Forum topic: The Green Dragon - bad news, but did the council have any choice?

The news that Enfield Council has turned down the resubmitted bid to register the Green Dragon as an Asset of Community Value is very disappointing, but hardly unexpected. The bid failed on "Step D - Realism of Future Usage" - because "The land owner has no intention of reopening the pub or selling it to someone who wishes to do so". Since this is clearly the case and since registration requires that all steps are successfully met, it's hard to see how the Council could have reached any other decision.

Specifically, for registration the answer to the following question has to be "Yes":

"Is it realistic to think (for “current” uses) there will continue to be social use of the building or other land or (for “recent” uses) that it is realistic to think that there will be community use again within the next five years?"

And as the owner clearly wishes to convert the building into a shop plus flats, the answer is surely "No".

In his message passing on the bad news to supporters Mike McClean is highly critical of the council officers who made the decision. He claims that in other places "we ... know of cases where the developer has been defeated despite talking this stance". It would be interesting to have more details of these cases to see whether the situation was quite as far advanced as in the case of the Green Dragon. Unless there really have been cases where pubs have been registered in similar circumstances, the council officers surely had no choice but to reject the submission. Accepting it when the grounds were clearly insufficient would expose Enfield Council to legal action by the owners, which might prove very expensive were the Council to lose.

The amount of support from the public, from councillors and from local MPs is heartening but irrelevant if the submission does not meet the strict conditions laid down in the legislation.

Mike McClean is certainly right in emphasizing the need to identify any further historic pubs at risk asap. In addition to the Fox, which has now been registered, there are two traditional pubs in Palmers Green - the Woodman and the Dog & Duck - and several in Winchmore Hill, so perhaps we should be turning our attention to their future now.

However, one thing to bear in mind is that the community function inherent in simply being a pub may not be sufficient unless additional community functions can be demonstrated. Step C in the registration process includes the question "Does it meet the social interests of the community as a whole and not simply the users/customers of the specific service?" Although failing this particular sub-point doesn't automatically disqualify an application, it would severely damage the chances of success. The Fox application scored highly on this question because of the various activities in the function room at the rear of the pub, such as Talkies Community Cinema, and because it is used by the voluntary sector. Whether other local pubs would meet this criterion is a moot point.

The pub sector is generally not doing well at the moment, but there are plenty of cases where pubs that strive to retain and attract customers can succeed. The Green Dragon surely could have been turned round. Unfortunately, the firms that own pubs for the most part don't bother to try. At heart is the current assumption that the primary purpose of business is to maximise profits and that this takes priority over providing a service to customers or jobs for employees. This inevitably leads to pub companies regarding their estate as "assets" whose value should be realised in whichever way yields the highest immediate profits - which in London at the moment is conversion to housing.

As regards the Green Dragon, I think we now need to concentrate on preventing any changes that would impair the external appearance of this impressive landmark building. Presumably some significant changes to its appearance could be made without planning permission, so we need to lobby both the owners and Waitrose, who are expected to take the ground floor. I think that preserving the current look of the building could actually be a selling point for Waitrose - a cut above the boring standardised supermarket plateglass frontages. I wonder if there's any chance that it could be listed?

If, as Mike McClean tells us, the majority of elected councillors were in favour of the Green Dragon becoming an ACV (quite apart from those 4,500 people who signed the petition), I don't understand why the officers, who are the servants of the council (and of the ratepayers) are able to decide otherwise. On this basis they could make any decision they liked, irrespective of what the elected members think or decide. Then what would be the point of elected members?

Furthermore, the argument for retaining the Green Dragon is strong, since it could also be used as a café/restaurant, for public meetings and meetings of local groups (as has happened in the past) and for a limited amount of hotel accommodation - all of which are needed (actually or potentially) in this area of Winchmore Hill.

But the main question is, if officers can act contrary to the expressed wishes of elected members, what are elected members for? (Also, it is likely that many of these officers don't live in Winchmore Hill, or even in the borough of Enfield.)

I'd like an answer to this question. (Incidentally, having worked in local government for nearly 40 years - in another part of London - although given plenty of autonomy, on account of professional expertise, we were allowed to get away with nothing if elected members thought otherwise, unless we could successfully argue to the contrary.)

At the Ward Forum last night we were told that councillors are actually forbidden from being involved in decisions about ACVs. I assume that the rules are set down in Parliamentary legislation and the role of councils is to administer them, but that they still have to work within the strict confines of the law.

Having said that, I've been looking on legislation.gov.uk (very good pre-bedtime reading) and haven't been able to find anything very specific about how to determine whether something is "realistic" or not - and this case seems to hinge on whether or not there is a realistic possibility of the GD being used for community purposes within the next five years.

