[2025] UKUT 051 (AAC)

1 Misapplication of the "Realistic to Think" Test

Upon scrutiny of Judge Neville's verdict, it becomes evident that whilst he acknowledges the theoretical possibility of the property operating as an independent Public House, he nevertheless concluded that the probability of this occurrence is "slim."

It is proposed that in reaching the determination that: "...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" (paragraph 40 of Judge Neville’s 10 decision) whilst simultaneously agreeing with the Council's position that it is not "fanciful" to envisage the property's potential for community use within five years represents a fundamental contradiction and constitutes a misapplication of the “Realistic to Think” test.

The conclusion drawn by the judge is perplexing due to its lack of adequate justification. The acknowledgment of the slim chances of the property benefiting the community contrasts sharply with the optimistic assertion of its realistic use. This dichotomy in the judge's reasoning creates an ambiguity that undermines the decision's clarity and legal soundness.

The contradictory language in the decision further adds to the confusion. For example, paragraph 37 of the decision states that it is "certainly unlikely" that the Montreal Arms will be used in a way that furthers the community's interests in the next five years, yet Judge Neville concludes that such use is still realistic. This juxtaposition of unlikely prospects with a realistic outcome is contradictory and lacks a robust legal basis. Further, the simultaneous assertion that an outcome is both “certainly unlikely” and "realistic" presents an inherent inconsistency within the judgment and thus raises substantial questions regarding the logical and legal foundations of the decision.

How can a scenario be simultaneously deemed "certainly unlikely" and yet "realistic" in the context of the Localism Act 2011? This inquiry is pivotal as it speaks directly to the heart of the legal standards for determining a property's inclusion as an Asset of Community Value (ACV). It is essential to reconcile these conflicting assessments to uphold the integrity of the legal process.

The appellant notes the absence of a clear and reasoned explanation for the judge's decision, which is important in terms of providing an understanding of the legal basis for such rulings, especially when decisions deviate from the presented evidence. The lack of such reasoning in this case raises questions about proper legal reasoning and transparency in the decision-making process.

These issues compromise the clarity and legality of the judgment, which warrants further review and clarification.

Failure to Assess Practicality

Judge Neville ought to have considered whether his assessment conformed to sensible and practical prospects of realising a compliant scenario, particularly when weighed against the Appellant’s intentions and the potentiality of alternative scenarios. Instead, and despite reviewing evidence to the contrary, he deems it "realistic" that the property could function as a community-serving Public House and, further, that it could do so entirely without any likelihood of financial viability or tangible community support.

Inconsistency in Applying Legal Principles:

The law mandates an appraisal of whether a scenario represents a rational and feasible notion of what can be accomplished, in accordance with the definition of "realistic" as established in the case of Carsberg -v- East Northamptonshire Council [2020] UKFTT CR-2020-0004 (GRC). Judge Neville's assertions that the "prospects are slim," and "certainly unlikely," inadequately address this pivotal facet, revealing an unsettling inconsistency in the application of legal principles, particularly in evaluating the practicality and realism of the property's future use.

Judge Neville failed to accurately apply the "Realistic to Think" test, which necessitates an assessment of whether a scenario is a sensible and practicable concept of what can be achieved or expected, "representing things in a way that is accurate or true to life," as per the dictionary definition of "realistic" embraced by the Judge in the Carsberg case.

Judge Neville's interpretation and application of the "Realistic to Think" test appears to diverge from the standard that requires an evaluation of reasonable and practical possibilities. The test demands that a scenario be scrutinised in terms of its practical attainability and likelihood, presenting matters in a manner that corresponds to accuracy and reality. This interpretation is consistent with the dictionary definition of "realistic," as adopted in Carsberg -v- East Northamptonshire Council [2020].

Judge Neville's assessment fails to reconcile the notion of something being "certainly unlikely" with it also being "realistic," resulting in a perplexing and legally untenable conclusion.

Failure to Apply Established Legal Precedents

To illustrate the misapplication at hand, it is imperative to reference a precedent set by Judge Peter Lane in the case of R. (TV Harrison CIC) -v- Leeds School Sports Association [2022] EWHC 130 (Admin). In this pivotal judgment, Judge Lane established a fundamental principle that holds particular relevance to our case. Judge Lane articulated this principle as follows:

Of paramount significance in Judge Lane's judgment is the inclusion of the phrase "without more," as underscored above. This phrase elucidates the requirement that, in instances where a non-compliant scenario involving development not aligned with the community value criteria is anticipated, as is the case under consideration, there must exist affirmative evidence to establish the realism of a compliant scenario. In this context, a compliant scenario denotes one where the property will be employed in a manner consistent with the community value criteria in the future.

The phrase "without more" within the judgment emphasizes the necessity for a nuanced and comprehensive assessment when determining the realism of potential future uses. It implies that a simplistic comparison of probabilities falls short and additional factors or evidence should be considered to conduct a thorough evaluation of whether a specific scenario aligns with the statutory notion of realism. This interpretation is in harmony with the judge's intent to discourage oversimplification and encourage a holistic understanding of the pertinent legal standard.

Judge Lane's ruling underscores the imperative of a nuanced examination of realism in potential future uses, signalling that a mere probability comparison is inadequate, a perspective insufficiently considered in Judge Neville's decision.

In the context of the judgment, the phrase "without more" plays a pivotal role in the interpretation of the discussed legal standard. It suggests that merely having a scenario less likely than the most probable outcome does not suffice to label that scenario as unrealistic. It implies the need for additional factors or evidence to render a less likely scenario as unrealistic.

Further, by incorporating "without more," the judge cautions against oversimplifying the evaluation process. It signifies that a mere probability comparison is insufficient for determining the realism of a less likely scenario.

The presence of the use of language "without more" indicates the necessity for a comprehensive and thorough evaluation that goes beyond mere probability comparisons. It involves considering other relevant aspects or evidence that might influence the realism of a potential future use.

In essence, the phrase "without more" serves to underscore that determining what constitutes a "realistic" future use under the statute requires a more profound examination than a superficial comparison of probabilities.

It is pertinent to note that Judge Lane's ruling provides essential context for grasping the "Realistic to Think" test. The stress on evidential support in Judge Lane's decision accentuates the significance of a well-founded basis for any determination regarding a property's future community use.

In the Alternative

Even if the Upper Tribunal does not interpret the precedent set by Judge Peter Lane in R. (TV Harrison CIC) v Leeds School Sports Association [2022] EWHC 130 (Admin) as requiring positive evidence when evaluating a compliant scenario, a significant legal issue remains at hand.

The tribunal's decision failed to address the Act's requirement for a plausible and realistic scenario, regardless of a comparison to previous case law.

It is important to acknowledge that not all cases can be exclusively resolved through a comparative analysis of other case law. Each case may present unique characteristics or circumstances that set it apart and necessitate a distinct approach, possibly leading to the designation of this case as a seminal decision.

Specifically, the decision under review appears to have omitted a critical consideration, namely, the Act's explicit requirement for a plausible and realistic scenario. The Act mandates that a potential future use, whether compliant or non-compliant, must rest on a plausible and realistic foundation.

In the absence of anything whatsoever to substantiate the tribunal's conclusion regarding the plausibility and realism of the scenarios under examination, the decision fails to meet the legal standard mandated by the Act. This raises questions about whether the decision adequately addresses the core requirement of the legislation, thus warranting further scrutiny and review.”