Agenda item

To review the listing of the Brunswick House Allotments under the Localism Act 2011 and the Assets of Community Value (England) Regulations 2012 following a request for a review by the owner.

That Cabinet -

(a)     notes the change in circumstances at Brunswick House Allotments since its decision in January 2015, including Mistley Parish Council’s approval of the removal of the Asset of Community Value listing and consequently agrees to undertake a review;

(b)     agrees that following the obligations of the Section 106 planning agreement, including a provision to transfer revised allotments, it is not realistic that the original land nominated will further the social well-being or social interests of the local community in the future; and

(c)     subsequently, the criteria required in Section 88 Localism Act 2011 is no longer satisfied and that the land be removed from the list of Assets of Community Value.

Councillor G V Guglielmi declared a personal interest in this item insofar as he personally knew the owner of the land in question and also members of the  Mistley Allotment and Leisure Gardener Association.

There was submitted a report by the Portfolio Holder for Health and Education, which sought to review the listing of the Brunswick House Allotments, Mistley under the Localism Act 2011 (“the Act”) and the Assets of Community Value (England) Regulations 2012 (“the Regulations”) following a request by the owner for such a review.

Cabinet was reminded that in 2014 a valid nomination to register an asset of community value had been received from Mistley Parish Council in respect of Brunswick House Allotments, Mistley. The Nomination had stated that the land was until recently [in relation to the nomination] cultivated and maintained as allotments and had been so for 27 years until the current owners of the land had given the allotment users (collectively known as the Mistley Allotment and Leisure Gardener Association) notice to quit in December 2013.  The Mistley Allotment and Leisure Gardener Association was made up of local residents, many of them pensioners who had enjoyed use of the allotment site for many years and had established themselves as part of the local community.  The position of the allotments was such that local residents could easily walk to the site from their homes nearby. 

The Nomination had stated that should the land come up for sale the Association would like the opportunity to bid for the allotment site and had indicated that they would raise the necessary funds.

Cabinet recalled that, in January 2015, it had resolved, having taken into account the evidence provided that the land nominated, (shown edged and dotted pale blue on the plan appended at Appendix A to the Portfolio Holder’s report), did meet the criteria set out in Section 88 of the Localism Act 2011 and had added it to the list of Assets of Community Value.

It was reported that on 1 December 2015 planning application 15/01787/FUL had been validated, for 25 bungalows.  The application had included residential use on the area hatched red on the aforementioned plan together with an access road (partly) shown hatched black on that plan. On 21 August 2017 the Council had entered into a Section 106 planning agreement with the owners of the land pursuant to that application, providing for the following obligations:

1.       The transfer of one dwelling as affordable housing;

2.       The setting out and transfer of revised allotments in two phases as shown hatched green and hatched yellow on the aforesaid plan; and

3.       The creation and transfer of public open space, shown with the green grass symbols on the aforementioned plan.

Cabinet was advised that on 7 September 2017 the Council had granted planning permission for 25 bungalows subject to certain planning conditions and including the aforementioned Section 106 agreement.

Cabinet was informed that the owner now wished to sell the land to a developer who would be bound by the Section 106 agreement but that they could not do so without triggering a moratorium of at least six weeks because of the Asset of Community Value Listing. The owner had therefore requested a review. The Council was required to consider only whether the asset met the criteria set out in the Section 88 of the Localism Act 2011.

It was reported that Officers had written to Mistley Parish Council seeking their comments on the proposed review. The Clerk to that Parish Council had subsequently confirmed that it did not oppose the removal of the listing, in the light of the obligations contained within the Section 106 planning agreement.

Members were advised that taking the above into account it was considered that the area of land nominated did meet the criteria set out in Section 88 of the Localism Act 2011, namely:

“(2) The main use of the land or building furthered the social wellbeing or social interests of the local community in the recent past…”

However, in the light of the planning permission and the Section 106 agreement Officers consider that it was not “…realistic to think that this could again happen.” Accordingly it was the Portfolio Holder’s recommendation that the criteria for listing were no longer met and that the land should be removed from the list of Assets of Community Value.

Following a question raised by the Leader of the Labour Group and at the request of the Leader of the Council, the Corporate Director (Corporate Services) undertook to recheck the legal position to ensure that the Secretary of State’s approval was not required given that the land in question had been used as allotments.

Having considered the information in the report and the advice of Officers:

 It was moved by Councillor McWilliams, seconded by Councillor Skeels Snr. and:-

RESOLVED that Cabinet -

(a)       notes the change in circumstances at Brunswick House Allotments since its decision in January 2015, including Mistley Parish Council’s approval of the removal of the Asset of Community Value listing and consequently agrees to undertake a review;

(b)       agrees that following the obligations of the Section 106 planning agreement, including a provision to transfer revised allotments, it is not realistic that the original land nominated will further the social well-being or social interests of the local community in the future; and

(c)       subsequently, the criteria required in Section 88 Localism Act 2011 is no longer satisfied and that the land be removed from the list of Assets of Community Value.

NOTE:  In accordance with the provisions of Council Procedure Rule 19.5, Councillor G V Guglielmi requested that he be recorded in the minutes as having abstained from voting on Councillor McWilliams’ motion.