Commons registration –Town or village green – Amendment – Claimant holding long lease of playing fields – Land registered as town green on application of local resident – Claimant seeking order amending register to delete playing fields – Whether land meeting statutory criteria for registration as town or village – Whether registration compatible with statutory purposes for which held – Claim allowed
The claimant was an academy school, which in 2011 was granted a long lease of land known as Stoke Lodge playing fields in north-west Bristol. The land was registered as a town green in 2023, after an application by the second defendant local resident under section 15 of the Commons Act 2006.
The claimant sought an order amending the register kept by the first defendant in its capacity as commons registration authority to delete the entry relating to the playing fields. It wished to be able to control the land, including the use of fences and gates, primarily to ensure the use of the land as school playing fields, but secondarily to allow it to be used for the purposes of local recreation.
The local residents wished to have unrestricted access to the land at all times and objected to any fences and gates, and any other restrictions imposed by the claimant. When the land was registered as a town green, local inhabitants were given various rights of access to it.
If the land was held to satisfy the test for a town or village green the local residents would succeed, and any fences, gates or other restrictions might prove impossible. The claimant argued that, in that case, it would be unable to use the land for the purposes of school playing fields, for security, health and safety reasons (amongst others).
Held: The claim was allowed.
(1) The doctrine of statutory incompatibility in the context of the law of town and village greens did not appear expressly in the legislation. However, the Supreme Court had held that town and village green legislation did not apply to land where there was an incompatibility between the statutory purposes for which the land was held and the use of that land as a town or village green.
The test was not whether any particular duties lay on, or any particular powers were attached to, the holder of the land. Instead, it was: (i) whether the land was held for statutory purposes; if so, (ii) what those purposes were; and (iii) if it was held for such purposes, and those purposes had been identified, whether they were incompatible with registration as a town or village green: R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] EGLR 29; [2015] AC 1547 and R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs and R (NHS Property Services Ltd) v Surrey County Council [2020] EGLR 4; [2021] AC 194 applied.
In the present case, the statutory education purposes for which the land was held were incompatible with registration of the whole land as a town or village green. It prevented the physical education of the children in compliance with the law, and it prevented the use of the land for other education purposes, including the construction of new premises. So, it should never have been so registered.
(2) The Commons Act 2006 required use “as of right” for at least 20 years before land could be registered as a town or village green.
It was clear that acts of protest by the landowner might be other than simply speaking to people directly or erecting signs. The important thing was whether, objectively speaking, they demonstrated such protest and, in the context in which they were made or took place, they were sufficient to indicate that protest to relevant members of the public: R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] PLSCS 253; [2004] JPL 975 considered.
In this case, there were signs warning members of the public not to trespass at the two vehicular entrances to the land. Even though the land measured some 22 acres in extent, the nature of its layout and the use made of it by members of the public meant that most people using the land, and certainly all habitual users, became aware of the signs. Therefore, use of the land by members of the public was contested and not “as of right” during the many years that the signs were on the land.
Further, an earlier non-statutory public inquiry relating to a previous application, constituted an open public forum in which both the claimant and the first defendant were able to express their views on the desirability of unrestricted public access. The position advanced by the claimant to the first defendant at that public inquiry constituted a sufficient form of protest against unrestricted public access to the land for the purpose of rendering that access not “as of right”.
(3) The terms of the lease construed as a whole did not grant any permission or right to use the land to the local community. However, if the lease did grant such permission or other right, the use would be “of right” and not “as of right”, and accordingly it could not be taken account of for the purposes of registration: Ashburn Anstalt v Arnold [1989] Ch 1, R (Cheltenham Builders Ltd) v South Gloucestershire District Council [2004] 1 EGLR 85; [2004] 4 PLR 95 Newhaven and R (Barkas) v North Yorkshire County Council [2014] EGLR 115; [2015] AC 195 considered.
(4) It was not necessary to draw a line at any precise point when considering whether 20 years continuous use by the public had been interrupted. The land was extensively used for cricket, football and athletics. Whilst the amounts of time involved were not great, the public were excluded during the games which happened on several days a week during school term-time. Accordingly, the public did not have continuous use of the land during the 20-year period: R (Lewis) v Redcar & Cleveland Borough Council (No 2) [2010] 1 EGLR 153 and v TW Logistics Ltd v Essex County Council [2021] EGLR 16 distinguished. Mayor of Southport v Morriss [1893] 1 QB 359 considered.
(5) In all the circumstances, the land should never have been registered and it was “just” within section 14 of the Commons Registration Act 1965 to rectify the register by deleting the entry relating to the playing fields.
Ashley Bowes (instructed by Goodenough Ring) appeared for the claimant; Douglas Edwards KC (instructed by Bristol City Council Legal Department) appeared for the first defendant; Andrew Sharland KC (instructed by Direct Access) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Cotham School v Bristol City Council and another
