An open space can be designated as an asset of community value even if its present use is one arising from trespass, the Court Of Appeal has said.
In Banner Homes v St Albans City and District Council Verulam Residents' Association  EWCA Civ 1187 Lady Justice Sharp - with whom Lord Justice Jackson and Lord Justice Davis agreed - ruled that Banner could not assert that a field it owned could not become such an asset just because it was used unlawfully.
Banner has owned an undeveloped 4.83 hectares field in St Albans since 1996, which is bisected by two public footpaths.
It has been used for informal recreation for more than 40 years and although Banner did not give express permission for this it was well aware of these uses, the court heard.
In March 2014 the council listed the field as an asset of community value, following a nomination by the residents' association, and six months later Banner fenced it off apart from the footpaths.
Sharp LJ said: “It is common ground that using the field beyond the public footpaths, for the recreational activities mentioned above, constituted a trespass (or 'trespassory' use).
“The single issue that arises in this appeal is whether such unlawful use can constitute a qualifying use (or ‘actual use’ to use the statutory language) for the purpose of listing an asset as an asset of community value pursuant to section 88 of the 2011 Act.” [The Localism Act 2011]
She noted that case had been through the First Tier Tribunal and Upper Tribunal.
The judge said Banner was within its right to fence off the field but “it is seriously to be doubted that the residents' association appreciated that its nomination of the field would have such a consequence”.
“The issue here is a straightforward one of statutory construction,” the judge said.
“The words ‘actual use’ in section 88 of the 2011 Act are on their face, unambiguous, and if construed literally, are plainly apt to cover the use (the actual use, dare I say it) that the local community made of the field, before it was fenced off.
“Instead [Banner] relies…on the presumption that the law should serve the public interest and the in bonam partem doctrine, a principle of construction that presumes against the construction of a statutory provision so as to reward an unlawful action with a benefit, unless a contrary Parliamentary intention is revealed.”
She said that if this was correct “any taint of unlawfulness, no matter how trivial or technical, in the use of the asset in question would mean that it could not be listed under the scheme as an asset of community value.
“I do not consider [Banner’s] argument is right however…it seems to me that whichever canon of statutory construction is adopted, the legislative intention is plainly that ‘actual use’, in this statutory context, should mean what it says.”
Lady Justice Sharp concluded that the Upper Tribunal did not err in its construction of "actual use" in section 88 of the 2011 Act, the council was entitled to list the field as an asset of community value and she would dismiss this appeal.
Lord Justice Davis said: "It has been an unfortunate consequence in this case that, by reason of the nomination, Banner Homes felt constrained, in order to protect its commercial interests as the land owner, to fence off the Field from the public footpaths.
"It would be a further unfortunate consequence if other land owners, perhaps holding land with a view to potential development in the future, likewise were to feel constrained to restrict public access to their land.
"That particular unfortunate result which has arisen in this particular case may prove to be an unintended consequence of the 2011 Act. But be that as it may, that can provide, of itself, no reason for departing from the clear statutory purpose behind, and the clear statutory language of, the 2011 Act."