[2025] UKUT 051 (AAC)

On 21 July 2024 Mr Southall submitted in response on the company’s behalf (again I have added paragraph numbers for clarity):

“Introduction

1.

The respondent's arguments hinge on a broad interpretation of what constitutes "realistic" under s88(2)(b) of the Localism Act 2011. However, their assertion that there is no discernible error of law in Judge Neville’s conclusion of 26th July 2023 is flawed. Describing an outcome as both "slim" and "realistic" without substantive evidence fails to meet the standard of a comprehensive assessment mandated by the Localism Act 2011.

2.

The respondent fundamentally misinterprets the standard of "realistic" as established by the Localism Act.

The Phrase ‘Realistic to Think’

3.

The phrase "realistic to think" is intended to mean that something must be probable, not just possible. It implies that a belief, expectation, or assumption is practical, reasonable, and grounded in reality. This means it is based on observable facts, evidence, or logical reasoning, making it likely to be true or achievable given the current circumstances.

4.

Contrary to thoughts that are overly optimistic, idealistic, or based on wishful thinking, "realistic to think" requires grounding in reality rather than in merely hypothetical scenarios. If interpreted too broadly, almost any scenario can be imagined with some level of realism due to our ability to construct plausible sequences of events. For example, imagining winning the lottery is realistic in the sense that it is a possible event, but it is not probable due to the extremely low odds.

5.

Probable scenarios are those with a high likelihood of occurring based on current evidence, logical reasoning, and typical outcomes. This involves critically evaluating the context, data, and likelihoods rather than merely considering what can be imagined. For a thought or expectation to be considered "realistic," it should align with patterns, trends, or rational analysis that indicate it is more likely to happen than not.

6.

In essence, while many scenarios can be constructed in a realistic manner, "realistic to think" should focus on those that are supported by a high probability, evaluating what is reasonable and practical to expect.

7.

In legal interpretation, the phrase "realistic to think" is not about what could be imagined or is theoretically possible. Instead, it focuses on what is probable, ensuring that expectations are firmly rooted in reality.

"Realistic to Think" in the Context of the Localism Act 2011

8.

In the context of the Localism Act 2011, the phrase "realistic to think" ensures that the assessment of an asset’s value to the community is based on a reasonable probability of continued or future use, rather than mere possibility or speculation.

9.

The phrase "realistic to think" in the Localism Act 2011 was designed to protect only those properties with a genuine and probable prospect of community use. The legislative intent is to prevent speculative listings that could misuse the Act. According to the Localism Act 2011, "realistic" must be interpreted to reflect a reasonable likelihood based on substantial evidence, not just any remote possibility.

10.

It is logically inconsistent to deem a property's future community use as both "slim" and "unlikely" while also claiming it is "realistic to think" it will serve the community. The terms "slim" and "unlikely" inherently suggest a low probability, contradicting the reasonable likelihood implied by "realistic."

11.

If a judge concludes that the prospects of a property seeing any community use in the next five years are slim and describes it as unlikely, it means that the probability of such use is very low. For a belief or expectation to be "realistic to think," it must be grounded in a reasonable likelihood or probability. Since Judge Neville deemed the chances as unlikely, it indicates that there is insufficient evidence or likelihood to support the expectation that the property will serve the community, thus failing the criterion of being "realistic to think."

12.

If a judge argues that "realistic to think" is broad enough to include scenarios with slim or unlikely prospects, they are interpreting the term to encompass a wider range of possibilities. However, the intention behind "realistic to think" is to imply a practical and probable expectation based on evidence and logical reasoning. If the prospects are deemed slim or unlikely, it contradicts the notion of being "realistic" because "realistic" necessitates a higher likelihood and stronger basis in current facts and trends, rather than merely conceivable possibilities.

13.

Therefore, "realistic to think" should be interpreted to mean a reasonable likelihood, not slim or unlikely chances.

Legislative Intent and Context

14.

