[2025] UKUT 051 (AAC)

The Council’s submissions were dated 18 July 2024 and were drafted by Mr John Fitzsimons of counsel. Mr Fitzsimons submitted that

“Appellant’s Grounds

10.

By Grounds 1 and 2, the Appellant essentially contends that the Judge misapplied the ‘realistic to think’ test required in s88 of the 2011 Act. The central contention is that the Judge concluded that the “prospects are slim that the Montreal Arms will see any use in the next five years that would further the social wellbeing or social interests of the local community” (§40) but nevertheless concluded it was ‘realistic to think’ 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.

11.

The Appellant describes this conclusion as “perplexing” and notes that a further reason for confusion is that the Judge observed that it is “certainly unlikely” that the Montreal Arms will see any use in the next five years that would further the social wellbeing or social interests of the local community (§37). The Appellant asks rhetorically how can a scenario “be simultaneously deemed ‘certainly unlikely’ and yet ‘realistic’ in the context of the Localism Act 2011”. Finally the Appellant goes on to suggest that the Judge has failed to apply established case law such as Carsberg v East Northamptonshire Council [2020] UKFTT CR-2020-0004 (GRC) and R(TV Harrison CIC) v Leeds School Sports Association [2022] EWHC 130 (Admin).

The Council’s Response

12.

In R(TV Harrison CIC) v Leeds School Sports Association [2022] EWHC 130 (Admin), Lane J reviewed a number of authorities concerning s88(2)(b) and made it clear that:

“the construction of s88(2)(b) adopted by Judge Warren in Gullivers Bowls Club Ltd v Rother District Council and Anor (CR/2013/0009), and consistently followed, is the correct one. The legislation does not require a potential future use to be more likely than not to come into being, in order for it to be realistic” [41].

13.

This paragraph provides the answer to the Appellant’s appeal; a potential future use does not need to be more likely than not to be realistic. There is nothing in the same judgment that contradicts this approach. In particular, despite what is argued by the Appellant, there is nothing to suggest there is a need for ‘positive evidence’ to ‘substantiate the realism’ of a realistic use. As Judge Neville noted in his reasons refusing permission to appeal: “While (like all factual questions) realism must be decided with regard to all the evidence, it is a proleptic assessment. It does not demand, for example, positive evidence of a current proposal that is being actively and realistically pursued” [§3].

14.

Lest there was any doubt as to the approach to be taken, in Banner Homes Ltd v St Albans City and DC [2018] EWCA Civ 1187, the Court of Appeal when considering a case involving the interpretation of s88(2)(a) noted in respect of section 88(2)(b) that:

“The Upper Tribunal rejected Banner Homes’ argument that in referring to what was “not fanciful” rather than what was “realistic” for the purposes of section 88(1)(b) and 88(2)(b), the First-tier Tribunal had made an error of law. The Upper Tribunal also rejected the argument that the First-tier Tribunal’s decision on ‘the future use point’ was contrary to the evidence, holding that what is realistic for the future, is a matter of judgment for the local authority (or on appeal, for the First-tier Tribunal) and is not a matter of ‘veto for the landowner…The Upper Tribunal refused Banner Homes’ application for permission to appeal to the Court of Appeal on “the future use point”, as did I on the papers on 27 February 2017. The application for permission on this Ground has not been renewed” [34-35].

15.

That approach of treating a realistic prospect as something that is simply more than fanciful has been consistently followed by the FtT in numerous cases including in the Roffe case [Roffe v West Berkshire Council CR/2019/0010], where UT Judge O’Connor observed at §35 that:

“In summary, I accept that the future of the Winterbourne Arms is fraught with uncertainty, which is only fuelled by the current uncertain trading conditions for such establishments. It is impossible to identify what the likely future of the premises might be. However, as already indicated, the task for me is not to determine the likely future use … but to consider and assess whether one realistic non-ancillary use of the property would lead to the furtherance of the social wellbeing or social interests of the local community.”

16.

Indeed, in other legal contexts, such as applications for permission to appeal to the UT, the UT will give permission to appeal only if there is a realistic prospect of an appeal succeeding, and not simply a fanciful chance of success, unless there is exceptionally some other good reason to do so: Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538. Similarly, when applying for summary judgment under Part 24 CPR, it is well-established that the court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All ER 91. “Realism” is therefore some prospect that is more than a fanciful prospect, but that is certainly not the same thing as saying it is a likelihood or certainty. There is thus a consistency and rationality to the approach the Courts take to the 2011 Act that is taken elsewhere.

17.

It follows from the above that there is no discernible error of law in the Judge concluding that an outcome is realistic while at the same time describing its prospects as “slim”. The key point is that on the evidence the Judge has concluded that the prospects whilst ‘slim’, and ‘unlikely’, are not fanciful. They are therefore realistic. This has always been the Council’s approach to the listing (§30). That approach complies exactly with what is required under the 2011 Act and is consistent with the case law above. Nothing in any case identified by the Appellant, including in the non-binding authority of Carsberg above, requires a different approach. There is no inconsistency of reasoning.

18.

The Appellant appears to raise concerns about the practicalities around community use, but the Judge considered those practicalities (§38) and reached an evaluative conclusion that was open to him based on the material before him. This conclusion is not something the UT should readily depart from bearing in mind it is a matter of weight rather than law. The Court of Appeal has stressed that it is not the UT’s role to “set the appeal tribunal to rights by teaching them how to do their job of weighing the evidence”: Fryer-Kelsey v Secretary of State [2005] EWCA Civ 511 at [25].

19.

In truth, many of the Appellant’s arguments under Grounds 1 and 2 actually seek to challenge the merits of the Decision. This is because the Appellant would reach a different conclusion on the ‘realistic to think’ test to that reached by the Judge. However, the mere fact that the Appellant would reach a different conclusion does not mean the Judge’s conclusion, as a matter of law, was wrong. The Judge indicated that matters were “finely balanced” but ultimately reached a conclusion that was open to him on the law and on the facts. Accordingly, the UT should not disturb the Decision.”