After a polite reminder - I am publishing this later than I should have!! 17th May.
Spirit Inns and Bride Hall requested a review of the Council’s decision to list the Tumbledown Dick as an Asset of Community Value and it fell to the Cheif Exec under our procedures to carry this out . He has now completed the review and I have attached the lengthy Decision Notice below for your information below.
Having taken into account the case presented by Spirit Inns and Bride Hall and the representations submitted by the Friends of the TDD, it has been decided to confirm the original decision which means that the property will remain on the ACV list.
Spirit Inns and Bride Hall have a right of appeal, should they choose to exercise it through a Tribunal process.
Decision Notice:
Localism Act 2011 Part 5 –
Assets of Community Value
Review of Listing Decision
under Section 92
Tumbledown Dick Public House,
Farnborough
1.
Summary
The Council’s Chief Executive has carried out a
review of the decision to list the Tumbledown Dick as an asset of community
value. It has been found that the Council’s original decision was correct and
properly made. Therefore the property will remain listed as an asset of
community value.
2.
Definitions
The following words and phases have the
following meanings:
2.1.
“the Act” means the Localism Act 2011;
2.2.
“ACV” means an asset of community value
within the meaning of the Act;
2.3.
“ACV List” means the Council’s list of
assets of community value maintained pursuant to section 87 of the Act;
2.4.
“Bride Hall” means Bride Hall Holdings
Limited (company registration number 1094063);
2.5.
“the Lease” means the lease of the
Property for a term from 20 April 1995 to 23 June 2022, dated 21 February 1996
and made between (1) The Public House Investment Company Limited, (2) The Chef
& Brewer Group Limited and (3) Scottish & Newcastle Plc (as varied by a
deed of variation dated 21 February 1996 and made between the same parties);
2.6.
“the Council” means Rushmoor Borough
Council;
2.7.
“FTD” means the Friends of the Tumbledown
Dick (an unincorporated association);
2.8.
“the Original Decision” means the
Council’s original decision made on 1 February 2013 to accept the FTD’s
nomination of the Property as an ACV;
2.9.
“the Property” means the Tumbledown Dick
Public House, 227 Farnborough Road, Farnborough, Hampshire GU14 7JT, the
freehold interest of which is registered under title number HP476108;
2.10.
“the Regulations” mean the Assets of
Community Value (England) Regulations 2012;
2.11.
“Spirit” means Spirit Pub Company
(Managed) Limited (company registration number 5269240), the tenant of the
Property pursuant to the Lease (and includes, where relevant, reference to
Bride Hall, its appointed representative);
3.
Background
3.1.
The FTD
nominated the Property as an ACV on 17 December 2011.
3.2.
By the
Original Decision, the Council decided to accept the FTD’s nomination of the
Property as an ACV. Accordingly, the Council added the Property onto its ACV List
and notified Spirit of such listing.
3.3.
On 25
March 2013, Spirit requested a review of the Original Decision in accordance
with section 92 of the Act. Spirit appointed Bride Hall to act as its
representative in connection with this listing review in accordance with
paragraph 5 of Schedule 2 to the Regulations.
3.4.
Spirit
initially requested that the listing review be conducted by way of an oral
hearing in accordance with paragraph 7(1) of Schedule 2 to the Regulations.
However, this request was subsequently withdrawn by Spirit on 16 April 2013. The
Council decided not to hold an oral hearing in accordance with paragraph 7(2)
of Schedule 2 to the Regulations. Therefore this listing review was conducted
by way of written representations only.
3.5.
There is
no provision in the Act or in the Regulations for requiring the Council to
involve the FTD, as the community group which made the original nomination of
the Property, in the listing review. However, the Council considered it to be
fair and equitable to inform the FTD of Spirit’s request for a listing review
and to give the FTD, as well as Spirit, the opportunity to make representations
to the Council regarding such review.
3.6.
The
Council wrote to both Spirit, in accordance with paragraph 6 of Schedule 2 to
the Regulations, and the FTD on 18 April 2013 setting out the procedure to be followed
in connection with the listing review and inviting written representations from
each party.
3.7.
