Plus a couple of historic applications.

The Asset of Community Value (Fox and Hounds) decision notice can be found on the East Knoyle Community Website www.east-knoyle.co.uk

 

 Our Ref: ACV/2025/00003 

Enquiries to: David Redfern 

Date: 21 July 2025 

Decision on Application to Review Decision to list The Fox And Hounds Public House, The Green, East Knoyle, Salisbury, SP3 6BN as an Asset of Community Value 

Mr & Mrs Andrew & Doreen Knight in an email dated 28 May 2025 gave notice that they were seeking a review of the decision of the Council dated 9 May 2025 (the Decision) to list the property known as The Fox And Hounds Public House, The Green, East Knoyle, Salisbury, SP3 6BN (“the Property”) as an Asset of Community Value. 

Mr & Mrs Knight at the time of seeking the review also requested an oral hearing. The Oral review hearing was held on 17 July 2025 pursuant to section 92 of the Localism Act 2011 (the 2011 Act) and pursuant to the Listing Review Hearing Procedure that the Council has adopted under section 92 (5) of the 2011 Act. 

I am the Senior Council Officer designated under the Council’s listing Review Hearing procedure to undertake this review. At the review hearing Mr & Mrs Knight attended in person. Mrs Waind, the Council Officer who made the original decision, was also in attendance but remotely. 

As part of my Review I considered the following documents: 

• Original Decision of Fiona Wiand dated 9 May 2025 
• Nomination Form submitted by East Knowle Parish Council dated 31 March 2025. 
• Representations from yourself dated 24 April 2025. 
• Your request for a review with supporting statement dated 28 May 2025. 

 

I also heard and have included in my considerations: 

• Oral representations from the Council Officer. 
• Oral representations from Mr & Mrs Knight 

 

The Law 

The ACV Regime is contained in Chapter 3 of Part 5 of the 2011 Act. The 2011 Act applies to England and Wales, and (for England only) is supplemented by the Assets of Community Value (England) Regulations SI/2012/2 (the 2012 Regulations). 

The regime has two main aspects. It provides a methodology for community groups to nominate assets which they believe hold a community value, and if so identified creates a breathing space (a moratorium) if the owner decides to sell it to give community groups a right to bid on the asset. There is no compulsion on the owner to sell it nor does it give first refusal rights to the community group. 

Section 87 of the 2011 Act requires this Council to maintain a list of assets within its administrative area which it determines are assets of community value. 

Section 88 (1) & (2) of the 2011 Act sets out the tests that the Council must apply to determine whether an asset is of community value: - 

(1) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority's area is land of community value if in the opinion of the authority— 

 

1. 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 

 

1. (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. 

 

(2) For the purposes of this Chapter but subject to regulations under subsection (3), a building or other land in a local authority's area that is not land of community value as a result of subsection (1) is land of community value if in the opinion of the local authority— 

 

1. 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 

 

1. (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. 

 

I note that under section 88 (6) social interests includes cultural, recreational and sporting interests. 

Recent use 

In this case the business was closed on 8 April 2025 after the nomination was received but just before the listing decision and therefore there is no actual current use. 

It is therefore appropriate that I consider this review not only having regard to the tests in section 88(1) which was the tests applied at the time of the original listing decision but also have regard to the tests contained within section 88 (2) which relates land or buildings where there has been in the “recent past” non ancillary use which furthered the social wellbeing or interests of the local community. 

There is no definition in statute or in guidance of the term ‘recent past’ set out in section 88 (2). 

In a policy statement issued by the then DCLG in September 2011 around the time of the introduction of the ACV regime they stated 

…our current view is that we will leave it to the local authority to decide, since “recent” might be viewed differently in different circumstances. For example “recent” might be taken as a longer period for instance for land which was formerly used by the public until the Mod took it over for live ammunition practice, than for a derelict building. Ten or even twenty years might be considered recent for the former but not the latter” 

There is limited case law on the point. There is the case of Edgar v Bournemouth Borough Council (unreported, October 2013) (an unsuccessful challenge to a decision to not list a site as an ACV). 

That decision is of limited assistance because whilst the Court accepted that a comment by Bournemouth in its decision that “recent” should as a general rule be regarded as more akin to a two year, rather than a five year, period it did not invalidate the overall decision the reason for that was that the Council had provided reasons for deciding to adopt that approach (i.e. They hadn’t acted irrationally) and had also recognised that it should exercise its discretion in each case and should not be fettered by a blanket or fixed policy. In other words the final decision as indicated in the Governement guidance will rest on the facts of the case. 

A standard dictionary definition of “recent” is having happened, begun, or been done not long ago; belonging to a past period comparatively close to the present (Oxford online dictionary). 

Accordingly, in determining whether the land and building have been used to further the social wellbeing or social interests of the local community in the recent past the Council has to consider all of the facts and circumstances and determine what is the recent past. 

Realistic prospect of use 

Under section 88 (2) (b) an asset must also face a realistic prospect of reuse that will further the social wellbeing or social interests of the community (community benefit) in the next five years. 

