Cotham School v Bristol City Council

Hearing dates: 27–31 January, 10 February 2025

This judgment was handed down remotely at 10:30 am on 10 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives

INTRODUCTION

General

This is my judgment following the trial of this claim brought under CPR Part 8 for an order amending the commons register kept by the first defendant, Bristol City Council (“the City Council”), in its capacity as commons registration authority for Bristol. The order sought is one to delete the entry relating to land known as Stoke Lodge playing fields (“the land”), in north-west Bristol. This land 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 use as school playing fields.

Some of the following introduction to this case is based on material taken from a judgment last year concerned with procedural matters in this claim (available at [2024] EWHC 154 (Ch), [2024] JPL 955). 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. The land has been registered as a town green, giving various rights of access to local inhabitants. The claimant school is taking these proceedings in order to cancel that registration, if it can.

What this case is not about

This is a case that has aroused a great deal of passion on each side. It really matters to the parties. Each side has tried its utmost to persuade the court that it is right. Each side has put in evidence and made arguments seeking to support a conclusion that, if it should not win, the consequences will be practically apocalyptic. Inevitably, one side (at least) will be disappointed by this judgment. But these consequentialist arguments, though they may be useful in the political arena, are of little assistance to a court of law.

In the present case, if the land is held to satisfy the test for a town or village green, the local residents will succeed, and any fences, gates and other restrictions may well prove impossible. 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 the school is right about that. More importantly, it 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. That is a political decision, which Parliament has made in enacting the relevant legislation. By virtue of that legislation, use of a certain kind and quality by certain people for a certain period enables the creation of a public right against the landowner. Use which is less than that does not. The matter is binary.

Either this case satisfies the requirements of that legislation, in which case the local residents succeed, or it does not, in which case the school succeeds, or at least may do so. The court's only functions are to decide whether the land concerned at the date of registration was, or was not, within the legal definition of a town or village green, and, if it was not, whether it is “just” to amend the register. These are questions 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. I trust that, if the media report this case, they will make this clear.

The position of the first defendant

My judgment in this case last year was concerned in part with the position of the first defendant, which was (and is) both the registration authority under the relevant legislation and also the freeholder of the land concerned. It had originally sought to play two distinct roles in the litigation, and filed two acknowledgments of service, one in one capacity and one in the other. I held that it could not do this, and could appear on the record in this case once only. In the event, the first defendant chose to oppose the order sought by the claimant, and appeared by leading counsel at the trial. It did not call any evidence of its own, and did not seek to cross-examine any of the witnesses who were called. But it did make submissions on the law, in defence of the authority's decision to register the land as a town green. It did not adopt a neutral position.

In TW Logistics Ltd v Essex County Council [2017] Ch 310, a similar claim to the present was brought by a landowner for the rectification of the register, against the registration authority. In pre-trial correspondence, the defendant's solicitors said:

“it is accepted that a registration authority … should maintain a strictly neutral stance in the exercise of its statutory function and we agree that it should not and confirm that it has not predisposed itself either for or against continued registration … Our client's position is one of neutrality and will continue to remain so.”

Subsequently, the claimant argued that in fact the defendant had not adopted a neutral position. Barling J summarised the defendant's position in this way:

“39. In its skeleton argument, Essex CC states that, whilst seeking to uphold its decision to register the Land on the evidence before the Inspector, it would take a neutral stance in relation to the additional evidence submitted in these proceedings, including the expert evidence of Mr Hibbert. Pursuant to that stricture, Mr Sharland did not cross-examine any of the witnesses called, nor did Essex CC call any evidence itself. Mr Sharland did not make submissions in respect of TWL's two new grounds of challenge, as they were not advanced before the Inspector and are, at least to some extent, based on the new evidence.”

After considering authorities, he concluded

“41. It seems to me that there is a danger of elevating what may be an appropriate position for such an authority to take depending on the circumstances, into a principle that it is under a duty to apply a self-denying ordinance. I see nothing in the Leeds case ( Leeds Group plc v Leeds City Council [2010] EWHC 810 (Ch), [2011] Ch 363, CA) nor in the dicta in [ Oxfordshire County Council v Oxford City Council] [2006] 2 AC 674 which denies the authority the right to take a more active role in section 14 proceedings, should it wish to do so. Lord Hoffmann simply referred to the absence of a duty on the part of the registration authority to investigate or to adduce new evidence.

42. Without having heard full argument, I am inclined to the view that the fact that the authority has a quasi-judicial role at the decision-making/registration stage does not and should not preclude it, where appropriate, from fully defending its decision in the context of a subsequent section 14 claim, including by challenging new evidence and new submissions and/or by calling new evidence of its own. By the same token, if, having heard new evidence and submissions, an authority were to take the view that its original decision was wrong, it would surely not be right for it to defend it.”

The point was not discussed when the case was taken to the Court of Appeal ( [2019] Ch 243) or the Supreme Court ( [2021] AC 1050). The approach of Barling J was not challenged in the present case, and I have not heard any argument, or had to rule upon it. Whether it is right or not can be left to another case where it arises as an issue between the parties. Whether it might affect questions relating to costs in this case is another matter, but that does not arise at this stage, and indeed may never arise.

BACKGROUND

History of Stoke Lodge

Stoke Bishop is a very old settlement. It is referred to in the Domesday Book of 1086 as Stoche. In old English, “ stoc” meant a dwelling or a place (like “stow” in Brigstowe, later Bristol). Under the feudal system, it was held of the king by the Bishop of Worcester (in whose ecclesiastical diocese it then lay, and who also owned the monastery at nearby Westbury on Trym). No doubt that is why it became known as Stoke Bishop. Until just after the Second World War, the land with which this case is concerned formed part of the grounds belonging to a substantial residential property known as Stoke Lodge. This had been built in 1838 on land which was formerly part of the Kingsweston estate, based on Kings Weston House (designed by Sir John Vanbrugh) near Lawrence Weston. Once built, the new property was occupied successively by a number of well-to-do local families, including at one time a scion of the well-known Fry family, chocolate makers. When it was originally built,...