First-tier Tribunal (General Regulatory Chamber)

NCN: [2024] UKFTT 33 (GRC)

Case Reference:  CR/2023/0001

 

FIRST-TIER TRIBUNAL

GENERAL REGULATORY CHAMBER

(COMMUNITY RIGHT TO BID)

 

Heard: by determination on the papers

Heard on: 5 January 2024

Decision given on: 5 January 2024

Before: Judge Alison McKenna

 

 

 

	WREXHAM COURT PARISH COUNCIL	Appellant
	- and -
	SLOUGH BOROUGH COUNCIL	Respondent

 

 

 

DECISION on strike out application:

 

This appeal is struck out under rule 8 (2) (a) [1] as the Tribunal has no

jurisdiction to determine it.

 

 

REASONS

 

1.     The Respondent's applications for strike out, dated 10 May and 9 November 2023 are allowed.

2.     The Appellant filed a Notice of Appeal dated 5 February 2023, in which the basis of its appeal and its standing to bring it were unclear. The Appellant was invited to clarify its case by the Tribunal on two separate occasions and has now done so (albeit that its latest submission was filed late).  I consider it fair and just to exercise my jurisdiction to accept the Appellant's late submission and so proceed to determine this application.

3.     The Respondent first applied for a strike out on 10 May 2023 under rule 8 (2) (a) of the Tribunal's rules on the basis that the Tribunal had no jurisdiction to determine it the appeal.  Further, it was submitted that the Appellant did not have standing to bring an appeal.  It was also submitted on 4 December 2023 that the original nomination it had received from the Appellant was defective.

4.     The Appellant was invited to make submissions in response to the proposed strike out, as required by rule 8 (4).  It was also given the opportunity to plead its case more fully in an amended Notice of Appeal. On 9 November 2023, it submitted as to jurisdiction that the legislation is out of date and should be interpreted so as to confer jurisdiction on the Tribunal.  Further, that is it a person with standing to bring an appeal in relation to two of the six properties originally mentioned. Further, it impugns the process by which the Respondent's decision was reached.

5.     It seems to me that the Applicant may have misunderstood the role of the Tribunal.  This is to determine appeals within the statutory framework created by Parliament.  As such, an appeal may only proceed to determination only if it falls within a right of appeal created in primary legislation and jurisdiction may not be conferred as a matter of interpretation.  Neither party has referred me to binding case law in support of their submissions.

6.     I note that section 91 of the Localism Act 2011 [2] requires a listing authority to give statutory notice of inclusion or removal of an asset in its list of assets of community value.  The decision letter which the Appellant seeks to appeal is headed with a reference to s. 91 of the 2011 Act and explains that the Appellant's nomination was in fact unsuccessful.  Regulation 11 of The Assets of Community Value (England) Regulations 2012 [3] confers a right of appeal to the Tribunal against a listing review decision.  A listing review, by definition, is one requested by the owner of the relevant land against a decision to 'include or remove' an asset and does not confer a right of appeal for a nominator against an unsuccessful nomination.  Thus, the right of appeal is conferred upon a relevant owner and in respect of a listing review decision, rather than against an initial decision not to include any property in the list.

7.     This interpretation of the legislative scheme has been confirmed by the Court of Appeal in Banner Homes v St. Albans City and District Council and Verulam Residents' Association [2018] EWCA Civ 1187 (at paragraph 19) [4] and is further made clear on the Tribunal's own website. [5] It seems to me that the intention of Parliament was that an unsuccessful nominator could challenge the s. 91 decision only by way of judicial review.

8.       If the Tribunal does not have jurisdiction in relation to the subject matter of an appeal, then it must strike it out and has no discretion to entertain it.  The question of whether the Appellant has standing is accordingly irrelevant and I need not determine it.  Questions about the process by which the Respondent's decision was reached fall within the jurisdiction of the High Court on judicial review and are not capable of resolution by this Tribunal. This Tribunal also does not determine disputes about interests in land. This Tribunal is not the Property Chamber, as it is described by the Appellant.

9.     I conclude that this Tribunal has no jurisdiction to determine this appeal.  In such circumstances, a strike out is mandatory under rule 8 (2) (a) of the Rules.  I now direct a strike out accordingly.

 

(Signed)                                               Dated: 5 January 2024

 

Judge Alison McKenna

 

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