Tribunal allows appeal over listing of 25 acres of woodland as asset of community value

Judges Dixon and Harris heard the case brought by owner Forestscape over land at Pentney Woods.

The tribunal was told this is approximately 25 acres comprising woodland, grassland, heathland and a shallow stream.

Forestscape said the ACV order should be set aside because the two qualifying use tests in section 88 1&2 of the Localism Act 2011 were not satisfied. It also said the site would come into use for caravans.

Points raised by Forestscape included that the site is privately owned woodland with no public right of way, and which is now subject to a felling licence, giving a health and safety risk to the public.

It was intended to use the land as a caravan site for which Forestscape had a provisional licence. The company also argued not all evidence was taken into sufficient account in its request for a review by the council.

Forestscape also objected to the council's reliance on Banner Homes Ltd v St Albans City and District Council [2018] EWCA Civ 1187) as authority for the ideas that use of an ACV is not required to be ‘lawful' and thus that whether access is permitted by the owner is not determinative.

It argued its case was different as there is no public access across the site, there has never been permission to access the woods and the felling licence had been issued.

King’s Lynn & West Norfolk responded by saying the ACV nomination was by East Winch & West Bilney Parish Council and therefore met the criteria within the ACV Regulations, and s.89(2)(b)(i) of the Localism Act 2011.

The council said Pentney Woods has a clear primary use as amenity land and 41 people had signed on the nomination form that they have used Pentney Woods for walking and amenity purposes, birdwatching, bat detecting and photography as it adjoins a county wildlife site.

This meant 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 2011 Act.

Forestscape said 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” and although Pentney Woods was used as access to the adjacent public woodland “entry to the site is not peaceful. Access was through illegal trespass and criminal damage to a fence installed two years and five months before the ACV application”.

The tribunal judges found Pentney Woods to be land in respect of which a site licence is required under Schedule 1 of the Caravan Sites and Control of Development Act 1960 and the fact that no such licence is currently held did 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.

They found Forestscape had intended to operate a caravan site before the ACV nomination was made, and  “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” under the Act.

Judges concluded: “Accordingly, we find the land in question at Pentney Woods cannot be of community value and listed as an ACV.”

Mark Smulian