Can a community that wishes to nominate a property as an asset of community do so eight weeks prior to the end of the five-year listing period?

First published by LexisNexis

Section 87(3) of the Localism Act 2011 (LA 2011) provides:

‘3) Where land is included in a local authority's list of assets of community value, the entry for that land is to be removed from the list with effect from the end of the period of five years beginning with the date of that entry (unless the entry has been removed with effect from some earlier time in accordance with provision in regulations under subsection (5)).’

Any asset of community value (ACV) is therefore de-listed at the end of five years from listing. There is no ability to extend the listing period, instead, a fresh nomination must be made for a new five-year period of listing. If the five years expire, and a new nomination has been submitted but not determined, then the ACV will be de-listed and will not benefit from the community right to bid protections set out in LA 2011. There are no transitional or interim protections in these circumstances.

LA 2011, s 89(1) provides:

‘(1) Land in a local authority's area which is of community value may be included by a local authority in its list of assets of community value only—
(a) in response to a community nomination, or
(b) where permitted by regulations made by the appropriate authority.’

References:
Localism Act 2011, s 89(2)(b)(i)LA 2011, s 89(2)(b)(ii)–(iii)

The Assets of Community Value (England) Regulations 2012 (ACV(E) Regs 2012), SI 2012/2421, were made pursuant to LA 2011. ACV(E) Regs 2012, SI 2012/2421 were not made pursuant to LA 2011, s 89(1) and there is currently no ability for an asset to be added to the ACV list other than in response to a community nomination. A parish counci, or a community council in respect of land in Wales (or a ‘voluntary or community body with a local connection’) must therefore make the nomination. The local authority who maintains the list cannot self-nominate, ACV(E) Regs 2012, SI 2012/2421, reg 5(2), specifically states that a ‘public or local authority may not be a voluntary or community body’. It is therefore important for groups identified in LA 2011, s 89(2) to be beware of the date of expiry of the five-year listing period, and to prepare their nomination in good time. The local authority is not obliged to warn or notify of the imminent expiry of the listing period.

ACV(E) Regs 2012, SI 2012/2421, reg 7 states:

‘The responsible authority must decide whether land nominated by a community nomination should be included in the list within eight weeks of receiving the nomination.’

There is technically no discretion to extend this period (although frequently local authorities take longer than eight weeks to determine ACV nominations) in order for listing to be continuous. It will therefore be necessary for a fresh nomination to be made at least eight weeks before the five-year period expires.

For further information, see Practice Note: The community right to bid and assets of community value—what is the community right to bid, what are assets of community value and how are they nominated?