School wins village green challenge as High Court orders deletion of land from register

The High Court has taken the rare step of ordering a local authority to delete land from a village green register in a case brought by a school against Bristol City Council and a local campaigner.

Cotham School argued that it was entitled to stop the public from using the 22-acre site at Stoke Lodge Playing Fields for informal recreation since it leased this land from the council for educational purposes.

HHJ Matthews ordered Bristol to delete the site from the register, though noted that feelings ran so high that: “I am under no illusion that the dispute between the parties will stop here.”

He found village green registration was incompatible with educational use and so the doctrine of statutory incompatibility meant the land could not be registered.

The judge said it was irrelevant that the land was leased by the council to Cotham, which is an academy school.

Commenting on the case, Dr Ashley Bowes of Landmark Chambers, who acted for the school, said the case was one of only three successful reported claims under s.14 of the 1965 Act to delete land from the village green register.

HHJ Matthews said signs warning members of the public not to trespass at vehicle and pedestrian entrances were sufficient to mean its informal use was not “as of right”.

The fact that some signs were missing or referred to the long-defunct Avon County Council had no relevance, he said.

Cotham’s lease did not prevent the school from stopping the public from informal recreation but even if it had use of the land would have been permissive and not as of right.

The judge also found that where users interfered with school games, their use was not lawful and amounted to a criminal offence under s.547 Education Act 1996.

He concluded the green ought never to have been registered and it was just to remove it from the register.

HHJ Matthews explained that if the land were registered it might be impossible for the school to erect any fences, gates or other restrictions to prevent interference with its activities.

“The school says that, in that case, it will be unable to use the land for the purposes of school playing fields, for security, health and safety reasons (among others),” the judge said.

He said the court was not required to decide whether the school was right or whether use by the school was more or less important than use by local residents.

Legislation meant “use of a certain kind and quality by certain people for a certain period” enabled the creation of a public right against the landowner.

“Use which is less than that does not,” the judge said.”The matter is binary.”

Cotham School began legal action in November 2023 when headteacher Jo Butler said the school lacked sufficient outdoor space for physical education and had from 2011 leased the playing fields.

Ms Butler said this led to safeguarding concerns because there is open access to the fields, with uncontrolled dogs, strangers in the changing rooms and ”potential risk of harm to students and staff from uninvited members of the public, the risk of students absconding and the general atmosphere of pupils and teachers being made to feel unwelcome by other users of the playing fields”.

Mark Smulian