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Tribunal backs decision to designate overgrown land as asset of community value

The First-Tier Tribunal has upheld Winchester City Council’s decision to allow an area of overgrown land to be designated as an asset of community value.

Winchester has designated the land at the request of Oliver’s Battery Parish Council.

The land’s freeholder, a company named Oliver’s Battery, said the 46-acre site was in use for agriculture and not for the public’s general recreation.

But in Oliver's Battery Ltd v Winchester City Council & Anor [2019] UKFTT CR-2019-0001 (GRC) Judge Moira Macmillan found for the council. The company challenged the designation on the grounds that any use of the land by the local community was ancillary to it being agricultural land because it largely concerned only use of a public right of way.

It argued that it intended in future to seek planning consent for homes on the land though accepted that two footpaths in addition to the right of way were shown on its plans for this.

The judge noted that since the land was set-aside rather than used for agriculture public access had broadened beyond the right of way to wider recreational purposes that furthered the social wellbeing of the local community. 

Judge Macmillan said: “I find that the activities for which the land is used by the local community…are clear examples of the recreational and sporting interests envisaged by s.88(6) of the 2011 [Localism] Act.

“These activities are an actual current use of the land and further the social wellbeing and social interests of the community."

The judge added: “I have concluded that it can no longer be said that agricultural use of the land is the main or primary use, such that the use by the local community must be ancillary. The evidence supports a view that the use of the land has changed over time as a consequence of its having been set-aside as agricultural land.

“The public’s use of the land is now, in effect, use as a recreation field. It cannot be said that this is incidental to the public’s use of the public right of way.”

It was uncertain whether planning consent for homes would be granted and so “not fanciful” to conclude that recreational use might continue.

Mark Smulian

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