property. It is possible that a purchaser could be found to continue the use of the property as a public house or some other community facility, possibly with the input of the local community – and as noted above, a FMA member has offered their services and expertise in running a pub and brewery. It is not therefore fanciful to consider that there could be a community use of the property in the next five years. 31. I accept that the case for inclusion is supported by there being a real chance that change of use to residential accommodation will be refused permission, and by priority being given in any event to any community use (whether or not as a pub). I do not accept that the chance of community use is increased by the offer of services by the FMA, whose lack of engagement with this appeal makes it unlikely that their prior activism will turn into future action. Nonetheless, the Council has pointed in its evidence to another pub called ‘The Bevy’ that benefited from community ownership to overcome its unattractive commercial prospects. 32. In opposition to those points, Mr Southall has adduced detailed evidence on the pub’s parlous financial state when it closed, the need for significant renovations and repair before it could reopen, including putting in disabled access and (perhaps) toilets, problems applying for a new premises licence due to the density of local residential dwellings and scarce nearby parking. He has estimated the necessary cost of refurbishment as a pub at £300,000. As to ‘The Bevy’, Mr Southall provided a recent newspaper article showing that it is both Brighton's only community-owned pub and is still in imminent danger of closure. 33. I also take account of Mr Walker’s evidence. While I do not treat him as impartial – he does appear to have an interest in Dragonfly succeeding in its goals – his evidence was frank and grounded in practicality. I do not set out all of his viability report but have taken it into account. The key considerations, as well as those already set out above when dealing with s.88(2)(a), include: the declining turnover and barrelage pictures over the last few years of operation; the many competing pubs open in the immediate area, as well as cafes restaurants and takeaways; and wider sector challenges such as rising energy costs, beer and food prices and rates, together with a wider reduction in consumer spending on going out. 34. In response to questions asked in evidence, Mr Walker developed these points. He said that 90% of his work is now dealing with the closure of failed pubs. Food is an essential part of commercial survival, and the Montreal Arms has nowhere to put a kitchen – this was tried once and failed in the face of community objections and practical obstacles. A busier nearby pub, ‘The Hanover’, had recently closed. Locally, the demand for pubs had been reduced by a change in demographics. Hanover used to have more students, but they had gone elsewhere in light of increasing obligations surrounding House in Multiple Occupation licences. There are other community spaces that people can use to meet, including a nearby church hall. 35. Mr Walker’s viability report is accompanied by a survey from a structural engineer that raises significant concerns over the suspended timber ground floor, the ingress of damp in the cellar, dry rot elsewhere, corroded steel angle lintels on the frontage and damp and mould. A report has been provided in response by the Council’s Senior Building Control Surveyor, Mr Mike Sansom MRICS. He disagrees that the issues noted by Dragonfly’s report show systemic failure of the external walls or require significant work to address in the short term. He does agree that the suspended wooden floor and other parts of the building are deteriorating and that in the medium to long term they might result in the building falling into such a condition as to require action under the Council’s Dangerous Structures powers. Consideration 36. I pay tribute to the meticulous and constructive way in which Mr Southall, on behalf of Dragonfly, has pursued this appeal. There is some force to his submissions that the original nomination was motivated, at least in part, by irrelevant concerns such as the building’s appearance and views on residential development in general, and even personal animus. I take FMA’s lack of present involvement as making it unlikely that there is any current real proposal to purchase and operate the Montreal Arms. 37. The evidence is finely balanced, and it is certainly unlikely that the Montreal Arms will see any use in the next five years that would further the social wellbeing or social interests of the local community. I nonetheless reach the conclusion that it is realistic. 38. While detailed and comprehensive, Mr Walker’s evidence takes a somewhat myopic view of what a pub would look like. This is understandable, as he is in the business of acting for breweries and pubs that aim to be successful commercial enterprises. If the question posed was whether the Montreal Arms could be such a pub in the next five years, I would agree that it is unrealistic. Yet the downturn in fortunes for tied houses and chain pubs has also seen opportunities for smaller, independent and even hobbyist establishments. While the Montreal Arms was unprofitable before its closure, it still did not close until forced to do so by the pandemic. Just as it was sustained then by a landlady who was happy to treat it just as somewhere to live, it is realistic to think that it might likewise be opened in the future by a person or group that does not need it to turn a profit, or even to pay its own way. Not only might a community group or individual be willing to bear a pub as a loss-making venture, some pubs are opened as a retail outlet for micro and small breweries. While these face similar challenges to the larger chains of the sort Mr Walker describes, they have been less hard hit. Likewise, some small and independent pubs strike deals with local takeaways and restaurants rather than run their own kitchens – the notion that a kitchen is necessary to survive is not representative of the many and varied pubs operating in the UK. There is a realistic chance that the use I have described would add value to the community distinct from that offered by other nearby pubs and the local church hall. While ‘The Bevy’ has faced existential commercial obstacles, it has still operated for a while – that is all s.88(2)(b) requires. 