Cotham School v Bristol City Council & Anor

The High Court allowed Cotham School's claim under section 14 of the Commons Registration Act 1965 and ordered the register to be rectified by deleting the entry registering Stoke Lodge playing fields as a town or village green. The judge held that the land (including the Arboretum) was held for statutory education purposes and that registration was precluded by the doctrine of statutory incompatibility under the Commons Act 2006 (notably s.15) as explained in the leading authorities (R (Newhaven) and R (Lancashire County Council)).

Further, on the facts the court found that the public's use was not "as of right" because prohibitory signage and other manifestations of objection by the landowner/authority and later the school rendered use contentious; use for organised school sport also interrupted the continuity required for the 20‑year qualifying period. The court also held that the inspector’s findings of fact in earlier inquiries were not admissible as findings of fact in this trial, though the evidence recorded by the inspector could be used as hearsay evidence that had been tested previously.

This is a first-instance claim under CPR Part 8 brought by Cotham School for an order under section 14 of the Commons Registration Act 1965 to amend the commons register kept by Bristol City Council by deleting the entry registering Stoke Lodge playing fields as a town or village green. The registration followed an application under section 15 of the Commons Act 2006 by a local resident. The playing fields had been the subject of long public user and were the subject of a long lease (125 years from 2011) to the claimant school for school playing fields; part (the Arboretum) remained in the freeholder’s possession.

Relief sought: deletion (rectification) of the town‑green entry on the register.

Issues framed by the court included:

• whether the land satisfied the statutory test for registration under section 15 Commons Act 2006 (the 20‑year "lawful sports and pastimes" test and the character of user "as of right");
• whether registration was precluded by the doctrine of statutory incompatibility (i.e. whether the land was held for statutory education purposes incompatible with town‑green status);
• whether various signs and other acts by the owner/occupier made user contentious (nec vi, nec clam, nec precario);
• whether use for organised sport interrupted continuity; and
• whether, if registration was wrong, it would be just to rectify the register.

Reasoning and disposition in brief:

• The court held that the doctrine of statutory incompatibility applied: the freehold (and the landlord’s reserved reversionary rights) and the lease were held for statutory education purposes and those purposes were incompatible with registration as a town or village green (drawing on the Supreme Court authorities in Newhaven and Lancashire). That point alone meant registration should not have been made.
• On the facts, the court found that prohibitory signs erected by the local authority and later the school, together with other manifestations of opposition and the realities of organised sports use, made public use contentious and interrupted the continuity required for registration; accordingly the statutory tests were not satisfied.
• The inspector’s factual findings in earlier inquiries were inadmissible as findings of fact (Hollington principle), although the material and evidence recorded before the inspector could be relied on as hearsay that had been subject to testing at the inquiry.
• Given the legal incompatibility and the factual findings, the court deemed it just to order rectification and directed deletion of the registration entry, including as to the Arboretum.

The judgment contains subsidiary findings about the legal effect of the lease, the application of education and safeguarding duties, and the weight to be given to historical signage and other protests. The court emphasised that political or consequential arguments about competing public interests are for Parliament, not the court.

The claim succeeded. The court ordered rectification of the register by deleting the entry registering Stoke Lodge playing fields as a town or village green. Rationale: registration was inconsistent with the statutory purposes for which the land was held (statutory incompatibility), and, on the facts, public use was not "as of right" over the qualifying period (signage and other protest rendered user contentious and organised sports interrupted continuity). The court also held the inspector’s factual findings inadmissible as findings of fact, though the evidence before the inspector could be used as hearsay evidence that had been tested.