Asset of Community Value - The Royalty Harborne

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Asset Of Community Value Nomination

Following on from the successful public consultation which clearly evidenced the support for retaining the Royalty and taking forward the various proposals, the Committee decided to submit an Asset of Community Value application.

The Localism Act introduced the Asset of Community Value regulations to counter community assets such as village halls  being lost to the community because the community could not respond swiftly enough when there was a decision to sell. The Act compelled a pause during which groups acting on behalf of the community can organise a competitive bid for the asset.
To achieve this certain community bodies such as the Harborne Royalty Trust may nominate an asset for listing by the local authority. Once listed the Act imposes a moratorium when there is an intention to dispose of the listed asset but does not compel a sale to any such community group. No control is imposed over the terms of the proposed sale or to whom the disposal is made or as to the use to which the asset is put.

Definition of an Asset of Community Value
Section 88 (1) of the Localism Act 2011 defines an asset of community value as:
A building or other land in a local authority’s area is land of community value if in the opinion of the authority—
(a) 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;
(b ) it is realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.
Social interests includes (in particular) cultural, recreational or sporting interests
Section 88(2) of the Act extends this definition to land which has furthered social wellbeing or interests in the recent past, and which it is realistic to consider will do so again during the next five years.. There is no definition as to what constitutes the recent past and this is left to the Council to determine.
We evidenced its use in the recent past as a cinema and bingo hall and the fact it had also been used for other occasions such as birthday parties. We also provided comprehensive information on how it would be used in the future and the demand locally for those uses evidenced by the community consultation. Finally we asked if any more information was required giving the Council the opportunity to request any additional information. Apart from confirmation of our membership numbers which we expected nothing else was requested.
Asset of Community Value Nomination Refused

Despite the comprehensively detailed nomination for the Royalty to be recognised as an Asset of Community value, it has been refused.
 
The Trust supplied a 99 page nomination document which addressed all the requirements. This listed details of the buildings art deco features, ownership details, vague as they are, consultation information, results and many of the comments made supporting the restoration. To date we have found commercial parties willing to invest substantial sums in the property. We have carried out a comprehensive public consultation, We have commissioned a Heritage Statement, We have submitted two planning pre applications and we have put together a comprehensive viability study and yet this has all been ignored.
 
WHY WOULD THE COUNCIL REFUSE SUCH A COMPREHENSIVE APPLICATION????
 
We constantly hear about ‘Localism’ and ‘community consultation’ but this has proven to be just empty rhetoric when it comes to the Royalty and Birmingham City Council listening to and respecting the 1,180 people who took the trouble to express their views and which clearly count for nothing.
 
We have also tried as part of the future ‘Ward Plan’ to ensure that your wishes for the various facilities expressed in the consultation were included in the plan whether or not it is the Royalty that delivers them. But again the Council have been careful to avoid having anything in the plan they think might be seen as justifying retention of the Royalty.
 
Shame on this Council. Shame on those who have sat on the fence and not been prepared to back us in public and shame on those local interests who are seeking to profit from getting rid of this listed building.
 
We responded with a comprehensive set of questions to the Council as to how they arrived at this decision. We all need to see if they can really and honestly justify this refusal and then we’ll review whether to take the matter further. Read these questions and the Councils responses below. We have also include another Councils response to a similar ACV application.
 
Questions To The Council


1. Does Birmingham City Council acknowledge that it failed to provide a valid contact for Asset of Community Value nominations at the time of the Harborne Royalty Trust nomination?
 
2. Does Birmingham City Council acknowledge that it failed the requirement that 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 as set out by Paragraph 7 of The Assets of Community Value (England) Regulations 2012.
 
3. On what grounds does Birmingham City Council find that the Harborne Royalty Trust has not provided reasonable justification to satisfy the test set out in sections 88 (2) (b) of the Localism Act 2011 as to whether 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?
 
4. In reviewing the application and given that the building is currently closed to the public a consideration is whether the test at Paragraph 88 (2) of the Localism Act 2011 is met:
 
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community; and
 
(b) 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.
 
With regard to (a) on what grounds does Birmingham City Council not accept there is clear evidence that the building has previously been used for activities which furthered the social wellbeing or interests of the local community.
 
With regard to (b) on what evidence does Birmingham City Council consider it unrealistic 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 given the information provided by the Harborne Royalty Trust.
 
5. Birmingham City Council considers ‘in the recent past’ to be restricted to 5 years, but such an approach has not found favour with the courts. The effect of this case law is such that the concept of recent is a relative one. On what legal basis has Birmingham City Council determined 5 years to be an appropriate period for Asset of Community Value nominations?
 
