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October 3, 2013 1:07 pm
1. Assets of community value
My local pub is closing. Is there anything we can do to save it? You might be able to get it listed by your local council as an asset of community value, under rules introduced by the Localism Act 2011. To qualify, the land or building must further the social wellbeing or social interests of the local community, and it must be realistic to expect that use to continue. The rules also cover land or buildings where the community use has stopped in the recent past but can realistically be expected to start again in the next five years.
Great. How do we get started? You could ask your parish or community council to nominate the pub. Otherwise, you need to get a local voluntary or community body to nominate it. You can find more details in government guidance .
Can all types of property be listed? No, although the rules apply to all sorts of community buildings. Church or village halls, land and buildings of particular historical value, local parks and more than 100 pubs have already been listed nationwide. Sports grounds can also qualify, even Old Trafford, which was recently listed. Residences and their grounds are excluded, although you could nominate land used for community purposes that is subject to planning permission for residential use, as long as building has not finished.
What happens if we get our pub listed? The local authority will place your property on a list of all assets of community value in the area, for a maximum of five years.
Does the listing mean the landowner can’t sell? No, but if they want to sell the freehold or grant or sell a lease with at least 25 years to run, they must notify the local council. For the next six weeks, the landowner cannot sell or let the land, except to a community interest group. If your group wants to buy it, you must make a written request to bid, during that period.
What then? Once you (or any other community group) have asked to bid, you have six months (counted from the start of the initial six-week period) to come up with a bid. The landowner does not have to sell to you or offer you special terms. If you have not agreed a deal by the end of the six months, the landowner is free to dispose of the land as they wish.
Where does the scheme apply? The Localism Act 2011 provides for the scheme to apply in England and Wales, although Welsh ministers have not yet brought it into force.
Who are the winners and losers? Landowners are burdened with the costs of dealing with the listing process and their ability to deal freely with their land is restricted. Communities and interest groups get the opportunity to acquire valuable assets, which might otherwise be lost to the community.
2. Tree roots and damage to property
I’ve recently bought a house with some large trees in the garden. I’ve read about roots causing damage to neighbours’ houses. If that happened, would I have to pay for repairs? Possibly. In a recent case, a homeowner was awarded more than £17,000 in damages from a neighbour, after proving that tree roots had caused damage to her house. Your neighbours would have to produce good evidence that any damage was actually caused by your tree roots.
So if they proved it, I’d have to pay up? That’s not the whole story. They would also need to show that you should have foreseen the risk of your trees causing damage – would a reasonable person have thought there was a risk? Although it is widely known that tree roots can cause damage, there would normally have to be something about your particular trees to make you think they posed a real risk to your neighbours’ property.
Can I wait until my neighbours complain? If your neighbours actually tell you they think there is a problem, you definitely need to do something. But you may be liable even if they don’t, if a judge thinks you should have realised there was a risk, so it is best not to wait.
Do I have to cut the trees down, or can I just prune them? The best way to avoid any problems in the first place is to get your trees looked at by an expert. They should spot any likely problems, whether from unsafe or overhanging branches or from roots, and suggest how to deal with them. Your duty is to take reasonable precautions. You are not expected to cut down all your trees unless there is a real risk of them causing damage – but if there is a risk and there is something you can do that does not cost a fortune or put you at any disadvantage, a judge would expect you to have done it.
What if the trees are subject to tree preservation orders? Contact your local council. The rules on tree preservation orders allow work to be carried out where it is necessary to stop damage being caused to neighbouring property.
The trees were planted by the previous owner. Are they still my responsibility? Yes. Responsibility rests with the occupier.
SJ Berwin is an international law firm. This column is written by Andrew Elliott and Fiona Larcombe, who are both solicitors in its London office.
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