The provisions of Part 5 Chapter 3 of the Localism Act 2011 require local authorities to keep a list of “community assets”: buildings or other land of community value. Local groups may nominate a building or other land for listing by the local authority as an asset of community value; and it can be listed if a principal (“non-ancillary”) use of the asset furthers (or has recently furthered) their community’s social well-being or social interests (which include cultural, sporting or recreational interests) and is likely to do so in the future.
The purpose of the legislation is to give local community groups a fairer chance to make a bid to buy a listed asset on the open market when it is to be sold. Generally speaking, an owner intending to sell a community asset must give notice of the proposed sale to the local authority and a community interest group then has six weeks in which to ask to be treated as a potential bidder: if it does so, the sale cannot take place for six months. The theory is that this period, known as “the moratorium”, will allow the community group to come up with an alternative proposal – though at the end of the moratorium it is entirely up to the owner whether or not a sale goes through, to whom and for how much. There are arrangements for the local authority to pay compensation to an owner who loses money in consequence of the asset being listed.
In General Conference of the New Church v Bristol City Council (Localism Act 2011)  UKFTT CR 2014 0013 (GRC) the property in dispute was a church and adjoining land used by the Bristol Society of the New Church, a denomination based on the teachings of Emanuel Swedenborg. The church, which was owned by the General Conference, closed in 2013, by which time it had only three regular members and four other less-regular attenders. Operating costs from 2008-2013 inclusive were some £100,000 and total income only £3-4,500 . The building was also used by the Holy Celtic Church and the City Council used it as a polling station: otherwise, the only user at the time of closure was “Music with Mummy and Jolly Babies” – which at the time of the tribunal hearing had found an alternative venue .
The property was nominated as a community asset by a pressure-group, “Protect Redland and Bishopston from Over-Development” (“PROD”), which was particularly concerned that a purchaser might build on the church grounds . The property was listed in April 2014; Bristol City Council reviewed the listing at the request of the General Conference but in July 2014 decided to maintain it. The General Conference appealed to the First-tier Tribunal, pursuant to Reg 11 of the Assets of Community Value (England) Regulations 2012.
S 88(1) and (2) (Land of community value) Localism Act 2011 provide for listing “a building or other land in a local authority’s area [that] is land of community value” if in the opinion of the authority “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 “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” .
Section 88(6) provides that “social interests” include, in particular, each of the following: “(a) cultural interests; (b) recreational interests; (c) sporting interests”; and the New Church argued that, had Parliament intended to include religious interests within the scope of section 88, it would have made that clear. Although the definition of “social interests” was not exhaustive, the absence of any specific reference to religious interests was significant: the Equality Act 2010, for example, made specific reference in s 4 (protected characteristics) to “religion or belief” as a discrete category, as did Article 9 ECHR. Moreover, religious interests were neither “cultural interests” nor “recreational interests” .
Tribunal Judge Peter Lane found for the New Church. The City Council’s solicitor had considered that “religious worship is for the social wellbeing and social interests of the community”. TJ Lane had nevertheless concluded that the expression “social wellbeing and social interests of the community” in s 88 “did not encompass religious observances in a church, mosque or synagogue etc” and that such a building would not in practice fall within s 88 unless some other non-ancillary use was being made of it that did further the social wellbeing/social interests of the local community .
He noted that in Dorset CC v Purbeck DC (CR/2013/004) a Tribunal had found that there was “no certain guidance or touchstone” for determining whether or not a use was ancillary for the purpose of s 88. Neither planning law nor explanatory memoranda provided definitive answers: “the context is all” :
“In the present case, the original and sole purpose [of the building] was as a church. That remained the position, even when other non-religious groups were permitted to make use of the church. On the facts, I find that the primary use was as a church. Again, on the facts, I find that the evidence discloses that the other uses did not have a more than ancillary character. They were disparate, largely ad hoc and even before closure had dwindled to the point where only one group was using the church on a regular basis. In short, immediately before its closure, the reality was that (despite the decline in congregations) the church was still a church; not a community or social centre. The other uses were ancillary” .
S 88(2)(a) was therefore not satisfied: in his view, there had not been any actual use of the building in the recent past that was not an ancillary use and which furthered the social wellbeing or interests of the local community . But he held that even if he was wrong in his conclusion as to s 88(2)(a), the requirement of s 88(2)(b) was not satisfied because it was not “realistic” to think that in the next five years there could be any non-ancillary use of the building or of the land that would further the social wellbeing or social interests of the local community .
Finally, PROD’s concerns about over-development, protection of fauna and safeguarding mature trees on the site were matters to be addressed in the context of the law relating to development control and were outside the scope of the community asset legislation .
The possibility of a church that was about to be closed being listed as a community asset – with all the subsequent hassle that that would entail – greatly exercised the Churches when the legislation was going through Parliament. Though the judgment of a First-tier Tribunal is not a precedent, TJ Lane’s conclusion provides at least some reassurance that a local authority listing under the Localism Act 2011 is not beyond challenge. But, as in many other areas of conservation law, individual cases are likely to be highly fact-sensitive.