Again there is no definition in statue or guidance as to what is realistic and similarly there is limited case law on this point 

A standard dictionary definition is accepting in a sensible way what it is actually possible to do or achieve in a particular situation. 

I note that in the land owners submissions there is considerable emphasis on the challenges facing all of the hospitality industry and in particular facing the pub business that had operated from the land and buildings. 

In Henthames Ltd v South Oxfordshire District Council (First Tier Tribunal (General Regulatory Chamber ) (5 August 2016) Judge Jacqueline Findlay held 

There is no legal requirement for the nominating body or the respondent to produce a worked out business plan. It is not necessary for KHA to provide “factual evidence 

to suggest that they would be able to take on this facility” as suggested by the appellant in the letter of 15 March 2016. It is sufficient to be realistic” 

Accordingly, in determining whether within the next five years there is a realistic prospect of use of the land and buildings which would further the social wellbeing or social interests of the local community the Council has to consider all of the facts and circumstances. 

I note that it is not just the use that the land and buildings had previously been used for that the Council must consider the words in the parathesis in the legislation, namely “(whether or not in the same way as before)” emphasizes that I must also consider any realistic prospect of other potential community benefits that may flow from use of the land and buildings. 

The Facts 

The Council received a duly completed nomination form from the East Knowle Parish Council dated 31 March 2025 

In summary the nominee says that there are several groups and clubs that meet regularly at the Fox and Hounds and listed out nine specific community groups and gave examples of the types of meetings and regularity of those meetings at the property. The nomination also referred to the fact that the pub also hosts wakes, birthday parties and other celebrations arranged by the community. 

In response Mr & Mrs Knight says: 

1. The Pub closed on 8 April 2025 when the leaseholder did not renew the lease and that the pub had experienced a significant decline in business. They also emphasized that like all in the hospitality industry there are increasing costs and with less staff available to operate the business. That there is an aging population in the village which means that there are less patrons and that a key factor in the lack of profitability of a pub being run in the premises is the lack of accommodation. 

 

1. Mr & Mrs Knight also questioned whether the Nomination had been validy made on the basis that there were not 21 signatories to the nomination agreement. 

 

1. Mr & Mrs Knight also commented on the fact the listing of the land and buildings is likely to make it harder for them to dispose of the land and buildings and that when they purchased the property there were no such restrictions and whilst they could maintain outgoings for a short period of time it is unfair that at this time of their life (in retirement) that they will be obliged to maintain the land and buildings without any effective way to dispose of them. 

 

Discussion 

1. The heart of the issue in this case and the reason that Parliament introduced the ACV regime is an aspect that faces a number of small rural communities within the United 

 

 

Kingdom and in Wiltshire. Namely, as services that used to maintain the community dwindle what should happen to the land and buildings that those community services once operated from. If the land and buildings are no longer available for such community uses then it becomes that much harder for those services to be re-established should they be needed in the future. 

 

1. However, the ACV regime is not about securing that use. It is rather about identifying past or current community use and then about identifying whether there is the potential for future community use. If, after consideration of all the facts, these two tests are established in the affirmative then a system is put in place to give community groups the opportunity to raise funds and to compete on the open market to secure the land and buildings for such use (the right to bid). 

 

1. In coming to any decision one must always bear in mind the Land-owners rights as well as the public interest of the community to not lose the opportunity for the right to bid for a community asset. 

 

1. The regime should not be used to put a land-owner in a disadvantaged position whereby they are obliged to consider selling the land and buildings at below market value. Similarly, the regime should not be used by land-owners to close a business down and wait out the time and then say there is no community use. 

 

Property used for community benefit. 

1. In this case I am satisfied that up till 8 April 2025 the property was being used to further the social wellbeing or social interests of the local community and that such use was not an ancillary use. 

 

1. The Parish Council in their nomination form identified a significant number of community activities which were carried on the property which would further the social wellbeing or social interests of the community. 

 

1. In their submissions, both written and oral Mr & Mrs Knight do not appear to dispute these activities were undertaken at the property. In their oral submissions they did seem to accept that the activities were undertaken but that these activities supported their argument about the lack of viability of the property being used as a pub in the future. Mr & Mrs Knight indicated that over time the pub business had to impose a cover charge on many of these activities due to the business needing to cover staffing and running costs which were not being met from food or drink sales from the activities. 

 

1. Whilst issues of viability may be relevant to the second stage that I will need to consider namely the reasonable prospect of future non ancillary use that will further the social wellbeing or social interests of the community they are not relevant to this first stage namely whether there is actual or recent past use that furthers the community benefits. 

 

 

1. I am satisfied that up to 8 April 2025 there was a current non ancillary use and with the short time between 8 April 2025 and 17 July 2025 there is sufficient recent past non ancillary use of the property which furthered the the social wellbeing or social interests of the community. 

 

1. Therefore the first leg of section 88 (1) (a) or 88 (2) (a) is satisfied. 

 

Furure non anciliary use: 

1. In the second leg of the test, I have to consider 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 as required in sections section 88 (1) (a) or 88 (2) (b). 