I agree entirely with Garry that there is a strong case for using the GD for community purposes as well as as a pub. The trouble is that the owners prefer to use it for more profitable purposes, and it looks like the law is on their side.

Turning to Garry's point about elected members: The elected members of the council last year decided that they wanted to introduce a landlord-licensing scheme (very good idea in my opinion), but they were taken to court over some fairly technical infraction and lost. I think they would have reintroduced the scheme, except that now the government is changing the law to prevent councils bringing in landlord-licensing schemes - overruling the clear wish of our elected councillors. In the UK system, without a proper constitution, ultimately the house of commons can make any law it wishes and if it so wishes just abolish local authorities overnight.

The Council did have a choice and I can’t agree with Basil’s analysis. There is a lot of misinformation about ACVs!!

The ‘asset’ in an ACV is the building, not the business. The intention of the ACV is to stop the situation where an owner sells the property for a different use, but no one has the opportunity to make a bid for the building that would retain community use. An ACV only has an effect if the owner chooses to sell; they are not obliged to sell. If they do choose to sell (within 5 years), then they must notify the community group. Any community group can then make an offer. They do not have to propose the same use for the building as before. The owner is not obliged to accept any of these community bids, but the normal assumption would be that they will of the offer is higher than other commercial bids. There are now a good number of examples of where this has happened.

In a nomination there are no extra marks for the ‘amount’ of community value; it’s good that the Fox has Talkies etc but this is not relevant. Both the Fox and the Green Dragon have community value by being a pub, and this is the case for pubs listed elsewhere in the country. The Council did not fail the application because of this (Step C).

The tricky thing in any Council’s assessment of a nomination is the requirement in the Localism Act that “It is realistic to think that there is a time in the next five years when there could be … use of the building … that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.” There is no explanation of why this is in the Act or what the test should be for ‘realistic’.

Reading the background to the Act, my understanding is that this condition covers the situation where there has been a clear change in demand or a significant change to the building (an owner could have already made substantial modifications to the building that would make it impractical to convert the building back to community use).

This interpretation is supported by the Council’s own evaluation criteria, which says in section
“D1. Has the building/land-take/space/legal requirement for this usage changed significantly since its initial use so that the asset is not fit for purpose?”

For the Green Dragon, test D1 would be passed. There is still a demand for a pub (it went downhill because the Orchid group bought an estate of pubs using too much debt and then collapsed). And the building is still fit for use as a pub or other community use. But it appears that the Council have ignored their own criteria and used unpublished criteria to make the test.

I have not seen the Council’s full report but the phrase "The land owner has no intention of reopening the pub or selling it to someone who wishes to do so" is, as far as I can see, totally out of order. The land owner’s intention is not relevant as the whole purpose of the Act is to require the owner to do something that they had not intended to – ie allow community groups to bid. Nor is it relevant that the owner has a view about pubs; the Act does not require that the building is still used by the community as a pub. It appears that the Council have tried to apply a totally inappropriate commercial test which is mere guesswork about what may or may not happen.

ACVs are defined by the Localism Act and so the Council must follow the Act and not just the wishes of the public, Councillors or MPs. But the Councillors can – and I hope they will – challenge the officers to makes sure they have interpreted the Act appropriately. In particular, the ambiguity in the Act must be resolved by the Councillors and not the officers, and they have the right to insist that the officers use the published criteria.

It seems that Wandsworth Council have been taking a proactive line on protecting pubs from conversion and development. See this article in the Londonist .

While the Fox passed muster as an Asset of Community value if it did come to a sale scenario then it would of course need to be relaunched as a viable assert that had community value. Announcement of a grant to help any potential budding keenies on such a quest has just been made. This is not to say the Fox is at any known risk but who knows what damage the cycle lanes or other factors could do to its viability. Expect the unexpected.

Government Launches New Loan Fund to Save Pubs at Risk of Closure (England)
The Department for Communities and Local Government has launched a new £1.5 million fund to help local people take control of pubs at risk of closure.
The new ‘Pub Loan Fund' will help community groups take over the running of their pub, by providing small loans to start feasibility work, pay for lawyers' fees or get materials for refurbishment. Already, under community rights, local people can nominate any local building or land they love as an ‘asset of community value' and then, if it comes up for sale, have 6 months to raise the funds to buy it. So far more than 800 pubs have been listed. Further details about the Pub Loan Fund will be announced in due course.
https://www.gov.uk/government/news/run-your-local-with-15-million-pub-loan-fund