Cotham School v Bristol City Council & Anor

Land held for statutory education purposes cannot be registered as a town or village green where registration is incompatible with those purposes. The question is one of statutory construction and principle, not merely current use or the landholder’s present duties.

Use is not “as of right” where suitably worded signs or other objectively sufficient protests make unrestricted access contentious. A protest need not be made at every entrance or communicated to every user. Organised sporting activity may interrupt continuous public use where it excludes users for the duration of matches. A lease provision preserving existing use does not grant the public permission unless properly construed to do so.

The claimant academy school held a long lease of playing fields from Bristol City Council. The land had been registered as a town or village green under section 15(3) of the Commons Act 2006, following an application by a local resident.

The school sought rectification under section 14(b) of the Commons Registration Act 1965. It argued that registration was barred by statutory incompatibility, that public use was not “as of right” because of signs and other protests, that use was interrupted by organised sport, and that some use was unlawful. The central questions were whether the land should have been registered and, if not, whether rectification was just.

1. Statutory incompatibility. The applicable test was whether there was an incompatibility between the statutory purposes for which the land was held and its use as a town or village green. The land had been acquired or appropriated for education purposes. The City Council’s retained freehold reversion continued to be held for those purposes, and the lease implemented rather than displaced them. The doctrine therefore applied to the whole registered land, including the Arboretum.
2. Registration would be incompatible with the education purposes. It would prevent lawful use for safeguarding children during physical education and would foreclose future educational uses, including school buildings or playing fields. Current use was unnecessary; it was sufficient that the land was held for those statutory purposes. The reasoning in R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs [2021] AC 194 was directly applicable.
3. User as of right. The Avon County Council signs warned the public not to trespass and were prohibitory in substance. They continued to operate after transfer of the land to Bristol City Council, including by virtue of regulation 12 of the Local Government Changes For England (Property Transfer and Transitional Payments) Regulations 1995. The later Bristol City Council sign was also prohibitory. The signs were sufficient in context, despite not being placed at every entrance. The relevant perspective was that of the reasonable landowner and reasonable user, not the subjective understanding of the actual owner or each individual user.
4. Other protests could also make use contentious. The 2016 public inquiry, in which the school and City Council opposed unrestricted public access, was sufficient in principle. The lease did not grant the community permission to use the land. If it had done so, use would have been “by right”, not “as of right”. Organised sports displaced public users for the duration of matches, so use was not continuous. Any interference with school games causing nuisance or disturbance would also have been unlawful under section 40 of the Local Government (Miscellaneous Provisions) Act 1982 and section 547 of the Education Act 1996.
5. The statutory criteria were therefore not met. It was just to rectify the register. The claimant’s long leasehold interest outweighed the City Council’s reversionary interest; prior knowledge of the registration dispute did not bar rectification; and a partial exclusion of sports pitches would create practical safeguarding and enforcement problems. The register was ordered to be rectified by deleting the entry relating to the land, including the Arboretum.

First instance decision. The judgment records earlier judicial review proceedings concerning the registration decision, including R (Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin), but those proceedings were discontinued and were not the decision under appeal.