Banner Homes Ltd v St Albans City and District Council and Verulam Residents Association: [2016] UKUT 232 (AAC) : [2018] AACR 23
Upper Tribunal Administrative Appeals Chamber decision by Judge Levenson on 11 May 2016.
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Judicial Summary
Reported as [2018] AACR 23
Community organisations; Land use; Legitimacy; Statutory interpretation; Trespass; Uses
Banner Homes Ltd (‘the Appellant’) appealed against the listing of its land as a community asset by the respondent local authority. The undeveloped land consisted of about 4.83 hectares or 12 acres and was situated in the metropolitan green belt. It was crossed by two public footpaths and had been used for more than forty years by the local community for peaceful and beneficial recreational activities. The landowner had been aware of the existing community use when it purchased the land in 1996 and had taken no steps to oppose the use since. The 820-strong Verulam Residents’ Association made a community nomination for the land to be listed as an asset of community value. St Albans City and District Council (‘the Council’) listed the land, and notified the Appellant who applied for an oral review and shortly before that was due to take place, erected fencing along the length of the public footpaths together with notices that read “private land, no unauthorised access”. The Appellant submitted that as a matter of law, “actual use” for the purposes of the Localism Act 2011 s.88(2)(a) had to mean “lawful use”; and since any actual use of the land by the local residents, apart from the public footpaths, was a trespass, and unlawful, it could not form a qualifying use for listing the asset as of community value. This turned on whether s.88 should be construed in accordance with the in bonam partem principle, and the reasoning of the Supreme Court in Welwyn Hatfield BC v Secretary of State for Communities and Local Government [2011] UKSC 15.
Held, dismissing the appeal, that
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the decision of the Supreme Court in Welwyn Hatfield did not support the inflexible “bright line” approach of the Appellant; namely that any unlawfulness, no matter how slight or trivial in relation to the use in question, would prevent it from qualifying as actual use for the purposes of s.88.
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the approach where public policy is invoked as an aid to statutory interpretation was a more textured open one. Regard must be had to the context and to the nexus between the conduct and the particular statutory provision.
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the legislative scheme in this case was also very different to the one under consideration in Welwyn Hatfield, where the factual satisfaction of a particular condition, on a literal interpretation of the legislation, secured the relevant benefit, regardless of how that condition came to be satisfied. In those circumstances, public policy had to come to the rescue, and the literal wording of the statute bends to the public good.
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the wording of s.88, as a matter of literal construction, the policy behind the Scheme, and its purpose all point in the same direction. The Upper Tribunal did not err in its construction of “actual use” in s.88 of the 2011 Act.
Updates to this page
Last updated 23 December 2019 + show all updates
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Decision selected for reporting as [2018] AACR 23
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First published.