39. The rival structural engineering reports do not disclose any major works that must be concluded before the building could open as a pub at all, and if Dragonfly is unsuccessful in obtaining planning permission for residential use then the medium and long term works will be squarely reflected in a reduced purchase price. If facing significant delay in achieving its ambitions Dragonfly might equally decide to cut its losses by renting out the pub to the type of operator I describe in the above paragraph, even though it has set its face against it in this appeal. I am unwilling to accept in the absence of clearer evidence that obtaining a premises licence would be impossible without unrealistic additional renovations. 40. In conclusion, while the prospects are slim that the Montreal Arms will see any use in the next five years that would further the social wellbeing or social interests of the local community, it is still realistic to think that it could.” Background ACV status would provide a realistic platform for thought and communication which could transition into a new reformed venue and could bring together the diverse talents and creativeness of people living here and offer a means to exchange and connect through opening the public space again to be a vibrant and friendly venue appealing to diverse community members and offering social activities, educational and vocational learning of subjects and multi-use of inclusive arts and crafts, Social Prescribing, activity for supporting wellbeing, fringe theatre and live music events, works and meeting space as well as offering food and beverages and celebrating the history and exchange of stories between people and multi-generational activities. The appeal Legal Framework and Issues “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. 6. A community nomination must include the following matters— (a) a description of the nominated land including its proposed boundaries; (b) a statement of all the information which the nominator has with regard to— (i) the names of current occupants of the land, and (ii) the names and current or last-known addresses of all those holding a freehold or leasehold estate in the land; (c) the nominator’s reasons for thinking that the responsible authority should conclude that the land is of community value; and (d) evidence that the nominator is eligible to make a community nomination. Was FMA’s nomination valid? Consideration Community value in the recent past Consideration The future 30. In Gullivers Bowls Club Ltd v Rother District Council and Anor (CR/2013/0009), Judge Warren heard an appeal by Gullivers Bowls Club Ltd, the owner of land used as a bowls club, which appealed against the inclusion of its land in the statutory list, following nomination by a Community Association. Judge Warren held: "11. Turning to the future condition in Section 88(1)(b) Mr Cameron [representing the Bowls Club] submits that the existing bowls club has no realistic prospect of continuing. He points to the poor state of the buildings and the finances and relies on a report prepared by GVA. This finds that Gullivers is not commercially viable. Mr Cameron submitted that since listing lasts for five years, my starting point in considering whether the future condition was satisfied, should be whether the bowls club could continue in existence for that length of time. 12. I do not accept that the statute requires me to foresee such long-term viability. Indeed, it seems in the very nature of the legislation that it should encompass institutions with an uncertain future. Nor, in my judgment, is commercial viability the test. Community use need not be and often is not commercially profitable. 13. On this issue, I accept the submissions made by Mr Flanagan. Gullivers may be limping along financially but it still keeps going and membership is relatively stable. Of course it is possible that something could go drastically wrong with the buildings and Gullivers would not have the capital to repair them; but that has not happened yet and, in an institution that has lasted for 50 years, it would be wrong to rule out community spirit and philanthropy as resources which might then be drawn on. In any event, should the site cease to be land of community value, Rother would have power to remove it from the list." 31. In Worthy Developments Ltd v Forest of Dean District Council and Anor (CR/2014/0005), Judge Warren dismissed the appeal of a developer, which had bought a former pub known as the "

"17. In respect of the future condition, Worthy Developments Ltd asked me to have regard to their intention to develop the plot to provide two houses. I take that into account although I balance it with the fact that they have not yet obtained the necessary planning permission. I also take into account the remoteness of the public house which must compound the general malaise affecting public houses nationally. 18. The written submissions ask me to consider which was the more likely to happen, that planning permission should be obtained and houses be built, or that the building be revived as a pub? In my judgment, however, to approach the issue in this way is to apply the wrong test. 19. I agree with the council. The future is uncertain. Worthy Developments Ltd may or may not obtain their planning permission. They may or may not sell the land. The Save our Sun Committee may or may not see their plans reach fruition. It remains still a realistic outcome that The Rising Sun might return to use either as a traditional pub or as a pub/shop/community centre as envisaged by the committee. 20. My conclusion in this respect is reinforced by the pledges of support and petitions gathered by our (sic) Save our Sun Committee. It is true that they have not yet made an offer with a firm completion date but their proposals are not fanciful. It is enough that return to use as a pub or some other venture furthering the social wellbeing or interests of the local community be realistic."

