[2025] UKUT 051 (AAC)

Judge Neville reviewed the case law, particularly the decision of the High Court in R(TV Harrison) at [28-29] and considered at [37] that the evidence in the case before him was finely balanced and that there were points in favour of both of the rival contentions.

In favour of the Council’s contention he found at [31] that the case for inclusion was supported by there being a real chance that change of use to residential accommodation would be refused and by priority being given to any community use (whether or not as a pub). He also took into account the other pub, “The Bevy”, which had benefited from community ownership to overcome its unattractive commercial prospects. He also set out the Council’s reason for the inclusion of the pub in the list at [30].

Against that he considered that the chance of community services was not increased by the offer of services from the FMA, whose lack of engagement with the appeal made it unlikely that their prior activism would turn into future action, a conclusion which he reiterated in [36], where he found that FMA’s lack of present involvement made it unlikely that there was any current real proposal to purchase and operate the Montreal Arms.

In favour of the Appellant’s position he took on board at [32] the contentions put forward by Mr Southall in relation to the pub’s parlous financial situation when it closed, the ned for significant renovations and repair, problems applying for a new premises licence owing to the density of local residential dwellings and scarce parking nearby. At [33-34] he also took account of the evidence of Mr Walker, which he found to be frank and grounded in practicality, although in [38] he also found it to be myopic about what a pub would look like.

He concluded at [39] that the rival structural engineering reports did not disclose that any major works had to be concluded before the building could open as a pub at all.

It was in that context that he decided that

“37.

The evidence is finely balanced, and 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. I nonetheless reach the conclusion that it is realistic.

38.

… If the question posed was whether the Montreal Arms could be such a pub [as a successful commercial enterprise] in the next five years, I would agree that it is unrealistic. Yet the downturn in fortunes for tied houses and chain pubs has also seen opportunities for smaller, independent and even hobbyist establishments. While the Montreal Arms was unprofitable before its closure, it still did not close until forced to do so by the pandemic. Just as it was sustained then by a landlady who was happy to treat it just as somewhere to live, it is realistic to think that it might likewise be opened in the future by a person or group that does not need it to turn a profit, or even to pay its own way. Not only might a community group or individual be willing to bear a pub as a loss-making venture, some pubs are opened as a retail outlet for micro and small breweries. While these face similar challenges to the larger chains of the sort Mr Walker describes, they have been less hard hit. Likewise, some small and independent pubs strike deals with local takeaways and restaurants rather than run their own kitchens – the notion that a kitchen is necessary to survive is not representative of the many and varied pubs operating in the UK. There is a realistic chance that the use I have described would add value to the community distinct from that offered by other nearby pubs and the local church hall. While ‘The Bevy’ has faced existential commercial obstacles, it has still operated for a while – that is all s.88(2)(b) requires.

39.

… if Dragonfly is unsuccessful in obtaining planning permission for residential use then the medium and long term works will be squarely reflected in a reduced purchase price. If facing significant delay in achieving its ambitions Dragonfly might equally decide to cut its losses by renting out the pub to the type of operator I describe in the above paragraph, even though it has set its face against it in this appeal. I am unwilling to accept in the absence of clearer evidence that obtaining a premises licence would be impossible without unrealistic additional renovations.

40.

In conclusion, while 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, it is still realistic to think that it could.”

The essence of the Appellant’s argument is that, because Judge Neville found at [37] that it was unlikely that the Montreal Arms would see any use in the next five years which would further the social wellbeing or social interests of the local community and at [40] that the prospects were slim that the Montreal Arms would see any use in the next five years which would further the social wellbeing or social interests of the local community, he therefore fell into error in finding that it was still realistic to think that it could.

Instead, as it is put in the grounds of appeal and the reply, the “realistic to think” test necessitated the evaluation of the likelihood that the asset would be employed in a manner conducive to the community’s welfare within the stipulated time period, that the Tribunal failed to establish the viability of a compliant scenario and that the “realistic to think” test was intended to mean something which must be probable, not just possible (“probable scenarios are those with a high likelihood of occurring” or “a strong probability”).

It is, however, clear from the authorities which I have set out at some length and the principles which I have distilled from them at paragraph 19 above that the test under the 2011 Act does not require findings of evaluation of likelihood, of commercial viability or of probability.

On the contrary, the language of the statute is consistent with a number of realistic outcomes co-existing, the test is a low one, but there must be at least some indication that the aspirations are realistic, referring to a test of “not fanciful” as a synonym for “realistic” is not an error of law and what is “realistic” means a sensible and practical idea of what can be achieved or expected, without concentrating on hard-headed commercial or financial analysis and a detailed business case is not required.

The Tribunal did not misapply the decision in R(TV Harrison) at [41] nor did it fail to carry out a nuanced and evidence-based assessment of potential future uses. On the contrary, that is precisely what it did. Having carried out that nuanced and evidence-based assessment it found that, while the prospects were slim that the Montreal Arms would see any use in the next five years which would further the social wellbeing or social interests of the local community, it was still realistic to think that it could. I can see no error of law in that conclusion. The short point is that it is the Appellant’s contention that the words “realistic to think” require “a reasonable and substantial likelihood of future community use” and that is not the test.

I do not accept that on the material points in issue the decision in Carsberg says anything different from the other cases; it is evident from [13] that Judge Findlay was following the established jurisprudence, not in any sense diverting from it.

Nor do I accept that the interpretation of the legislation which I have set out above has the consequence that it would create an untenable situation for property owners who would have no meaningful way to argue that their properties should not be listed. It will all depend on the facts of the individual case. Carsberg fell on one side of the line, as did cases such as Uptin House; this case falls on the other and it is inevitable that some cases, such as this one, will be finely balanced. In short, the Tribunal Judge considered the statutory framework and the decided cases, evaluated the evidence in the light of the statute and the cases and reached a decision which he was entitled to reach.