This
listing review was carried out and decided by Andrew Lloyd, the Chief Executive
of the Council, being a Council officer of appropriate seniority who did not
take part in making the Original Decision in accordance with paragraph 4 of
Schedule 2 to the Regulations.
3.8.
In
accordance with section 92(4) of the Act, this is the Council’s decision on the
review and the reasons for the decision.
3.9.
In
carrying out this listing review the Chief Executive took legal advice from the
Solicitor to the Council and had regard to:
3.9.1.
part 5
of the Act;
3.9.2. the Regulations;
3.9.3.
the
Department of Communities and Local Government Community Right to Bid: Non-statutory advice note for local authorities
(October 2012);
3.9.4.
the
nomination form dated 17 December 2011 by which the FTD nominated the Property
as an ACV;
3.9.5.
the
Original Decision;
3.9.6.
the
written representations made by the FTD on 2 May 2013;
3.9.7.
the written
representations made on behalf of Spirit on 2 May 2013;
3.9.8.
the
further written representations made by the FTD on 13 May 2013; and
3.9.9.
the
further written representations on behalf of Spirit on 13 May 2013.
4.
The relevant legislation
The part of the Act that is in
particular relevant to this listing review is section 88(2). This section provides that a property is to
be listed as an ACV following a valid nomination:
“…
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” (emphasis
added).
This
section 88(2) deals with cases where the relevant property is not currently in
use for a relevant community use, as is the case with the Property. Section 88(1) of the Act deals with cases
where a property is currently in use for a relevant community use; this is not
applicable to the Property which is at present vacant and unused.
5.
Spirit’s Representations
5.1.
Spirit
acknowledge that the last use of the Property was one that could make a
contribution to the local community.
That is, Spirit accepts that the criteria for ACV listing in section
88(2)(a) of the Act is fulfilled.
5.2.
Spirit
however also submit that, “… the appeal …
is therefore being made on the basis that … no plausible case has been made to
even suggest that there is a realistic chance of the Property actually making a
contribution to the local community”.
That is, Spirit’s contention is that that the criteria for ACV listing
in section 88(2)(b) of the Act is not met and that therefore the Council was
wrong to accept the nomination of the Property as an ACV.
5.3.
In
support of its position, Spirit point out that the Council stated in its
Original Decision that there were, “… ‘serious
reservations’ about the ability of the Friends of Tumbledown Dick to raise
enough money to bring the buildings into a positive use”.
5.4.
Spirit
has provided some detail as to what it believes to be the likely costs of the
FTD’s proposals for the purchase and opening of the Property and state that
these are likely to be approaching £4.5 million in total.
5.5.
Spirit
also states that the FTD have not submitted any business plan and concludes that,
“… until such time as a viable and
credible Business Plan has been submitted by the Friends of the Tumbledown Dick
with some proof of funding and an idea on cost assumptions, then we feel that
the Council is duty bound to remove this property from the list as it has not
been properly considered against the criteria in the Regulations”.
5.6.
In their
response to Spirit’s initial representations, the FTD state that their aim is
to obtain funding to purchase the Property through grants and lottery funding.
The FTD also question Spirit’s valuation of the Property and estimates for its
renovation. Critically, the FTD state
that whilst they do have a business plan, they not wish to make to publically
available at this stage since they do not believe that it would be in their
commercial interests to do so.
6.
The FTD’s representations
6.1.
The FTD
state that the Property was a, “successful
local music venue for the last 50 years.”
They refer to a number of media articles regarding history of the
Property and its operation as a music venue. The FTD have also included a
number of statements from local residents, former employees of the Property and
others in support of the group’s aims and of the listing of the Property as an
ACV.
6.2.
The FTD
state that they intend to re-open the Property as a co-operative pub and
community hub captialising on the building’s unique historic value.
6.3.
The FTD
state that they have wide public support.
6.4.
In its
response to the FTD’s initial representations, Spirit state that the FTD have
failed to establish demand for a community led venue, demonstrate requisite
skills and experience, produce a credible business plan or clarify their
ability to raise the requisite funds.
7.
Decision and reasons
7.1.