"...prospects are slim that the Montreal Arms will see any use in the next five years that would further the social wellbeing or social interests of the local community" (paragraph 40 of Judge Neville’s 10 decision) whilst simultaneously agreeing with the Council's position that it is not "fanciful" to envisage the property's potential for community use within five years represents a fundamental contradiction and constitutes a misapplication of the “Realistic to Think” test. 3. The conclusion drawn by the judge is perplexing due to its lack of adequate justification. The acknowledgment of the slim chances of the property benefiting the community contrasts sharply with the optimistic assertion of its realistic use. This dichotomy in the judge's reasoning creates an ambiguity that undermines the decision's clarity and legal soundness. 4. The contradictory language in the decision further adds to the confusion. For example, paragraph 37 of the decision states that it is "certainly unlikely" that the Montreal Arms will be used in a way that furthers the community's interests in the next five years, yet Judge Neville concludes that such use is still realistic. This juxtaposition of unlikely prospects with a realistic outcome is contradictory and lacks a robust legal basis. Further, the simultaneous assertion that an outcome is both “certainly unlikely” and "realistic" presents an inherent inconsistency within the judgment and thus raises substantial questions regarding the logical and legal foundations of the decision. 5. How can a scenario be simultaneously deemed "certainly unlikely" and yet "realistic" in the context of the Localism Act 2011? This inquiry is pivotal as it speaks directly to the heart of the legal standards for determining a property's inclusion as an Asset of Community Value (ACV). It is essential to reconcile these conflicting assessments to uphold the integrity of the legal process. 6. The appellant notes the absence of a clear and reasoned explanation for the judge's decision, which is important in terms of providing an understanding of the legal basis for such rulings, especially when decisions deviate from the presented evidence. The lack of such reasoning in this case raises questions about proper legal reasoning and transparency in the decision-making process. 7. These issues compromise the clarity and legality of the judgment, which warrants further review and clarification. 1.1 Failure to Assess Practicality 8. Judge Neville ought to have considered whether his assessment conformed to sensible and practical prospects of realising a compliant scenario, particularly when weighed against the Appellant’s intentions and the potentiality of alternative scenarios. Instead, and despite reviewing evidence to the contrary, he deems it "realistic" that the property could function as a community-serving Public House and, further, that it could do so entirely without any likelihood of financial viability or tangible community support. 2.1 Inconsistency in Applying Legal Principles: 9. The law mandates an appraisal of whether a scenario represents a rational and feasible notion of what can be accomplished, in accordance with the definition of "realistic" as established in the case of Carsberg -v- East Northamptonshire Council [2020] UKFTT CR-2020-0004 (GRC). Judge Neville's assertions that the "prospects are slim," and "certainly unlikely," inadequately address this pivotal facet, revealing an unsettling inconsistency in the application of legal principles, particularly in evaluating the practicality and realism of the property's future use. 10. Judge Neville failed to accurately apply the "

"…the legislation does not require a potential future use to be more likely than not to come into being, in order for it to be realistic. The fact that the most likely of a number of scenarios is one which would not satisfy the statutory criteria (e.g., a change of use from pub to residential) does not mean that any other potential future use is, without more, rendered unrealistic. It is only if the non-compliant scenario is so likely to occur as to render any compliant scenario unrealistic, that the non-compliant scenario will be determinative of the nomination." 14. Of paramount significance in Judge Lane's judgment is the inclusion of the phrase "without more," as underscored above. This phrase elucidates the requirement that, in instances where a non-compliant scenario involving development not aligned with the community value criteria is anticipated, as is the case under consideration, there must exist affirmative evidence to establish the realism of a compliant scenario. In this context, a compliant scenario denotes one where the property will be employed in a manner consistent with the community value criteria in the future. 15. The phrase "without more" within the judgment emphasizes the necessity for a nuanced and comprehensive assessment when determining the realism of potential future uses. It implies that a simplistic comparison of probabilities falls short and additional factors or evidence should be considered to conduct a thorough evaluation of whether a specific scenario aligns with the statutory notion of realism. This interpretation is in harmony with the judge's intent to discourage oversimplification and encourage a holistic understanding of the pertinent legal standard. 16. Judge Lane's ruling underscores the imperative of a nuanced examination of realism in potential future uses, signalling that a mere probability comparison is inadequate, a perspective insufficiently considered in Judge Neville's decision. 17. In the context of the judgment, the phrase "without more" plays a pivotal role in the interpretation of the discussed legal standard. It suggests that merely having a scenario less likely than the most probable outcome does not suffice to label that scenario as unrealistic. It implies the need for additional factors or evidence to render a less likely scenario as unrealistic. 18. Further, by incorporating "without more," the judge cautions against oversimplifying the evaluation process. It signifies that a mere probability comparison is insufficient for determining the realism of a less likely scenario. 19. The presence of the use of language "without more" indicates the necessity for a comprehensive and thorough evaluation that goes beyond mere probability comparisons. It involves considering other relevant aspects or evidence that might influence the realism of a potential future use. 20. In essence, the phrase "without more" serves to underscore that determining what constitutes a "realistic" future use under the statute requires a more profound examination than a superficial comparison of probabilities. 21. It is pertinent to note that Judge Lane's ruling provides essential context for grasping the "