As Lewison LJ said in Volpi v Volpi [2022] EWCA Civ 464

“2.

The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

i)

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii)

The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

I re-emphasise the point that it is not for an appellate tribunal to come to an independent conclusion as a result of its own consideration of the evidence. Whether I would have reached the same conclusion as Judge Neville is not the point, although I am far from saying that I would not have done. The question for the Upper Tribunal is whether the judge's finding that, whilst it was unlikely that the Montreal Arms would see any use in the next five years which would further the social wellbeing or social interests of the local community, nevertheless it was still realistic to think that it could, was rationally insupportable. In my judgment it was not. In my judgment the Judge was entitled to reach the conclusion which he did. I therefore dismiss the appeal.

I am also satisfied that the Tribunal provided adequate reasons for its conclusions. The test for adequacy of reasons in a tribunal decision applies across tribunals and courts more generally. I remind myself of a couple of authorities from the case law which are cited less often, but which helpfully assist in providing a flavour of the approach required.

The first is the decision of Mr Commissioner Rowland (as he then was) in a social security case, CIB/4497/1998:

“5.

It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal’s reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved ... Those who assert that a tribunal’s reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while “a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all”, that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.”

The second decision is from the employment tribunal context, but again the principles governing appellate review of adequacy of reasoning in tribunals are common across the board. They were helpfully expressed as follows by the Employment Appeal Tribunal (“EAT”, Elias J presiding) in ASLEF v Brady [2006] IRLR 576 at para [55] (so for “EAT” read “Upper Tribunal” and for “ET” read “First-tier Tribunal”):

“The EAT must respect the factual findings of the Employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not ‘use a fine toothcomb’ to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.”

The test for adequacy of a tribunal’s reasons does not exist in isolation. It has to be applied in the context of the principles more generally governing appellate review of first instance fact-finding specialist tribunals. Upper Tribunal Judge Wikeley set these out in his recent decision in NC (dec’d) by JC v Secretary of State for Defence (AFCS)[2024] UKUT 170 (AAC):

“The role of appellate review in appeals from a specialist first instance jurisdiction

36.

The jurisprudence on the standard of appellate review exercisable in an error of law jurisdiction demonstrates that any challenge which turns on a specialist tribunal’s treatment of the facts needs to be approached with a degree of circumspection. Three interlocking themes or principles are evident in this jurisprudence. The first is that appropriate recognition must be accorded to the first instance tribunal as the primary fact-finder. The second is that due note should be taken of the expertise of a specialist tribunal. The third is that the tribunal’s reasons for its fact-finding need to be at least adequate, but not necessarily optimal.

37.

The significance of the first of this trilogy of principles is captured in the following passage from the judgment of Carr LJ (as she then was) in Clin v Walter Lilly & Co Ltd [2021] EWCA Civ 136, dealing with grounds of appeal that amounted to challenges to the trial judge’s findings of fact and/or evaluative findings:

‘83. Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include:

i)

The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed;

ii)

The trial is not a dress rehearsal. It is the first and last night of the show;

iii)

Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case;

iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping;

v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence);

vi)

Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. 

… 

85.

In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:  

i)

Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;

ii)

Where the finding is infected by some identifiable error, such as a material error of law;

iii)

Where the finding lies outside the bounds within which reasonable disagreement is possible.  

86.

An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.  

87.

The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.’

38.

The second principled theme, picking up on that final observation, is exemplified by Lady Hale’s judgment in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49. Giving guidance in the context of specialist tribunals (that was an asylum case, but the same principle applies here too in an appeal from the WPAFCC), Lady Hale held as follows:

‘This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.’

39.

The third theme concerns the standard required for the adequacy of reasons. The relevant authorities were reviewed recently by a three-judge panel of this Chamber, of which I was a member, in Information Commissioner v Experian Ltd [2024] UKUT 105 (AAC):

‘63. There are many appellate authorities on the adequacy of reasons in a judicial decision. In this chamber of the Upper Tribunal, the principles were summarised in, for example, Oxford Phoenix Innovation Ltd v Information Commissioner & Medicines and Healthcare Regulatory Agency [2018] UKUT 192 (AAC) at [50-54]. At its most succinct, the duty to give reasons was encapsulated at [22] in Re F (Children) [2016] EWCA Civ 546 (one of the authorities cited there), as follows:

‘Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable.’

64.

As is well-known, the authorities counsel judicial “restraint” when the reasons that a tribunal gives for its decision are being examined. In R (Jones) v FTT (Social Entitlement Chamber) [2013] UKSC 19 at [25] Lord Hope observed that the appellate court should not assume too readily that the tribunal below misdirected itself just because it had not fully set out every step in its reasoning. Similarly, “the concern of the court ought to be substance not semantics”: per Sir James Munby P in Re F (Children) at [23]. Lord Hope said this of an industrial tribunal’s reasoning in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at [59]:

‘… It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.’

65.

The reasons of the tribunal below must be considered as a whole. Furthermore, the appellate court should not limit itself to what is explicitly shown on the face of the decision; it should also have regard to that which is implicit in the decision. R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790 (per Lord Lane CJ at page 794) was cited by Floyd LJ in UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [27] as explaining that the issues which a tribunal decides and the basis on which the tribunal reaches its decision may be set out directly or by inference.

66.

The following was said in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 (a classic authority on the adequacy of reasons), on the question of the context in which apparently inadequate reasons of a trial judge are to be read:

‘26. Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. … If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial.

….

118.

... There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the judge has reached an adverse decision.”’