The
Council notes that there have been no submissions suggesting that Council’s
procedure in making the Original Decision was improper or that the FTD’s
nomination of the Property as an ACV was invalid in any way, nor is the Council
aware of any such procedural defect. Therefore the Council is satisfied that
the making of the Original Decision was procedurally correct.
7.2.
Turning
to the substantive reasons for the Original Decision, section 88(2) of the Act
provides for the criteria for listing a property as an ACV, as detailed in
paragraph 4 above. There is a two part test. A local authority needs to be of
the opinion that:
(a)
the
property was in the recent past actually used for a use that 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 the property could be used for a use that furthered
the social wellbeing or interests of the local community.
If both
parts of this test are met, then the local authority is obliged to list the
relevant property as an ACV, following a valid nomination.
7.3.
Spirit accepts
that the first part of this test in section 88(2)(a) is met in that the
Property was previously used for a relevant community use. This is a view that the FTD undoubtedly
share.
7.4.
Spirit’s
ground of appeal against the Original Decision is essentially the second part
of this test in section 88(2)(b) is not met.
That is, its position is that the Council was wrong to come to the
opinion that it is realistic that the Property could be again used for a
relevant community use in the next five years. In support of this position, it
is suggested that the FTD do not have a credible business plan. In addition, Spirit
appears to suggest that it is incumbent upon the FTD to provide proof of their
funding, evidence of market demand for their proposals for the Property and
cost estimates to the Council in order the test in section 88(2)(b) to be
satisfied.
7.5.
The
Council does not share Spirit’s view that the legislation requires a community
group to have a detailed business plan, proof of funding or other detailed
proposals for a property as a prerequisite for it to be listed as an ACV.
Neither the Act nor the Regulations refer to any such information being
required, so far as the Council is aware.
7.6.
The
purpose of the ACV legislation, as stated in the relevant DCLG Guidance, is to
allow communities more time to raise finance to purchase assets of community
value and prepare to bid for them when they are put up for sale. This is the purpose
of the six-month moratorium imposed by the Act before the sale of an ACV can be
effected. Therefore, it would be inconsistent with this purpose if it were
necessary for a community group to provide such detailed business information and
to have offers of funding in place at the point of their nomination of a
property as an ACV.
7.7.
In any
event, the FTD do claim to have a credible business plan and state they are
actively seeking funding. The FTD also state
they do not wish their business plan to be made public at the present time
because to do so could prejudice their commercial interests.
7.8.
Further,
the Council does not believe that it is required to conduct any detailed financial
evaluation of the FTD’s proposals for the Property nor that it would be
appropriate for the Council to attempt to do so.
7.9.
To some
extent, the Council recognises the doubts that Spirit has raised regarding the
credibility and financial viability of the FTD’s proposals for the Property.
However, upon the evidence provided by the FTD, the Chief Executive is
satisfied that an opinion that it is realistic that the Property could be used
for a community use within the next five years is one that the Council is
entitled to arrive at. The Chief Executive is accordingly satisfied that the
criteria in section 88(2) of the Act are met and that therefore Original
Decision was correct.
7.10.
The
Chief Executive’s decision in this listing review is therefore to confirm the
Original Decision. The Property will
therefore remain on the ACV List.
8.
Right of appeal
8.1.
Spirit
is advised that it may
appeal against this decision in accordance with regulation 11 of the
Regulations.
8.2.
Such
appeal must be made to the General Regulatory Chamber of the First-Tier
Tribunal. The deadline for appealing is specified in the procedural rules of
that Chamber as 28 days from the date on which notice of the decision appealed
against was sent to the owner. Appeals may be both on points of law and on
findings of fact. The Property will remain listed during the appeal process.
8.3.
If
it wishes to appeal, it should send the appeal in writing to the First-Tier
Tribunal at:
Tribunal Clerk
Community Right to Bid Appeals
HM Courts & Tribunals
First-tier Tribunal (General
Regulatory Chamber)
P.O. Box 9300
Leicester
LE1 8DJ
Andrew
Lloyd
Chief
Executive
Rushmoor
Borough Council
17 May 2013