“the construction of s88(2)(b) adopted by Judge Warren in Gullivers Bowls Club Ltd v Rother District Council and Anor (CR/2013/0009), and consistently followed, is the correct one. The legislation does not require a potential future use to be more likely than not to come into being, in order for it to be realistic” [41]. 13. This paragraph provides the answer to the Appellant’s appeal; a potential future use does not need to be more likely than not to be realistic. There is nothing in the same judgment that contradicts this approach. In particular, despite what is argued by the Appellant, there is nothing to suggest there is a need for ‘positive evidence’ to ‘substantiate the realism’ of a realistic use. As Judge Neville noted in his reasons refusing permission to appeal: “While (like all factual questions) realism must be decided with regard to all the evidence, it is a proleptic assessment. It does not demand, for example, positive evidence of a current proposal that is being actively and realistically pursued” [§3]. 14. Lest there was any doubt as to the approach to be taken, in Banner Homes Ltd v St Albans City and DC [2018] EWCA Civ 1187, the Court of Appeal when considering a case involving the interpretation of s88(2)(a) noted in respect of section 88(2)(b) that: “The Upper Tribunal rejected Banner Homes’ argument that in referring to what was “not fanciful” rather than what was “realistic” for the purposes of section 88(1)(b) and 88(2)(b), the First-tier Tribunal had made an error of law. The Upper Tribunal also rejected the argument that the First-tier Tribunal’s decision on ‘the future use point’ was contrary to the evidence, holding that what is realistic for the future, is a matter of judgment for the local authority (or on appeal, for the First-tier Tribunal) and is not a matter of ‘veto for the landowner…The Upper Tribunal refused Banner Homes’ application for permission to appeal to the Court of Appeal on “the future use point”, as did I on the papers on 27 February 2017. The application for permission on this Ground has not been renewed” [34-35]. 15. That approach of treating a realistic prospect as something that is simply more than fanciful has been consistently followed by the FtT in numerous cases including in the Roffe case [Roffe v West Berkshire Council CR/2019/0010], where UT Judge O’Connor observed at §35 that: “In summary, I accept that the future of the Winterbourne Arms is fraught with uncertainty, which is only fuelled by the current uncertain trading conditions for such establishments. It is impossible to identify what the likely future of the premises might be. However, as already indicated, the task for me is not to determine the likely future use … but to consider and assess whether one realistic non-ancillary use of the property would lead to the furtherance of the social wellbeing or social interests of the local community.” 16. Indeed, in other legal contexts, such as applications for permission to appeal to the UT, the UT will give permission to appeal only if there is a realistic prospect of an appeal succeeding, and not simply a fanciful chance of success, unless there is exceptionally some other good reason to do so: Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538. Similarly, when applying for summary judgment under Part 24 CPR, it is well-established that the court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All ER 91. “Realism” is therefore some prospect that is more than a fanciful prospect, but that is certainly not the same thing as saying it is a likelihood or certainty. There is thus a consistency and rationality to the approach the Courts take to the 2011 Act that is taken elsewhere. 17. It follows from the above that there is no discernible error of law in the Judge concluding that an outcome is realistic while at the same time describing its prospects as “slim”

“Introduction 1. The respondent's arguments hinge on a broad interpretation of what constitutes "realistic" under s88(2)(b) of the Localism Act 2011. However, their assertion that there is no discernible error of law in Judge Neville’s conclusion of 26th July 2023 is flawed. Describing an outcome as both "slim" and "realistic" without substantive evidence fails to meet the standard of a comprehensive assessment mandated by the Localism Act 2011. 2. The respondent fundamentally misinterprets the standard of "realistic" as established by the Localism Act. The Phrase ‘Realistic to Think’ 3. The phrase "realistic to think" is intended to mean that something must be probable, not just possible. It implies that a belief, expectation, or assumption is practical, reasonable, and grounded in reality. This means it is based on observable facts, evidence, or logical reasoning, making it likely to be true or achievable given the current circumstances. 