Cotham School, R (On the Application Of) v Bristol City Council

For town or village green registration, use is “as of right” only where it is nec vi, nec clam, nec precario. Clearly visible signs, actually seen by a significant number of users, may make subsequent use contentious. A decision-maker departing from an inspector’s detailed recommendation must explain the material factual and legal basis for doing so, including any material change said to have occurred. The coexistence of organised sporting use and recreational use does not necessarily establish permissive use; that issue is fact-sensitive. Statutory incompatibility defeats registration only where the land is held for a defined statutory purpose and registration would confer rights incompatible with continuing that purpose. Registration is not a voluntary disposal of land under the statutory controls governing academy playing fields.

Mr Mayer applied under section 15 of the Commons Act 2006 to register Stoke Lodge Playing Fields as a town or village green. Following a public inquiry, the inspector recommended refusal because signs erected by Avon County Council had made local recreational use contentious during part of the relevant period. Bristol City Council’s committee rejected that recommendation and granted registration.

The school sought judicial review on five grounds, alleging errors concerning “as of right” use, reasons, irrelevant considerations, fairness, permissive use and statutory incompatibility. The central issues were whether the committee lawfully departed from the inspector’s findings and whether registration was incompatible with statutory educational and academy land provisions.

1. Grounds 1 and 3 succeeded. The committee accepted that the signs had initially made use of the land contentious, but failed to determine whether any material change had occurred by the beginning of the relevant 20-year period. It therefore unlawfully concluded that the statutory test had been met.
2. The principles in R v Oxfordshire County Council ex parte Sunningwell Parish Council, [2000] 1 AC 335, R (Beresford) v Sunderland City Council, [2004] 1 AC 889, and R (Lewis) v Redcar and Cleveland Borough Council (No 2), [2010] 2 AC 70, equate “as of right” with use that is not by force, stealth or permission. Taylor v Betterment Properties (Weymouth) Ltd, [2012] 2 P&CR 3, was binding. Its principles were directly applicable: suitably worded signs, visible to and actually seen by local inhabitants, could make use contentious. Winterburn v Bennett, [2017] 1 WLR 646, was consistent with and applied Taylor v Betterment Properties (Weymouth) Ltd.
3. The committee was entitled to depart from the inspector’s recommendation only if it addressed the relevant evidence and explained the departure. Its reasoning that three signs were insufficient for a 22-acre site did not explain the inconsistency between its acceptance that the signs were initially sufficient and its conclusion that they no longer mattered by March 1991. It also failed to engage with the inspector’s finding that a significant number of users had seen the signs.
4. Ground 2 failed. There was insufficient evidence that irrelevant matters had materially influenced the decision. Fairness did not require disclosure of general expressions of support or representations repeating the already-known argument that Winterburn v Bennett was factually distinguishable.
5. Ground 4 failed. The inspector had adequately considered whether organised sports and occasional exclusion from playing areas implied permission. Following R (Lewis) v Redcar and Cleveland Borough Council (No 2), coexistence of the landowner’s use and recreational use could support an inference that use was not permissive. The issue depended on the facts, and R (Mann) v Somerset County Council, [2017] 4 WLR 170, did not compel the contrary conclusion.
6. Ground 5 failed. Applying R (Newhaven Port & Properties Ltd) v East Sussex County Council, [2015] AC 1547, and R (Lancashire CC) v Secretary of State for the Environment, Food and Rural Affairs, [2018] EWCA Civ 721, statutory incompatibility required a defined statutory purpose and registration that would confer rights incompatible with continuing that purpose. The relevant educational duties did not specifically relate to the land, and the inspector was entitled to conclude that those duties could continue after registration.
7. Registration was not a voluntary “disposal” under paragraph 17 of Schedule 1 to the Academies Act 2010. It resulted from statutory acquisition of public rights through long use, rather than a voluntary transfer, change of use or disposition by the academy. The claim was therefore otherwise made out only on grounds 1 and 3; the question of relief remained to be determined.