 
6. Has Birmingham City Council accepted any nominations in the past which exceeded the period of 5 years?
 
7. Does Birmingham City Council accept that it is not necessary to show that the local community support takes the form of a proposal by the Harborne Royalty Trust to acquire and run the nominated asset? The possibility of a future commercial use supported by the local community is sufficient.
 
8. Does Birmingham City Council not accept that the possibility that planning permission might be obtained for another use with less facilities than those proposed by the Harborne Royalty Trust on the site is sufficient to satisfy the condition that there could be a non-ancillary use of the premises in the next five years which furthers the social wellbeing or social interests of the local community?
 
9. As the proposals relate to only part of the site why did Birmingham City Council not consider it possible that within the next five years that all or parts of the building subject to the asset of community value nomination could be restored to use which furthers the social wellbeing or social interests of the local community supported by an enabling development elsewhere on the site?
 
10. Did Birmingham City Council as part of its review process take into account proposals by the current owner as part of a public consultation to provide limited community facilities including a cinema supported by an enabling development?
 
11. Did Birmingham City Council as part of its review process of our nomination take into account the current discussions between the owner and senior planning officers in which the current owner stated options from demolition to a full rebuild are currently being discussed and that this statement was made in the presence of a senior planning officer at a public meeting?
 
12. Does Birmingham City Council accept that it has not requested any further information or clarification with respect to our asset of community value nomination from the Harborne Royalty Trust other than a list of Members which was provided 27/11/2019?
 
13. Please confirm if and when a meeting of the ACV Officers group was held to discuss the nomination by the Harborne Royalty Trust and if they compiled a report recommending refusal or acceptance of the nomination?
 
14. Please provide a copy of the report on which the asset of community value decision was made.
 
15. Are  local Councillors consulted on the nomination for listing as an asset of community value and if so what opinion or information has been requested from them with respect to our nomination
 
We then put 4 further questions.  
 
1. Would Birmingham City Council consider it appropriate for Planning Officers to discuss the planning implications of an Asset of Community Value nomination with a property owner and if considered appropriate:
 
2. Under what circumstances would Birmingham City Council Planning officers discuss such a nomination?
 
3. As part of the assessment of the Harborne Royalty Trust nomination were local groups consulted and did these include the Harborne BID (Business Improvement District)?
 
4. Can we have copies of any responses please.
 
We awaited their response.
 