4. Contrary to thoughts that are overly optimistic, idealistic, or based on wishful thinking, "realistic to think" requires grounding in reality rather than in merely hypothetical scenarios. If interpreted too broadly, almost any scenario can be imagined with some level of realism due to our ability to construct plausible sequences of events. For example, imagining winning the lottery is realistic in the sense that it is a possible event, but it is not probable due to the extremely low odds. 5. Probable scenarios are those with a high likelihood of occurring based on current evidence, logical reasoning, and typical outcomes. This involves critically evaluating the context, data, and likelihoods rather than merely considering what can be imagined. For a thought or expectation to be considered "realistic," it should align with patterns, trends, or rational analysis that indicate it is more likely to happen than not. 6. In essence, while many scenarios can be constructed in a realistic manner, "realistic to think" should focus on those that are supported by a high probability, evaluating what is reasonable and practical to expect. 7. In legal interpretation, the phrase "realistic to think" is not about what could be imagined or is theoretically possible. Instead, it focuses on what is probable, ensuring that expectations are firmly rooted in reality. "Realistic to Think" in the Context of the Localism Act 2011 8. In the context of the Localism Act 2011, the phrase "realistic to think" ensures that the assessment of an asset’s value to the community is based on a reasonable probability of continued or future use, rather than mere possibility or speculation. 9. The phrase "realistic to think" in the Localism Act 2011 was designed to protect only those properties with a genuine and probable prospect of community use. The legislative intent is to prevent speculative listings that could misuse the Act. According to the Localism Act 2011, "realistic" must be interpreted to reflect a reasonable likelihood based on substantial evidence, not just any remote possibility. 10. It is logically inconsistent to deem a property's future community use as both "slim" and "unlikely" while also claiming it is "realistic to think" it will serve the community. The terms "slim" and "unlikely" inherently suggest a low probability, contradicting the reasonable likelihood implied by "realistic." 11. If a judge concludes that the prospects of a property seeing any community use in the next five years are slim and describes it as unlikely, it means that the probability of such use is very low. For a belief or expectation to be "realistic to think," it must be grounded in a reasonable likelihood or probability. Since Judge Neville deemed the chances as unlikely, it indicates that there is insufficient evidence or likelihood to support the expectation that the property will serve the community, thus failing the criterion of being "realistic to think." 12. If a judge argues that "realistic to think" is broad enough to include scenarios with slim or unlikely prospects, they are interpreting the term to encompass a wider range of possibilities. However, the intention behind "realistic to think" is to imply a practical and probable expectation based on evidence and logical reasoning. If the prospects are deemed slim or unlikely, it contradicts the notion of being "realistic" because "realistic" necessitates a higher likelihood and stronger basis in current facts and trends, rather than merely conceivable possibilities. 13. Therefore, "realistic to think" should be interpreted to mean a reasonable likelihood, not slim or unlikely chances. Legislative Intent and Context 14. The wording of the Localism Act 2011 was deliberately chosen to strike a balance between empowering communities and ensuring that only assets with a genuine, realistic prospect of future community use are protected. The phrase "realistic to think" was carefully crafted to require a reasonable likelihood of future use, not just a remote or speculative possibility. This is evident from the legislative intent and judicial interpretations that have emerged since the Act's implementation. 15. The primary goal of the Localism Act 2011 was to give communities the ability to safeguard assets that genuinely contribute to social wellbeing and community interests. However, the legislation was not intended to be so loose as to allow any and every property to be listed based on mere speculative potential. If "realistic to think" were interpreted to include slim or unlikely prospects, it would render the criteria meaningless and lead to the misapplication of the Act. This would dilute its effectiveness and place an unreasonable burden on property owners. 16. The Localism Act 2011 requires that for a property to be listed as an asset of community value, it must be "realistic to think" that its use will further the social wellbeing or social interests of the community within the next five years. This implies a need for a reasonable probability, not just a remote possibility. 17. The term "realistic" inherently means having a good chance of being true or achievable. If the prospects of community use are described as slim or unlikely, it indicates a very low probability, which does not meet the threshold of being "realistic." The distinction must be maintained between what is merely possible (anything conceivable) and what is probable (likely to happen). 18. The purpose of the Localism Act is to empower communities with realistic and achievable opportunities. Maintaining a property on the register based on slim prospects does not align with the practical and actionable spirit of the legislation. A stricter interpretation ensures resources and efforts are directed towards genuinely viable community assets. The phrase "realistic to think" should be interpreted as having a strong probability, not just being more than fanciful. 19. In conclusion, Judge Neville’s interpretation dilutes the practical standards set by the Localism Act 2011, which seeks to balance community empowerment with realistic expectations. The term "realistic to think" must be interpreted as having a strong probability, backed by evidence and logical reasoning, not just a remote chance. 