The wording of the Localism Act 2011 was deliberately chosen to strike a balance between empowering communities and ensuring that only assets with a genuine, realistic prospect of future community use are protected. The phrase "realistic to think" was carefully crafted to require a reasonable likelihood of future use, not just a remote or speculative possibility. This is evident from the legislative intent and judicial interpretations that have emerged since the Act's implementation.

15.

The primary goal of the Localism Act 2011 was to give communities the ability to safeguard assets that genuinely contribute to social wellbeing and community interests. However, the legislation was not intended to be so loose as to allow any and every property to be listed based on mere speculative potential. If "realistic to think" were interpreted to include slim or unlikely prospects, it would render the criteria meaningless and lead to the misapplication of the Act. This would dilute its effectiveness and place an unreasonable burden on property owners.

16.

The Localism Act 2011 requires that for a property to be listed as an asset of community value, it must be "realistic to think" that its use will further the social wellbeing or social interests of the community within the next five years. This implies a need for a reasonable probability, not just a remote possibility. 17. The term "realistic" inherently means having a good chance of being true or achievable. If the prospects of community use are described as slim or unlikely, it indicates a very low probability, which does not meet the threshold of being "realistic." The distinction must be maintained between what is merely possible (anything conceivable) and what is probable (likely to happen).

18.

The purpose of the Localism Act is to empower communities with realistic and achievable opportunities. Maintaining a property on the register based on slim prospects does not align with the practical and actionable spirit of the legislation. A stricter interpretation ensures resources and efforts are directed towards genuinely viable community assets. The phrase "realistic to think" should be interpreted as having a strong probability, not just being more than fanciful.

19.

In conclusion, Judge Neville’s interpretation dilutes the practical standards set by the Localism Act 2011, which seeks to balance community empowerment with realistic expectations. The term "realistic to think" must be interpreted as having a strong probability, backed by evidence and logical reasoning, not just a remote chance.

20.

The interpretation that "realistic" does not mean "more likely than not" should not dilute the term to the point where remote chances are considered realistic. This would contradict the intention of the Act and judicial consistency, which require a balanced, evidence-based assessment. The legislative intent demands a reasonable likelihood for future community use. The judge's finding of slim and unlikely prospects fails to meet this standard, rendering the property ineligible for listing as an asset of community value under the Localism Act 2011. The respondent’s argument relies heavily on interpreting "realistic to think" in a way that stretches the phrase to cover scenarios with slim or unlikely prospects. Describing its prospects as "slim" and "unlikely" should logically exclude it from being realistically expected to serve the community.

21.

The respondent’s argument seems to bend the term "realistic" to include any possibility, no matter how remote, which is not the intention of the legislation.

22.

The respondent’s arguments appear to be overextending the interpretation of "realistic to think." They are bending the realities of the phrase’s meaning to fit their position, which contradicts the legislative intent and practical application of the Localism Act 2011. The Act was designed to protect genuinely viable community assets, not to include properties with only slim or unlikely prospects of future use.

23.

A former pub with "slim" and "unlikely" chances of serving the community again cannot be considered "realistic to think" under the Localism Act 2011. The property does not meet the realistic standard.

Consequence of Broad Interpretation

24.

I respectfully request the Upper Tribunal to consider the broader policy implications of setting a precedent that allows properties with slim and unlikely prospects to be listed as Assets of Community Value (ACVs). This could lead to the over-inclusion of properties, misuse of the Act, and a dilution of its effectiveness.

25.

If the term "realistic to think" is interpreted too broadly, it would lead to the over-inclusion of properties on the ACV list. This would not only misapply the legislation but also create an untenable situation for property owners, who would have no meaningful way to argue against their properties being listed. Such an interpretation could result in virtually every building being imagined to have some community use, thereby undermining the Act's intended purpose and practical application.

26.

Emphasising a more rigorous standard for "realistic to think" aligns with policy goals and judicial consistency. A strict interpretation ensures that only properties with a genuine and probable prospect of community use are protected, maintaining the balance intended by the Localism Act 2011. This approach prevents the Act from being misused and ensures that its protections are reserved for truly viable community assets.