The Councils Response

Hi Rob
I hope all is well with you at this time. My apologies for the delay responding to you. Please note the response to the questions you have raised below.
  • Would Birmingham City Council consider it appropriate for Planning Officers to discuss the planning implications of an Asset of Community Value nomination with a property owner and if considered appropriate:  Response: Planning Officers have no authority within the ACV nomination process and have no involvement with the decision making process relating to any nomination. As part of ongoing discussions between Planning Officers and property owners the issue of an ACV nomination may be raised however, any discussion would be restricted to the planning process only and not the ACV nomination.
  • Under what circumstances would Birmingham City Council Planning officers discuss such a nomination? Response: As far as the City is aware there have been no discussions between any planning officer and any nominator relating to an ACV nomination and were these to happen clear direction would be provided in relation to any discussion.
  • As part of the assessment of the Harborne Royalty Trust nomination were local groups consulted and did these include the Harborne BID? Response: There was no consultation with local groups in relation to this nomination
  • Does Birmingham City Council acknowledge that it failed to provide a valid contact for Asset of Community Value nominations at the time of the Harborne Royalty Trust nomination? Response: The nomination was dated 28th October 2019, at this time the BCC website required the nomination to be submitted to Dianne Cull, who had left the authority. Although the City’s website had not been updated the ACV nomination was received and decided upon. Although unfortunate, the fact that the website was not updated in a timely manner has had no impact on the decision made by the City
  • Does Birmingham City Council acknowledge that it failed the requirement that 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 as set out by Paragraph 7 of The Assets of Community Value (England) Regulations 2012. Response: The nomination was dated 28th October 2019. The Officer Group met on 8th January 2020. BCC did not meet the eight week timeframe for this submission and acknowledges this and apologies for this.
  • On what grounds does Birmingham City Council find that the Harborne Royalty Trust has not provided reasonable justification to satisfy the test set out in sections 88 (2) (b) of the Localism Act 2011 as to whether 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? Response: There was limited discussion around this because, simply, the site had not been used within the last five years by the local community and therefore the decision was clear at this time. It was acknowledged that there was no financial assessment within the ACV nomination to support the proposal to return to non-ancillary use within the next five years and therefore the City was not in a position to consider this
·       In reviewing the application and given that the building is currently closed to the public a consideration is whether the test at Paragraph 88 (2) of the Localism Act 2011 is met:
      • there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or 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.
With regard to (a) on what grounds does Birmingham City Council not accept there is clear evidence that the building has previously been used for activities which furthered the social wellbeing or interests of the local community. Response: BCC has used five years as the previous “test” of historic use of a proposed asset – the HRC has not been used for 8+ years by the local community, therefore, for consistency, the five year period was applied and the nomination failed as a result.
With regard to (b) on what evidence does Birmingham City Council consider it unrealistic 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 given the information provided by the Harborne Royalty Trust. Response: The nomination was rejected on the basis of the above response ( use in the last five years ) however, within the nomination the Officer Group did not identify any evidence that the nominators could bring the HRC back in to use as proposed within the five year timeframe.
  • Birmingham City Council considers ‘in the recent past’ to be restricted to 5 years, but such an approach has not found favour with the courts. The effect of this case law is such that the concept of recent is a relative one. On what legal basis has Birmingham City Council determined 5 years to be an appropriate period for Asset of Community Value nominations? Response: The City has used five years as a measure of “recent use” and applied this to the nomination relating to Harborne Royalty Cinema.
  • Has Birmingham City Council accepted any nominations in the past which exceeded the period of 5 years? Response: There is nothing on record to suggest that the City has accepted a nomination where the nominated asset has not been used by the community in excess of five years.
  • Does Birmingham City Council accept that it is not necessary to show that the local community support takes the form of a proposal by the Harborne Royalty Trust to acquire and run the nominated asset? The possibility of a future commercial use supported by the local community is sufficient. Response: This was not considered in relation to the nomination of HRC and therefore cannot be commented on in relation to this nomination.
  • Does Birmingham City Council not accept that the possibility that planning permission might be obtained for another use with less facilities than those proposed by the Harborne Royalty Trust on the site is sufficient to satisfy the condition that there could be a non-ancillary use of the premises in the next five years which furthers the social wellbeing or social interests of the local community? Response: This was not considered as part of the nomination process.
  • As the proposals relate to only part of the site why did Birmingham City Council not consider it possible that within the next five years that all or parts of the building subject to the asset of community value nomination could be restored to use which furthers the social wellbeing or social interests of the local community supported by an enabling development elsewhere on the site? Response: This was not considered as part of the nomination process
  • Did Birmingham City Council as part of its review process take into account proposals by the current owner as part of a public consultation to provide limited community facilities including a cinema supported by an enabling development? Response: No.
  • Did Birmingham City Council as part of its review process of our nomination take into account the current discussions between the owner and senior planning officers in which the current owner stated options from demolition to a full rebuild are currently being discussed and that this statement was made in the presence of a senior planning officer at a public meeting? Response: No
  • Does Birmingham City Council accept that it has not requested any further information or clarification with respect to our asset of community value nomination from the Harborne Royalty Trust other than a list of Members which was provided 27/11/2019? Response: There was no request from the Officer Group for further information other than that requested as per the question referred to. The over-riding factor in this decision was that the asset had not been used by the community in the last five years - the ”recent past”
  • Please confirm if and when a meeting of the ACV Officers group was held to discuss the nomination by the Harborne Royalty Trust and if they compiled a report recommending refusal or acceptance of the nomination? Response: This meeting took place on 8th January 2020.
  • Please provide a copy of the report on which the asset of community value decision was made. Response: This is an internal document to BCC and will not be released.
  • Are  local Councillors consulted on the nomination for listing as an asset of community value and if so what opinion or information has been requested from them with respect to our nomination? Response: Yes, Elected Members were consulted in relation to the nomination and provided with a copy of the ACV nomination document.
 