20. The interpretation that "realistic" does not mean "more likely than not" should not dilute the term to the point where remote chances are considered realistic. This would contradict the intention of the Act and judicial consistency, which require a balanced, evidence-based assessment. The legislative intent demands a reasonable likelihood for future community use. The judge's finding of slim and unlikely prospects fails to meet this standard, rendering the property ineligible for listing as an asset of community value under the Localism Act 2011. The respondent’s argument relies heavily on interpreting "realistic to think" in a way that stretches the phrase to cover scenarios with slim or unlikely prospects. Describing its prospects as "slim" and "unlikely" should logically exclude it from being realistically expected to serve the community. 21. The respondent’s argument seems to bend the term "realistic" to include any possibility, no matter how remote, which is not the intention of the legislation. 22. The respondent’s arguments appear to be overextending the interpretation of "realistic to think." They are bending the realities of the phrase’s meaning to fit their position, which contradicts the legislative intent and practical application of the Localism Act 2011. The Act was designed to protect genuinely viable community assets, not to include properties with only slim or unlikely prospects of future use. 23. A former pub with "slim" and "unlikely" chances of serving the community again cannot be considered "realistic to think" under the Localism Act 2011. The property does not meet the realistic standard. Consequence of Broad Interpretation 24. I respectfully request the Upper Tribunal to consider the broader policy implications of setting a precedent that allows properties with slim and unlikely prospects to be listed as Assets of Community Value (ACVs). This could lead to the over-inclusion of properties, misuse of the Act, and a dilution of its effectiveness. 25. If the term "realistic to think" is interpreted too broadly, it would lead to the over-inclusion of properties on the ACV list. This would not only misapply the legislation but also create an untenable situation for property owners, who would have no meaningful way to argue against their properties being listed. Such an interpretation could result in virtually every building being imagined to have some community use, thereby undermining the Act's intended purpose and practical application. 26. Emphasising a more rigorous standard for "realistic to think" aligns with policy goals and judicial consistency. A strict interpretation ensures that only properties with a genuine and probable prospect of community use are protected, maintaining the balance intended by the Localism Act 2011. This approach prevents the Act from being misused and ensures that its protections are reserved for truly viable community assets. Response to Respondent's Specific Arguments Argument Breakdown and Counterpoints 27. Argument 1: The Interpretation of s88(2)(b) ● Respondent's Point: The Respondent cites R(TV Harrison CIC) v Leeds School Sports Association [2022], stating that a potential future use does not need to be more likely than not to be realistic. ● Counterpoint: While Judge Lane in the mentioned case did suggest that potential future use does not need to be more likely than not, this interpretation does not eliminate the need for a grounded basis in reality. There must still be some substantive evidence or a logical pathway demonstrating how the potential use is more than a mere theoretical possibility. ○ Misinterpretation of Judge Lane's Judgment: The respondent's reliance on R(TV Harrison CIC v Leeds School Sports Association is fundamentally flawed due to a misinterpretation of Judge Lane's judgement. While it is true that Judge Lane affirmed that s88(2)(b) does not require a potential future use to be more likely than not to be realistic, the respondent overlooks the critical nuance in his ruling. ○ Nuanced Examination Required: Judge Lane explicitly emphasised that the determination of whether a potential future use is realistic must involve more than a superficial comparison of probabilities. This comprehensive and thorough assessment is mandated by Judge Lane, especially highlighted by the phrase "without more." ○ The Role of "Without More": The phrase "without more" underscores the necessity for additional evidence or factors to substantiate the realism of a potential future use. This requires an in-depth consideration of all relevant evidence to assess the realism of the proposed future use. ○ The Need for Evidential Support: Contrary to the respondent's claim, the phrase "without more" in Judge Lane's judgement implies a need for positive evidence or additional factors to support the realism of a future use scenario. There must be substantive evidence or considerations that make the scenario plausible within the statutory framework. ○ Selective Use of Case Law: The respondent references various cases to support their broad interpretation. However, many of these cases, such as Roffe and Winterbourne Arms, involve specific factual contexts where future use had tangible, albeit uncertain, prospects. By generalising these rulings, the respondent is attempting to apply them to a broader range of situations than they were intended to cover. ○ Uptin House v Newcastle City Council: In this case, Judge Jacqueline Finlay ruled that the property should be removed from the ACV list because it was not realistic to think it would further the social wellbeing or social interest of the local community in the future. This decision underscores the requirement for a reasonable likelihood of future community use, not just a remote possibility. ○ Conclusion: The respondent's argument misinterprets the precedent set by R(TV Harrison CIC by ignoring the requirement for a nuanced and evidence-based assessment of potential future uses. Judge Lane's emphasis on a comprehensive evaluation process indicates the necessity for positive evidence to substantiate the realism of a potential future use. Therefore, the respondent's reliance on a simplified interpretation fails to address the core principles established by Judge Lane and misapplies the legal standard for determining the realism of future uses under s88(2)(b) of the Localism Act 2011. 