Response to Respondent's Specific Arguments

Argument Breakdown and Counterpoints

27.

Argument 1: The Interpretation of s88(2)(b)

● Respondent's Point: The Respondent cites R(TV Harrison CIC) v Leeds School Sports Association [2022], stating that a potential future use does not need to be more likely than not to be realistic.

● Counterpoint: While Judge Lane in the mentioned case did suggest that potential future use does not need to be more likely than not, this interpretation does not eliminate the need for a grounded basis in reality. There must still be some substantive evidence or a logical pathway demonstrating how the potential use is more than a mere theoretical possibility.

○ Misinterpretation of Judge Lane's Judgment: The respondent's reliance on R(TV Harrison CIC v Leeds School Sports Association is fundamentally flawed due to a misinterpretation of Judge Lane's judgement. While it is true that Judge Lane affirmed that s88(2)(b) does not require a potential future use to be more likely than not to be realistic, the respondent overlooks the critical nuance in his ruling.

○ Nuanced Examination Required: Judge Lane explicitly emphasised that the determination of whether a potential future use is realistic must involve more than a superficial comparison of probabilities. This comprehensive and thorough assessment is mandated by Judge Lane, especially highlighted by the phrase "without more."

○ The Role of "Without More": The phrase "without more" underscores the necessity for additional evidence or factors to substantiate the realism of a potential future use. This requires an in-depth consideration of all relevant evidence to assess the realism of the proposed future use.

○ The Need for Evidential Support: Contrary to the respondent's claim, the phrase "without more" in Judge Lane's judgement implies a need for positive evidence or additional factors to support the realism of a future use scenario. There must be substantive evidence or considerations that make the scenario plausible within the statutory framework.

○ Selective Use of Case Law: The respondent references various cases to support their broad interpretation. However, many of these cases, such as Roffe and Winterbourne Arms, involve specific factual contexts where future use had tangible, albeit uncertain, prospects. By generalising these rulings, the respondent is attempting to apply them to a broader range of situations than they were intended to cover.

○ Uptin House v Newcastle City Council: In this case, Judge Jacqueline Finlay ruled that the property should be removed from the ACV list because it was not realistic to think it would further the social wellbeing or social interest of the local community in the future. This decision underscores the requirement for a reasonable likelihood of future community use, not just a remote possibility.

○ Conclusion: The respondent's argument misinterprets the precedent set by R(TV Harrison CIC by ignoring the requirement for a nuanced and evidence-based assessment of potential future uses. Judge Lane's emphasis on a comprehensive evaluation process indicates the necessity for positive evidence to substantiate the realism of a potential future use. Therefore, the respondent's reliance on a simplified interpretation fails to address the core principles established by Judge Lane and misapplies the legal standard for determining the realism of future uses under s88(2)(b) of the Localism Act 2011.

28.

Argument 2: Realism vs. Fanciful Prospects

● Respondent's Point: References to Banner Homes Ltd v St Albans City and DC [2018] highlight that a realistic prospect is one that is not fanciful.

● Counterpoint: The distinction between 'not fanciful' and 'realistic' still demands a threshold of plausibility. The judgement emphasises that while the future use does not need to be highly probable, it must still be viable within the context of current evidence. Simply asserting that a future use is not fanciful without providing a realistic roadmap undermines the intention behind the legislation.

○ Overreliance on "Not Fanciful" Standard: The respondent repeatedly cites the "not fanciful" standard from cases like Banner Homes Ltd v St Albans City and DC [2018] to support their claim. While this standard does provide some leeway, it does not mean that any remote chance meets the realistic threshold. The respondent is stretching the interpretation to suggest that even slim or unlikely prospects are sufficient, which could lead to the misapplication of the Localism Act.

29.

