Village Green

May 16th, 2018 by James Goudie KC

In Cotham School v Bristol City Council (2018) EWHC 1022 (Admin) the Council   is the owner of the freehold interest in Stoke Lodge Playing Fields. It is also the Commons Registration Authority empowered to register land as a town or village green pursuant to Section 15 Commons Act 2006.  In 2011 application was made to register the land as a town or village green. The applicant was acting on behalf of an unincorporated association known as “Save Stoke Lodge Parkland”. Objections to the application were received. In the face of conflicting views about whether the land should be registered the registration authority decided that it would appoint an Inspector to make a recommendation about whether the land should be registered. In May 2013 the Inspector issued a Report in which he recommended that the land should be registered as a green. However, that recommendation was not implemented. In the years immediately following the publication of the Report there were a number of cases proceeding through the Courts which were relevant to the issues raised in this case. Ultimately a decision was taken that before a decision was made as to whether the land should be registered the Inspector should conduct a non-statutory Public Inquiry at which oral evidence would be given. In June and July 2016 the Inspector conducted such an Inquiry. In October 2016 the Inspector produced a comprehensive written Report. In it, he recommended that the land should not be registered as a green. He expressed the view that one aspect of the statutory test for registration had not been satisfied.  The Inspector’s Report was considered at the Public Rights of Way and Greens Committee of the Council in December 2016.  In the event the Committee resolved (on the Chair’s casting vote) to reject the Inspector’s recommendation and to grant the application for registration.

Currently, the land is occupied by the School. It has been occupied since 2011 pursuant to a lease granted by the Council for a term of 125 years. It was common ground that the creation of the lease was and is no bar to the registration of the land as a green. In these proceedings, issued in March 2017, the School seeks an Order quashing the decision of the Committee. There was no dispute that the land has been used as playing fields by educational establishments and sports clubs since the late 1940s. The Inspector found that the land had also been used over many years by local inhabitants for informal recreational purposes. The Inspector expressed his conclusions thus:-

“The core facts of this case are not in dispute. The land has been used for use by schools for games and athletics. It has been used by sports clubs for football, rugby and cricket. It has been used by local people for dog walking and informal recreation. Access for that dog walking and informal recreation has been freely available. At all relevant times two Avon County Council signs were positioned on the land and still are. There was a third sign Avon County Council sign on the land which must be contemporaneous with the other Avon County Council signs and survived down from the mid 1980s until at least 18 June 2007. Cotham school have a lease of the land and could fence it off, subject to it not having become a town or village green by virtue of long use by local people …”

Sir Wyn Williams, sitting as a Judge of the High Court, concluded that he was bound by the decision of the Court of Appeal in Taylor v Betterment Proporties (Weymouth Ltd (2012) 2 P&CR 3 on the phrase “as of right”.  Its ratio was not overruled by anything in R (Beresford) v Sunderland City Council (2004) 1 AC 889 or R (Barkas) v North Yorkshire County Council (2015) AC 195.  Sir Wyn said:-

“53.  When writing his report the Inspector was obliged to ascertain the legal principles relevant to the interpretation of the phrase “as of right” and then apply that phrase in accordance with those principles. I have reached the clear conclusion that the Inspector’s analysis of the law relating to the phrase “as of right” was correct. He was also correct, in my judgment, when he concluded that the use of land by local inhabitants would be made contentious by the erection of sufficient and suitably placed signs which were visible to users of the land and which had been seen by a significant number of persons using the land. That was the clear and concise legal basis upon which he approached the evidence as to whether the local inhabitants’ use of the land was “as of right”.”

“55.    Was the committee entitled to reach a different view from that of the Inspector upon the legal significance of the 3 Avon County Council signs? In my judgment it was not given the clear record in the minutes that the committee accepted that when the signs were erected “the Avon County Council signage had made the position sufficiently clear that use of the site was contentious and not ‘as of right’.”  … The Inspector’s view was clear, namely, that between 1991 and 1996 the signage which existed on the land was sufficient to make the use of the land by the local inhabitants contentious. I simply do not accept that the committee addressed its mind to this part of the Inspector’s findings which were central to the issue of whether 20 years’ user “as of right” had been established.”

The first ground of challenge was made out. Other issues that arose included statutory incompatibility, especially with regard to the provisions of the Academies Act 2010 which relate to the disposal of playing fields. Sir Wyn said:-

“91.    … between the parties as to the approach which I must follow. The judgment of Lindblom LJ in Lancashire makes it clear that the overarching principles to be applied are those formulated by Lord Neuberger in Newhaven. The task of the Court in every case in which statutory incompatibility is said to arise is to apply those overarching principles to the relationship between the provisions of the 2006 Act concerning registration and the statutory powers and duties said to relate to the land in question. Statutory incompatibility will be made out so as to defeat registration as a green only if the land in question is held for a defined statutory purpose and the registration of the land would allow local inhabitants to acquire rights which were incompatible with the continuing use of the land for those statutory purposes. In each case the relevant statutory provisions must be interpreted with care so as to permit of an analysis as to whether the statutory purposes for which the land in question is held would be defeated by registration.”

“102.  Newhaven and Lancashire make it clear that issues of statutory incompatibility are to be determined by reference to the appropriate interpretation of the statutes in question. I do not consider that the legislative provisions relating to the disposal of playing field land held for the purposes of an academy preclude the registration of such land as a town or village green.

  1. I should also say that I agree with the Inspector that even if registration is to be regarded as a disposal, statutory incompatibility is still not made out. If registration constitutes a disposal, paragraph 17 provides a mechanism for seeking the consent of the Secretary of State for the disposal in question which must be obtained for the disposal to be lawful. In my judgment it must follow that he might intervene to argue that in a particular case registration would fall foul of the principle of statutory incompatibility. …”

Sir Wyn however concluded that there would be no disposal of the land in question. A “disposal” of land within paragraph 17 of Part 3 of Schedule 1 to the Academies Act 2010 involved a voluntary transfer or a voluntary change of use.  It did not encompass transfers or changes which occurred against the landowner’s will as a consequence of unrelated statutory provisions.

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