28. Argument 2: Realism vs. Fanciful Prospects ● Respondent's Point: References to Banner Homes Ltd v St Albans City and DC [2018] highlight that a realistic prospect is one that is not fanciful. ● Counterpoint: The distinction between 'not fanciful' and 'realistic' still demands a threshold of plausibility. The judgement emphasises that while the future use does not need to be highly probable, it must still be viable within the context of current evidence. Simply asserting that a future use is not fanciful without providing a realistic roadmap undermines the intention behind the legislation. ○ Overreliance on "Not Fanciful" Standard: The respondent repeatedly cites the "not fanciful" standard from cases like Banner Homes Ltd v St Albans City and DC [2018] to support their claim. While this standard does provide some leeway, it does not mean that any remote chance meets the realistic threshold. The respondent is stretching the interpretation to suggest that even slim or unlikely prospects are sufficient, which could lead to the misapplication of the Localism Act. 29. Argument 3: Application in Other Legal Contexts ● Respondent's Point: Analogies are drawn to other legal contexts, such as appeals and summary judgments, to illustrate that a realistic prospect is more than a fanciful one. ● Counterpoint: While it's true that 'realistic' in legal contexts often means more than fanciful, these analogies also underscore the necessity of a sound evidentiary basis. In Swain v Hillman, for example, a claim must be grounded in reality with supporting facts, not mere speculation. ○ Contradiction in Terms: The key issue here is the inherent contradiction in deeming a scenario as both "slim" and "realistic." The term "realistic" implies a level of plausibility and likelihood that goes beyond mere theoretical possibility. If an outcome is described as having "slim" prospects and is "unlikely," it suggests that the scenario is bordering on the improbable. To argue that such a scenario is not "fanciful" and therefore "realistic" stretches the definition of realism beyond its logical limits. ○ Logical Consistency and Legal Standards: To maintain logical consistency and adherence to legal standards, an outcome described as having slim prospects should not be simultaneously deemed realistic without compelling evidence. The respondent’s assertion that there is no inconsistency in reasoning ignores this fundamental principle. By conflating slim prospects with realism without adequate evidential support, the Judge’s conclusion deviates from the rigorous evaluation process required under the law. ○ Application to Current Case: In our case, the property has been described as having "slim" and "unlikely" prospects for future community use. This description inherently implies a low probability, which cannot satisfy the "realistic to think" standard established in Swain v Hillman. Just as in Swain v Hillman, where the court requires a realistic prospect to carry some degree of conviction, the slim and unlikely prospects of our property do not carry such conviction. Conclusion: The respondent's assertion that there is no discernible error of law in the Judge's conclusion is flawed. The contradiction in describing an outcome as both "slim" and "realistic" without substantive evidence fails to meet the standard of a comprehensive, evidence-based assessment as mandated by the Localism Act 2011 and relevant case law. The necessity for positive evidence or additional factors to substantiate the realism of a potential future use underscores the misapplication of the legal standard in the Judge's decision. Summary of Appeal and Arguments 30. This appeal challenges the respondent's interpretation of "realistic to think" under s88(2)(b) of the Localism Act 2011, which led to the listing of my property as an Asset of Community Value (ACV). The central issue is the respondent’s broad interpretation, which allows properties with slim and unlikely prospects of future community use to be listed as ACVs, contrary to the legislative intent and judicial precedents. 1. Interpretation of s88(2)(b): ○ The respondent misinterprets R(TV Harrison CIC v Leeds School Sports Association by failing to recognise that "realistic" implies a reasonable likelihood, not just theoretical possibilities. The requirement is for a comprehensive and logical assessment. 2. Realism vs. Fanciful Prospects: ○ The distinction between 'not fanciful' and 'realistic' requires a threshold of plausibility grounded in current understanding. The respondent's overreliance on the "not fanciful" standard risks misapplying the Localism Act by including remote chances as realistic prospects. 3. Application in Other Legal Contexts: ○ Analogies to other legal contexts underscore the necessity of a sound logical basis. The inherent contradiction in deeming a scenario both "slim" and "realistic" highlights the need for a logical basis for future community use. 4. Practicalities: ○ Evaluative conclusions must be based on a robust analysis of practical considerations. The lack of consideration of relevant practical issues undermines the validity of the Judge's conclusion. 31. The appeal seeks to ensure that the term "realistic to think" is interpreted in line with the legislative intent and judicial precedents, requiring a reasonable and substantial likelihood of future community use. The current listing of the property as an ACV based on slim and unlikely prospects does not meet this standard and should be reconsidered. Conclusion 32. The appellant respectfully requests that the Upper Tribunal orders the removal of the property from the ACV register. This action is sought on the grounds that the current listing does not meet the legislative standard of "realistic to think," given the slim and unlikely prospects for future community use.”