Argument 3: Application in Other Legal Contexts

● Respondent's Point: Analogies are drawn to other legal contexts, such as appeals and summary judgments, to illustrate that a realistic prospect is more than a fanciful one.

● Counterpoint: While it's true that 'realistic' in legal contexts often means more than fanciful, these analogies also underscore the necessity of a sound evidentiary basis. In Swain v Hillman, for example, a claim must be grounded in reality with supporting facts, not mere speculation.

○ Contradiction in Terms: The key issue here is the inherent contradiction in deeming a scenario as both "slim" and "realistic." The term "realistic" implies a level of plausibility and likelihood that goes beyond mere theoretical possibility. If an outcome is described as having "slim" prospects and is "unlikely," it suggests that the scenario is bordering on the improbable. To argue that such a scenario is not "fanciful" and therefore "realistic" stretches the definition of realism beyond its logical limits.

○ Logical Consistency and Legal Standards: To maintain logical consistency and adherence to legal standards, an outcome described as having slim prospects should not be simultaneously deemed realistic without compelling evidence. The respondent’s assertion that there is no inconsistency in reasoning ignores this fundamental principle. By conflating slim prospects with realism without adequate evidential support, the Judge’s conclusion deviates from the rigorous evaluation process required under the law.

○ Application to Current Case: In our case, the property has been described as having "slim" and "unlikely" prospects for future community use. This description inherently implies a low probability, which cannot satisfy the "realistic to think" standard established in Swain v Hillman. Just as in Swain v Hillman, where the court requires a realistic prospect to carry some degree of conviction, the slim and unlikely prospects of our property do not carry such conviction.

Conclusion: The respondent's assertion that there is no discernible error of law in the Judge's conclusion is flawed. The contradiction in describing an outcome as both "slim" and "realistic" without substantive evidence fails to meet the standard of a comprehensive, evidence-based assessment as mandated by the Localism Act 2011 and relevant case law. The necessity for positive evidence or additional factors to substantiate the realism of a potential future use underscores the misapplication of the legal standard in the Judge's decision.

Summary of Appeal and Arguments

30.

This appeal challenges the respondent's interpretation of "realistic to think" under s88(2)(b) of the Localism Act 2011, which led to the listing of my property as an Asset of Community Value (ACV). The central issue is the respondent’s broad interpretation, which allows properties with slim and unlikely prospects of future community use to be listed as ACVs, contrary to the legislative intent and judicial precedents.

1.

Interpretation of s88(2)(b):

○ The respondent misinterprets R(TV Harrison CIC v Leeds School Sports Association by failing to recognise that "realistic" implies a reasonable likelihood, not just theoretical possibilities. The requirement is for a comprehensive and logical assessment.

2.

Realism vs. Fanciful Prospects:

○ The distinction between 'not fanciful' and 'realistic' requires a threshold of plausibility grounded in current understanding. The respondent's overreliance on the "not fanciful" standard risks misapplying the Localism Act by including remote chances as realistic prospects.

3.

Application in Other Legal Contexts:

○ Analogies to other legal contexts underscore the necessity of a sound logical basis. The inherent contradiction in deeming a scenario both "slim" and "realistic" highlights the need for a logical basis for future community use.

4.

Practicalities:

○ Evaluative conclusions must be based on a robust analysis of practical considerations. The lack of consideration of relevant practical issues undermines the validity of the Judge's conclusion.

31.

The appeal seeks to ensure that the term "realistic to think" is interpreted in line with the legislative intent and judicial precedents, requiring a reasonable and substantial likelihood of future community use. The current listing of the property as an ACV based on slim and unlikely prospects does not meet this standard and should be reconsidered.

Conclusion

32.

The appellant respectfully requests that the Upper Tribunal orders the removal of the property from the ACV register. This action is sought on the grounds that the current listing does not meet the legislative standard of "realistic to think," given the slim and unlikely prospects for future community use.”

Neither party sought an oral hearing of the appeal and I am satisfied that I do not need to hold one in order to determine the matter.