Cotham School v Bristol City Council

Hearing dates: 24 January 2024

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this revised version as handed down may be treated as authentic.

This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on 2 February 2024.

INTRODUCTION

This is my judgment following a directions hearing in this matter. The claim itself is one brought under CPR Part 8 for an order amending the commons register kept by Bristol City Council (“the City Council”), in its capacity as commons registration authority for Bristol, so as to delete the entry relating to land known as Stoke Lodge playing fields (“the land”), in north-west Bristol. This was registered as a town green in August 2023, after an application for that purpose by the second defendant, who is a local resident. The claimant is an academy school, which in 2011 was granted a long lease of the playing fields by the freeholder, the City Council, for school use.

Representation

At the hearing on 24 January 2024, each of the claimant, the City Council (as landowner) and the second defendant was represented by counsel and solicitors. Ashley Bowes appeared for the claimant, Paul Wilmshurst for the City Council as freeholder of the land, and Andrew Sharland KC for the second defendant. The City Council had hoped to be separately represented in its capacity as commons registration authority, but its preferred counsel for this purpose, Douglas Edwards KC, was unfortunately engaged elsewhere, and so I had the benefit of detailed written submissions from Mr Edwards and Mr Michael Feeney. Paul Wilmshurst ably made the oral presentation for the City Council on the question whether it could appear more than once on the record. The claimant and the City Council had previously reached agreement on costs protection, and so Mr Bowes for the claimant made the case for it. I am very grateful to all of them.

Evidence

Evidence has been filed in this claim as follows. There are first of all the witness statements filed with the claim form. They comprise a witness statement from the claimant school's head teacher, Joanne Butler, dated 20 November 2023, two witness statements from the director of finance and resources of the claimant, Allison Crossland, of the same date, and a witness statement of Nathan Allen, the facilities manager for the claimant, also dated 20 November 2023. There is a witness statement from the second defendant, dated 16 January 2024. Finally, there is a third witness statement of Allison Crossland dated 19 January 2024. I record that none of these witnesses was cross-examined. Accordingly, for present purposes, I am not at liberty to disbelieve the evidence contained in the statements, unless I consider that it was manifestly incredible in light of all the circumstances: see Long v Farrer & Co [2004] BPIR 1218, [57], which was applied in Coyne v DRC Distribution Limited[2008] EWCA Civ 488, [58]. It was not suggested by any party that I should so consider, and I do not do so.

Nature of the claim

In substance, the present claim is a contest between the claimant school and local residents. The school wishes to be able to control the land, including by the use of fences and gates, primarily to ensure the use of the land as school playing fields, but secondarily (and subject to certain restrictions) to allow it to be used for the purposes of local recreation. The latter however wish to have unrestricted access to the land at all times and object to any fences and gates, and any other restrictions imposed by the school. This conflict appears very clearly from the recent decision of the Supreme Court in TW Logistics Ltd v Essex County Council[2021] AC 1050.

In that case, Lord Sales and Lord Burrows (with whom Lady Black, Lady Arden and Lord Stephens agreed) said:

“2. Registration of an area of land as a [town or village green] has important legal consequences for the landowner and for members of the public wishing to make use of it for recreational purposes. Upon registration, the landowner becomes obliged to let members of the public enter and use the land in certain ways. Two Victorian statutes, which enacted criminal offences designed to protect the public's use of [town or village greens], also have a potential impact on the landowner. The central question on this appeal is whether the registration of the Land as a [town or village green] would have the consequence that the continuation of the landowner's pre-existing commercial activities would be criminalised under the Victorian statutes.”

Applicable legislation

In the present case, if the land is a town or village green, the local residents will succeed, and the fences, gates and other restrictions will probably have to go. 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). In this litigation, however, the court is not required to decide whether use by the school is more important or less important, or more or less in the public interest, than use by local residents. Instead, it is concerned only to decide whether the land concerned is, or is not, a town or village green within the legal definition. This is a question of mixed fact and law. The political and consequential issues raised by the facts of this case are wholly outside the court's jurisdiction. The lawyers involved know this, but the public needs to know it too.

There are two main pieces of primary legislation which are relevant to this case. They are the Commons Registration Act 1965 and the Commons Act 2006. The intention is that the regime of the latter should eventually replace that of the former. To this end, the 2006 Act prospectively repeals the whole of the 1965 Act. However, at present, that general repeal (and the new regime) applies to only a handful of so-called “pilot” or “pioneer” areas. Bristol is not one of them. But some elements of the new system do apply even in non-pilot areas. For example, the second defendant's successful application was made under the 2006 Act and not the 1965 Act, though the entry was made in the register under the 1965 Act. This makes the ascertainment of the relevant law much more difficult than it needs to be, especially when (as is obvious) this area of the law is of great interest to ordinary people who are not lawyers (much less, judges) but who have an interest in green open spaces in their locality, whether as owners or as would-be users. Everyone is better off for knowing where they stand.

This claim is actually brought under section 14 of the Commons Registration Act 1965. As enacted (but not yet repealed for land in Bristol), this provides that:

“The High Court may order a register maintained under this Act to be amended if—

(a) the registration under this Act of any land or rights of common has become final and the court is satisfied that any person was induced by fraud to withdraw an objection to the registration or to refrain from making such an objection; or

(b) the register has been amended in pursuance of section 13 of this Act and it appears to the court that no amendment or a different amendment ought to have been made and that the error cannot be corrected in pursuance of regulations made under this Act;

and, in either case, the court deems it just to rectify the register.”

This claim is not brought under section 14(a), and so only section 14(b) is relevant.

It will be noted that section 14(b) refers to “amendment in pursuance of section 13” of the 1965 Act. This latter section, as amended by the Law of Property Act 1969, provided that:

“Regulations under this Act shall provide for the amendment of the registers maintained under this Act where—

(a) any land registered under this Act ceases to be common land or a town or village green; or

(b) any land becomes common land or a town or village green; or

(c) any rights registered under this Act are apportioned, extinguished or released, or are varied or transferred in such circumstances as may be prescribed;

[…]”

I say “provided”, because paragraph (a) of section 13 was repealed by the 2006 Act, as partially brought into force on 1 October 2006 by virtue of the Commons Act 2006 (Commencement No 1, Transitional Provisions and Savings) (England) Order 2006, SI 2006 No 2504. Yet article 3(3) of the order provides that

“(3) In relation to any area of England, section 13(a) of the 1965 Act and regulations made under it shall, until the coming into force of section 14 of the 2006 Act in relation to that area, continue to have effect insofar as they relate to land which ceases to be common land or a town or village green by virtue of any instrument made under or pursuant to an enactment.”

In like fashion, section 13(b) was repealed by the 2006 Act as partially brought into force on 20 February...