"10. ... 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. "10. ... 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. 11. 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." 25. At paragraph 8 of her judgment, Sharp LJ set out passages from the Ministerial Foreword to the non-statutory advice note for local authorities issued by the Department for Communities and Local Government on 4 October 2012: "

"32. Banner Homes also argued at the review hearing, and before the First-tier Tribunal that in view of the fact that the Field had now been fenced in, it was not realistic to think the Field could be used in the future to further the social wellbeing or social interests of the local community i.e. that regardless of its central argument on "actual use", the respondents could not satisfy the requirements of section 88(2)(b). In this connection, Banner Homes relied on a statutory declaration made on 3 September 2014 by its planning director, Mr Paul McCann which confirmed Banner Homes' intention not to dispose of the Field, to keep the fencing in place, to maintain the exclusion of the public from the Field apart from the public footpaths, and to promote the Field for development through the Council's Local Plan process. This point was called, below "the future use point." 33.

"The First-tier Tribunal made a finding that was open to it on the particular facts of this case, especially in view of the history of use, and for the reasons that it gave."

"8. In earlier submissions it had been suggested on behalf of Mr Patel that it was essential to demonstrate on the balance of probabilities that the Chesham would reopen as a pub. At the hearing, Mr Turney resiled from that submission and in my judgement he was right to do so. The question posed by Parliament is whether "it is realistic to think" that there could be such an outcome. This should not be confused with the test which courts and tribunals use as the civil standard of proof; a test designed to produce one outcome. The language of the statute is consistent with a number of realistic outcomes co-existing. 9. It is convenient to deal next with a submission on behalf of the appellant in his reply concerning the weight to be given to Mr Patel's intentions. It is said that:- "

"11. Turning to the future condition in Section 88(1)(b) Mr Cameron [representing the Bowls Club] submits that the existing bowls club has no realistic prospect of continuing. He points to the poor state of the buildings and the finances and relies on a report prepared by GVA. This finds that Gullivers is not commercially viable. Mr Cameron submitted that since listing lasts for five years, my starting point in considering whether the future condition was satisfied, should be whether the bowls club could continue in existence for that length of time. 12. I do not accept that the statute requires me to foresee such long-term viability. Indeed, it seems in the very nature of the legislation that it should encompass institutions with an uncertain future. Nor, in my judgment, is commercial viability the test. Community use need not be and often is not commercially profitable. 13. On this issue, I accept the submissions made by Mr Flanagan. Gullivers may be limping along financially but it still keeps going and membership is relatively stable. Of course it is possible that something could go drastically wrong with the buildings and Gullivers would not have the capital to repair them; but that has not happened yet and, in an institution that has lasted for 50 years, it would be wrong to rule out community spirit and philanthropy as resources which might then be drawn on. In any event, should the site cease to be land of community value, Rother would have power to remove it from the list." 32. In Worthy Developments Ltd v Forest of Dean District Council and Anor (CR/2014/0005), Judge Warren dismissed the appeal of a developer, which had bought a former pub known as the "

“The Future Use Point 34. Section 88(2)(b) sets out as one condition for listing that “it is realistic to think that there is a time in the next five years” when there could be a relevant use of the building or other land. 35. The First-tier Tribunal noted that it was said on behalf of the appellant that it was not and never been its intention to grant rights of access or use of the land to any person other than their own employees, agents and contractors or to accept liability for any injury to those unlawfully accessing the land, particularly given its overgrown condition. 36. However, in paragraph 38 of its Decision Notice the First-tier Tribunal said: 38. I nevertheless find, as a fact, that the requirements of section 88(2)(b) are satisfied. Given the long history of peaceable socially beneficial (if formally unauthorised) use of the Field, and of the previous views of its owners, I do not consider that it is all fanciful to think that, in the next five years, there could be non - ancillary use of the land, along the lines that pertained up to September 2014. The timing of the decision to fence the footpaths – coming hard upon the listing under the 2011 Act – strikes me as material. Also of significance is the uncertain present planning position of the land, where a recent application for the grazing of horses has been refused. Whilst I note Banner Homes’ current stated stance, it is not fanciful, given the history of the field, to think that Banner Homes may well conclude that their relations with the local community will best be served by restoring the status quo or by entering into some form of licence arrangement with the Residents’ Association or similar grouping. 37. The appellant attacks this on two grounds. The first is that the First-tier Tribunal applied the incorrect test in considering whether the recommencement for use was “fanciful” rather that whether it was “realistic”

“5. It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal’s reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved ... Those who assert that a tribunal’s reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while “a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all”, that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.”

“The EAT must respect the factual findings of the Employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine toothcomb’ to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.”