Nigel E Nash & Anor v East Lindsey District Council

The decision of the Tribunal is that the appeal is dismissed. Reasons Introduction

1. The Appellants ran the Black Horse Inn at Old Bolingbroke in Lincolnshire (‘the pub’) as licensees between 2004 and 2024 but there has been a pub on the site for many generations.

2. This is the Appellants’ appeal against the decision of the Respondent, East Lindsey District Council, given in a document dated 12 June 2025, declining to review its decision of 2 February 2025 to include the pub in its list of assets of community value.

3. In BHL v (1) St Albans City & District Council (2) Verulam Residents Association [2016] UKUT 0232, Upper Tribunal Judge Levenson offered this summary of the nature and effect of the assets of community value legislation:

3. The Localism Act 2011 requires each local authority to keep a list of land (including buildings) in its area which is of community value. The effect of listing (which usually lasts for five years) is that generally speaking an owner of listed land wishing to sell it must give notice to the local authority after which any community interest group has six weeks in which to ask to be treated as a potential bidder. If any such group does so the sale cannot take place for six months, during which the group may come up with an alternative proposal. At the end of the six months it is up to the owner whether to sell and to whom and on what terms. There are arrangements to compensate owners who lose out financially in consequence of the listing.

4. The appeal came before me for consideration on paper on 10 February this year, the parties having stated that they were content for the matter to be decided without a hearing. I was satisfied that the dispute could be justly determined in that way.

5. I have had regard to the documents in the bundle of some 97 pages and the handful of sundry further papers in the digital file. The Legislation

6. The statutory scheme is laid out in the Localism Act 2011 (‘ the Act ’) and the Assets of Community Value (England) 2012 (‘the Regulations’) made thereunder. The Act , s88 includes:- (1) For the purposes of this Chapter … a building or other land in a local authority’s area is land of community value if in the opinion of the authority – (a) 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 social interests of the local community; and (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.

7. In s89 the procedure for listing is explained: (1) Land in a local authority’s area which is of community value may be included by a local authority in its list of assets of community value only— (a) in response to a community nomination … (2) For the purposes of this Chapter “community nomination”, in relation to a local authority, means a nomination which— (a) nominates land in the local authority’s area for inclusion in the local authority’s list of assets of community value, and (b) is made— … (i) by a parish council ...

8. Under the Act , s90(2) and (3) a local authority must consider any ‘community nomination’ and must accept it if the land nominated is within the authority’s area and is of community value (under s88 ). If the nomination is accepted the authority must cause the land to be included in its list of assets of community value ( ibid , subsection (4)).

9. The Act , s92 makes provision for the right of owners of land included in a local authority’s list of assets of community value to seek a review of the listing decision.

10. Reg 11 includes: (1) An owner of listed land may appeal to the First-tier Tribunal against the local authority’s decision on a listing review in respect of the land. In Gullivers Bowls Club Ltd v Rother District Council (CR/2013/0009) Judge Nicholas Warren, then immediate past President of the GRC, held (at [18]) that appeals under reg 11 take the form of a complete rehearing. I respectfully agree with this guidance and adopt it.

11. In Dragonfly Architectural Services Ltd v Brighton and Hove City Council [2025] UKUT 051 (AAC) UTJ West, sitting in the Upper Tribunal, conducted a thorough review of the case-law on the proper interpretation of the Act , s88(1) (b), culminating (at [19] ) in this list of the key principles: (1) the statute does not require long-term or commercial viability … (2) the test is not to consider which outcome is more likely than not … (3) the test is not one of the civil standard of proof, which is designed to produce one outcome; the language of the statute is consistent with a number of realistic outcomes co-existing … (4) referring to a test of ‘not fanciful’ rather than what is ‘realistic’ is not an error of law … (5) ‘realistic’ means having to show a sensible and practical idea of what can be achieved or expected and representing things in a way which is accurate or true to life … (6) it is important not to concentrate on the hard-headed or commercial or financial analysis and a detailed business case is not required … (7) the test is a low one, but there must be at least some indication that the aspirations are realistic … The Appeal

12. Although it shows no sign of any professional drafting, the Appellants’ case is clear and straightforward. It can only be read as advancing a single argument, namely that the Respondent was wrong to include the pub on its list of assets of community value because it is not 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. In other words, the test under the Act , s88(1) (b) is not met. No issue arises under s88(1) (a). The argument rests on a weary recitation of countless efforts and innovations over the years to attract custom and strengthen the business and a reluctant acceptance that, owing to what is seen as unshakeable unwillingness of residents to support the venture, it is simply not possible to run it as a viable enterprise. Warm words in answers to surveys and questionnaires (see below) are not enough. Sadly, the Black Horse Inn is (or has become) a ‘Just in Case Pub’. The Appellants also refer to their own circumstances and ages (one over 70 and one approaching 60) and their (understandable) wish to retire from the business. In that regard, they strongly question the feasibility of handing over management of the pub to tenants or agents, pointing out that that has already been tried, but without success, owing to the poor returns.

13. The Respondent resists the appeal, maintaining that the test under s88(1) (b) is amply met. It points out that the pub remained open, at least until 2024 and provided numerous valued services and amenities to the community over many years, including not only food and drink but also live music, beer festivals, themed food nights, fish and chip Fridays, charity quiz nights and other special events. Further, the Respondent draws attention to a recent survey conducted in the locality which, it maintains, demonstrates that the pub is still seen as an important local amenity with good prospects of drawing people in again in the right circumstances. The evidence of successful community-owned pubs across the country is also cited in support. Analysis and Conclusions

14. I have considerable sympathy for the Appellants. Nonetheless, given the structure of the legislation and the notably low bar which s88(1) (b) sets, and having regard to the obvious social purpose which underlies it, I am quite satisfied that the appeal must be rejected. It is clear to me that one entirely realistic outcome is that the pub will reopen in some form within the five-year period and thereby once again further the social well-being and/or social interests of the local community as it undoubtedly has in the past. This is not a hopeless or fanciful cause. Old Bolingbroke is now one of two adjoining villages with no functioning pub. The need for that kind of community asset is obvious. There is no suggestion of any demographic or commercial forces at work such as to make re-launch of the pub (in some form) impracticable. It is not necessary or appropriate for me to speculate as to what particular outcome is more or less likely. As the case-law shows, all that is necessary is that I should find that one realistic outcome (if it eventuated) would produce a socially beneficial consequence. I do so find. Result

15. For the reasons which I have given, the appeal must be dismissed. (Signed) Anthony Snelson Judge of the First-tier Tribunal Date: 17 March 2026