Cotham School v Bristol City Council & Ors
| Court | Chancery Division |
| Judge | Hhj Paul Mat |
| Neutral Citation | [2024] EWHC 154 (Ch) |
| Date | 02 February 2024 |
| Year | 2024 |
| Counsel | Ashley Bowes,Paul Wilmshurst |
Neutral Citation Number: [2024] EWHC 154 (Ch)
Case No: PT-2024-BRS-000009
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Date: 2 February 2024
Before :
HHJ PAUL MATTHEWS
(sitting as a Judge of the High Court)
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Between :
COTHAM SCHOOL Claimant
- and -
(1) BRISTOL CITY COUNCIL
(2) KATHARINE WELHAM
(3) BRISTOL CITY COUNCIL
Defendants
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Ashley Bowes (instructed by Harrison Grant Ring) for the Claimant
Douglas Edwards KC and Michael Feeney (written submissions only, instructed by Bristol
City Council Legal Department) for the First Defendant
Andrew Sharland KC (instructed by Direct Access) for the Second Defendant
Paul Wilmshurst (instructed by Bristol City Council Legal Department) for the Third
Defendant
Hearing dates: 24 January 2024
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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.
HHJ Paul Matthews
Approved Judgment
Cotham School v Bristol City Council
HHJ Paul Matthews :
INTRODUCTION
1. 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
2. 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
3. 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]
BPIR1218, [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
4. 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
2
HHJ Paul Matthews
Approved Judgment
Cotham School v Bristol City Council
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.
5. 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
6. 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.
7. 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,
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
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.
8. 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:
3
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