Another Councils View On A Similar ACV Application

Decision Notice
Delegated Decision
Dover District Council
Decision No: DD19
Subject: APPLICATION TO INCLUDE THE FORMER REGENT BINGO HALL, DEAL ON THE COUNCIL’S LIST OF ASSETS OF
COMMUNITY VALUE
Notification Date: 5 November 2015
Implementation Date: 5 November 2015
Decision taken by: Director of Environment and Corporate Assets
Delegated Authority: Delegation 281 of the Scheme of Officer Delegations (Section 6 of Part 3 (Responsibility for Functions) of the Constitution)
Decision Type: Executive Non-Key Decision
Call-In to Apply? No (Call-in does not apply to Non-Key Officer Decisions)
Classification: Unrestricted
Reason for the Decision:
An application has been received to include the former Regent Bingo Hall, Deal within the Council’s list of Assets of Community
Value
Decision: To include the former Regent Bingo Hall, Deal within the District Council’s list of Assets of Community Value (ACV).
1. Consideration and Alternatives
1.1 Introduction
In determining this application I have been mindful that I need to determine:
Whether the actual current use (not an ancillary use) of the building or other land is one that furthers the social wellbeing or social interests of the local community; AND
whether it is realistic to think that there can continue to be non-ancillary use of the building or other land that will further the social wellbeing or social interests of the local community (whether or not in the same way as the current use).
1.2 Matters considered in reaching the decision
In reaching a decision on these matters I have taken account of the submission made by the ‘Reopen the Regent’ Group who, within their application for the property to be included on the Council’s list of Assets of Community Value, have provided a detailed history of the property and its use since its construction in 1928, noting that the “Regent Cinema opened for business on 9th June 1933 with a seating capacity of 911 and that until the Odeon was built three years later, it was the largest cinema in Deal.”
The nomination also notes that: “ln the mid 1940s the Regent was taken over by ASER cinemas but as attendances fell in the 1950s, and despite an injection of Xrated films, The Regent Cinema closed in 1963 and later became a bingo hall. The bingo club at the Regent Cinema building was closed on 9th January 2009”.
The nomination then records in error that: “in 2010, the council proposed the idea of converting the building into a twin screen cinema, each with 140 seats, with the remainder of the building becoming a community centre or multi-purpose performing arts venue”, but correctly records that the Council sold the property in 2011 noting that the sale included a “condition that the building be preserved and reinstated as a cinema to serve the community”, which is actually a restrictive covenant on the condition that the building be preserved and reinstated as a cinema to serve the community. These errors do not materially affect the nomination.
With regard to the future use of the premises, the nomination makes it clear that should the Regent become available for purchase, the applicant envisages “not only restoring the building to its former glory but also creating the cinema that forms an important part of the town's character and its economy”, noting that: “the site could offer ample space for arts activities as well as a venue for community groups to meet, a space for training and engagement programmes and even as a corporate venue creating multiple streams of income to ensure a sustainable future for the cinema. ln time, it could be an established and renowned venue for a rich arts programme that attracts artists, filmmakers, thought leaders and facilitators from across the country.”
1.3 Review of application and submissions
In reviewing the application the key point to consider, given that the building is currently closed to the public, is whether the test at Paragraph 88 (2) of the Localism
Act 2011 is met:
(a) there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community; and
(b) 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.
With regard to (a) there is clear evidence that the building has previously been used for activities which furthered the social wellbeing or interests of the local community.
As regards whether this can be considered to be ‘in the recent past’ given that the property has been closed for 6 years, I note that some authorities have sought to restrict this to 5 years, but that such an approach has not found favour with the court as for example in the case of Scott .v. South Norfolk DC and Worthy Developments .v. Forest of Dean DC. The effect of this case law is such that the concept of recent is to be a relative one and, in answering the question, it is appropriate for me to have regard to the period of closure relative to the period of use. In this instance, the property had been in use for a period of more than 80 years.
As regards (b) I am content that there is evidence within the nomination to accept that 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.
My assessment of the application as submitted is therefore that:
 The ‘Reopen the Regent’ Group is an unincorporated body and meets the definition of a voluntary or community body with a local connection as set out in Paragraph 89 (2) (b) (iii) of the Localism Act 2011 and Paragraph 5 of the Assets of Community Value (England) Regulations 2012.
The nomination provides clear evidence that the property has a long history of supporting community activities within Deal and has in the recent past furthered the social wellbeing or social interests of the local community.
 The nomination also provides clear evidence that 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.
1.4 Conclusion
Taking all these points into account I am satisfied:
 That the application meets the definition of a community nomination as set out in Section 89 (2) (b) of the Localism Act 2011.
 That the applicant has provided reasonable justification to satisfy the test set out in sections 88 (2) (a) of the Localism Act 2011, which requires the applicant to demonstrate that there is a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or social interests of the local community.
 That the applicant has provided reasonable justification to satisfy the test set out in sections 88 (2) (b) of the Localism Act 2011 as to whether it is realistic to think that there is a time in the next five years when there could be nonancillary 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.
I have therefore decided that the property should be included within the District Council’s list of Assets of Community Value.
2. Any Conflicts of Interest Declared?
None.
3. Supporting Information
None.
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