 

1. I remind myself that the legislation is focused on use of the land and buildings rather than on the business that was being operated in the land and buildings. 

 

1. I note that Mr & Mrs Knight has confirmed that the land and buildings have been placed on the market for sale as I understand it from September 2024. Mr & Mrs Knight confirmed that to date the premises have not sold. I have taken, by inference that Mr & Mrs Knight are suggesting that the lack of a sales coupled with the difficulties in the hospitality industry is evidence of a lack of realistic expectation of future community use. 

 

1. However, I note that in the brochure that Mr & Mrs Knight provided to me at the hearing under the heading “trade” it states: - 

 

The Fox & Hounds has been run under the ownership of the same tenant for 20 years and is now available with vacant possession with some fixtures and fittings remaining. The pub has been a destination venue for dining, as well as benefitting from a loyal following from the local community. The owner is looking at options to convert the skittle alley to add letting rooms and there are a number of opportunities to expand the pub’s operations 

1. This would suggest that 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 and therefore the test in section 88 (1) (a) or 88 (2) (b) of the Localism Act 2011 has been satisfied. 

 

Decision 

1. As the tests in both 88 (1) (a) or 88 (2) (a) and 88 (1) (b) or 88 (2) (b) of the Localism Act 2011 (depending on whether we treat the use as acutal or recent past) have been met the property should be listed as a ACV. 

 

1. Should a relevant disposal occur during the next 5 years and the landowner incur loss 

 

 

or expense in relation to the land which would be likely not to have been incurred if the land had not been listed; the landowner will be entitled to claim compensation from Wiltshire Council. If the landowner believes this to be the case, claims for compensation must be made to Wiltshire Council in writing, detailing the compensation sought for each part of the claim and the related evidence, before the end of 13 weeks after the loss or expense was incurred (or finishes being incurred). 

 

1. The Community Right to Bid: Non-statutory advice note for local authorities published by the Government provides further information on this last point. 

 

Additional comments 

Jurisdictional Issues 

1. During the oral hearing Mr & Mrs Knight asked why there were not 21 signatories to the nomination form. It was explained verbally by the Council’s legal advisor that the regulations required a nomination form to be submitted by either a Parish Council or if by a non-incorproated community interest group by 21 members. For the sake of completeness I now set out the detail in respect of that verbal response. 

 

1. Under section 89 (1) of the Localism Act 2011 land can ony be included in the list if it is in response to a community nomination from an appropriate body. 

 

1. Under section 89 (2) a community nomination can only be made in England by a parish council in respect of land within its area or by a person that is a voluntary or community body with a local connection. 

 

1. Under Regulation 5 (1) (b) of The Assets of Community Value (England) Regulations 2012 (the 2012 Regulations) a Parish Council is designated a voluntary or community body. Under 5 (1) (c) of the 2012 regulations an unincorporated body whose members include at least 21 individuals can also be a voluntary or community body. 

 

1. Under Regulation 6 (d) of the 2012 Regulations the community nomination form must include evidence that the nominator is eligible to make a community nomination form. Therefore the space for 21 signatories on the nomination form is so that an unincorporated body can provide the evidence that it has 21 members. This is set out in the comments box on the nomination form which is headed “Eligibility to Nominate”. 

 

1. For a Parish Council nomination, all that is required is for a representative of the Parish Council to confirm that the nomination is from the Parish Council in which the land the subject to the nomination is situated and that the information provided is accurate and complete. 

 

1. If the nomination form does contain this information then a valid nomination has been received by the listing authority. Any issues of disagreement between individual Parish Council members is not relevant to the ACV process but is rather a democratic 

 

 

issue for the Parish Council. 

 

Unfairness of the legislative provisions: 

1. Mr & Mrs Knight have expressed their view that consequences of listing of the property as an Asset of Community Value would impose an unfairness on them as land owner in that it creates difficulty and possibly delay in disposing of an asset and that this difficulty or delay was not part of the regime when they purchased the asset. 

 

1. In the ACV legislation Parliament has put in place a regime that balances land owner’s and community interests. Within the wider regime there is other provisions which may ameliorate any impact of the regime on a specific landowner (see next comment). However in determining whether a property should be listed the Council is obliged to ensure that due process is followed. 

 

1. Therefore,whilst Mr & Mrs Knight’s concerns are genuinely held and understandable the fairness of the underlying regime put in place by Parliament is not a factor which the Council can take into account in determining whether a property should or should not be listed. 

 

Affect on Land owners Rights: 

1. I note that Mr & Mrs Knight were concerned that if the Property is listed they would be stuck with a property in which no sales could be effected until the listing was lifted. 

 

1. The Council, as decision maker for whether to list or not, is acting in a quasi judicial function as to whether to list or not and therefore it would be inappropriate for the Council or any officers to give any advice on this aspect. However, Mr & Mrs Knight may wish to consider the sections headed “Moratorium” and “compensation” in the Government’s non statutory advice note in which I have provided a link at paragraph 18 above and seek their own legal advice on these aspects. 

 

David Redfern 

Director of Leisure, Culture & Communities 

Email: [email protected]