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Decision to register playing fields as village green unlawful: judge

A High Court judge has upheld a legal challenge by a school in Bristol and indicated that he will quash a council committee’s decision to register land as a village green.

The land in question in Cotham School, R (On the Application Of) v Bristol City Council [2018] EWHC 1022 was an area of land known as Stoke Lodge Playing Fields, Shirehampton Road, Stoke Bishop.

The city council is the registered owner of the freehold interest. It is also the Commons Registration Authority empowered to register land as a town or village green pursuant to section 15 of the Commons Act 2006.

On 7 March 2011 the First Interested Party, David Mayer, made an application to the council as registration authority to register the land as a town or village green. He was acting on behalf of "Save Stoke Lodge Parkland".

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Objections to the application were received from the council as landowner, the Second and Third Interested Parties (Bristol University and Rockleaze Rangers Football Club) and the claimant, Cotham School, which has occupied the land since 2011 under a 125-year lease.

The council appointed barrister Philip Petchey as inspector and asked him to make a recommendation about whether the land should be registered.

On 22 May 2013, he issued a report in which he recommended that the land should be registered as a green. However, that recommendation was not implemented.

Ultimately a decision was taken that before a decision was made as to whether the land should be registered Mr Petchey should conduct a non-statutory public inquiry at which oral evidence would be given before him by all those who wished to attend the Iniquiry and give such evidence. This inquiry was held over nine days during June and July 2016.

On 14 October 2016 the inspector recommended in a written report 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 user of the land could not be said to be “as of right”, with Avon County Council having in the mid-1980s erected three signs warning members of the public not to trespass on the playing fields. These signs had been enough to render use of the land by local inhabitants contentious, the inspector said.

“In reaching this conclusion there is no doubt that the Inspector was influenced by a number of decisions of the higher courts but especially the decision of the Court of Appeal in Winterburn and another v Bennett [2017] 1WLR 646,” Sir Wyn Williams, sitting as a deputy High Court judge, said.

This report was considered at the city council’s Public Rights of Way and Greens Committee at a meeting on 12 December 2016. In advance of the meeting a large number of representations were sent to the committee by local inhabitants. A substantial number urged the committee to reject the inspector's recommendation and grant the application for registration.

Members of the committee were provided with a written report prepared by officers in which it was suggested that the committee should accept Mr Petchey’s recommendation.

The committee resolved (on the Chair's casting vote) to reject the inspector's recommendation and to grant the application for registration.

The claimant school sought an order quashing the decision of the committee. It alleged that the decision of the committee was vitiated by legal errors and five grounds were advanced which, it was submitted, justified the making of a quashing order.

These grounds were that:

  1. The registration authority erred in law when it concluded that the use of the land by the local inhabitants between 1991 and 2011 was "as of right" (Ground 1).
  2. The committee took account of irrelevant matters. The claimant also complained that it was given no indication, prior to the committee's decision, that it had received a substantial number of representations to the effect that the Inspector's reliance upon Winterburn was wrong and/or that the decision in Winterburn was distinguishable on the facts. That was said to constitute a breach of a duty upon the committee to act fairly in its consideration of the application for registration.
  3. The registration authority failed to provide adequate and sufficient reasons for reaching the conclusion [set out in ground 1] thus rendering its decision unlawful.
  4. The committee fell into legal error in that it failed to give reasons for rejecting the claimant's submissions based upon Mann.
  5. Registration was precluded by statutory incompatibility. The acquisition of rights over the land by local inhabitants as a consequence of the registration of the land as a green would constitute a disposal of the land by the claimant. It followed that paragraph 17 of Schedule 1 of the Academies Act 2010 applied and the acquisition of such rights consequent upon registration of the land would, inevitably, be incompatible with the Secretary of State's right, in appropriate circumstances, to refuse a disposal of the land.

The application for a quashing order was resisted by the registration authority and Mr Mayer.

Sir Wyn upheld the challenge on grounds 1 and 3 only.

On ground 1, the judge noted that where a landowner had “made his position about its use clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be ‘as of right’”.

Sir Wyn said this was not a case in which the committee took a decision to depart from the conclusion of an inspector on the basis of a justified difference in view about the relevant facts.

“Rather, this is a case in which the Committee, having accepted a crucial finding by the Inspector as to the legal significance of the signs when they were first erected, failed, erroneously and unlawfully, to analyse the evidence and the further findings of the Inspector as to when, if at all, the situation ‘on the ground’ had changed materially so as to permit of a conclusion that the signs were no longer sufficient to make contentious the use of the land by the local inhabitants,” he added.

“Once the Committee had adopted the findings of fact made by the Inspector as to the extent and visibility of the signage as at the date the signs were erected it was necessary for the committee to consider in detail whether the state of affairs existing at the date of the erection of the signs had changed, materially, at the commencement of the 20 year period. That was especially so given the clear findings of the Inspector that the signs were in existence between 1991 and 1996 and, further, his findings that a significant number of local inhabitants had actually seen the signs during that period. The committee did not undertake that analysis.

“In reality what the committee decided was that the case before them was very different on the facts from the facts in Winterburn. That, so far as it goes, is not controversial. However, that was no basis upon which to depart from the Inspector's conclusions given that both the Inspector and the committee were at one as to the legal significance of the signs when Avon County Council first erected them.

On ground 3, the judge said he was also satisfied that the committee failed to explain the basis upon which it felt able to reject the inspector's conclusion upon the sufficiency of the signs “based, as it was, upon a minute examination of the oral and written evidence and visits to the site”.

He added: “In my judgment, it was not sufficient simply to assert that the facts in Winterburn were very different from the facts in the instant case (although I accept that to be correct, so far as it goes) and to point out that the area of land in the instant case was so large that 3 signs were not sufficient.

“There was no attempt by the Committee to explain the significance or lack of it of the finding by the Inspector that a substantial number of persons using the site had seen the signs. As is clear from his report that finding was crucial to the Inspector's reasoning and yet, apparently, it was ignored by the Committee.

The judge said it was open to the defendant council and or Mr Mayer to seek to persuade him that notwithstanding that conclusion no relief should be granted. But he added that he was sure their counsel appreciated that this was “likely to be a very difficult task" given his reasons for finding that the committee acted unlawfully.

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