Cotham School, R (On the Application Of) v Bristol City Council, Court of Appeal - Administrative Court, May 03, 2018, [2018] EWHC 1022 (Admin)

Issuing Organization:Administrative Court
Actores:Cotham School, R (On the Application Of) v Bristol City Council
Resolution Date:May 03, 2018
 
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Neutral Citation Number: [2018] EWHC 1022 (Admin)

Case No: CO/1208/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 3 May 2018

Before:

SIR WYN WILLIAMS

(Sitting as a Judge of the High Court)

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Between:

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The Claimant was represented by Richard Ground QC and Dr Ashley Bowes (instructed by Harrison Grant Solicitors)

The Defendant was represented by Stephen Morgan (instructed by The Defendant's Legal Services Department)

The First Interested Party was represented by Andrew Sharland QC (instructed by DAC Beachcroft)

The Second and Third Interested Parties did not appear and were not represented

Hearing dates: 21 and 22 November 2017

Further written submissions on behalf of the Claimant dated 20 April 2018, the First Interested Party dated 22 April 2018 and the Defendant dated 23 April 2018

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Sir Wyn Williams:

Introduction

  1. The Defendant is the registered owner of the freehold interest in an area of land known as Stoke Lodge Playing Fields, Shirehampton Road, Stoke Bishop, in the city of Bristol (hereinafter referred to as ``the land''). It is also the Commons Registration Authority empowered to register land as a town or village green pursuant to section 15 Commons Act 2006 (``the 2006 Act''). In the remainder of this judgment I will refer to the Defendant either as ``Bristol City Council'', ``the landowner'' or the ``registration authority'' as the context dictates.

  2. On 7 March 2011 the First Interested Party, Mr Mayer, made an application to the registration authority to register the land as a town or village green. He was acting on behalf of an unincorporated association known as ``Save Stoke Lodge Parkland''. Objections to the application were received from the landowner, the Second and Third Interested Parties and the Claimant. In the face of conflicting views about whether the land should be registered the registration authority decided that it would appoint Mr Philip Petchey (hereinafter referred to as ``the Inspector'') to make a recommendation about whether the land should be registered. At the time of his appointment in 2011, the Inspector was a barrister in private practice with considerable relevant expertise and experience.

  3. On 22 May 2013, the Inspector issued a report in which he recommended that the land should be registered as a green. However, that recommendation was not implemented. In the years immediately following the publication of the Inspector's report there were a number of cases proceeding through the courts which were relevant to the issues raised in this case. Ultimately a decision was taken that before a decision was made as to whether the land should be registered the Inspector should conduct a non-statutory public inquiry at which oral evidence would be given before him by all those who wished to attend the Inquiry and give such evidence.

  4. Over 9 days during June and July 2016 the Inspector conducted such an inquiry. Mr Mayer represented Save Stoke Lodge Parkland; Leslie Blohm QC represented the landowner; Richard Ground QC and Ashley Bowes represented the Claimant. They each called a number of witnesses although most of the witnesses were called by Mr Mayer on behalf of Save Stoke Lodge Parkland. On 14 October 2016 the Inspector produced a comprehensive written report. In it, he recommended that the land should not be registered as a green. He expressed the view that one aspect of the statutory test for registration had not been satisfied - as to which see below.

  5. The Inspector's report was considered at the Public Rights of Way and Greens Committee of Bristol City Council (``the committee'') at a meeting which took place on 12 December 2016. In advance of the meeting a large number of representations were sent to the committee by local inhabitants. A substantial number urged the committee to reject the Inspector's recommendation and grant the application for registration. Members of the committee were provided with a written report prepared by officers of Bristol City Council in which it was suggested that the committee should accept the Inspector's recommendation. At the meeting oral submissions were made by a number of persons. In the event the committee resolved (on the Chair's casting vote) to reject the Inspector's recommendation and to grant the application for registration.

  6. Currently, the land is occupied by the Claimant. It has been occupied since 31 August 2011 pursuant to a lease granted by the landowner for a term of 125 years commencing 1 September 2011. It is common ground that the creation of the lease was and is no bar to the registration of the land as a green.

  7. In these proceedings, issued on 9 March 2017, the Claimant seeks an order quashing the decision of the committee. It alleges that the decision of the committee is vitiated by legal errors and five grounds are advanced which, it is submitted, justify the making of a quashing order.

  8. The application for a quashing order is resisted, strenuously, by the registration authority and Mr Mayer. The primary contention of both is that none of the five grounds advanced by the Claimant is made out. However, with varying degrees of enthusiasm, it is also submitted that even if one or more of the grounds are made out, no relief should be granted to the Claimant. At the conclusion of the oral hearing before me it was agreed that this judgment should focus upon whether any of the grounds of challenge were made out. In the event that I found that one or more of the grounds were made out, the issue of withholding relief would be dealt with discretely either at or following the handing down of judgment.

  9. During the course of the hearing I was informed that two first instance decisions relevant to the resolution of ground 5 had been the subject of appeals to the Court of Appeal. In that court the appeals were heard together and they are now reported as R (Lancashire CC) v Secretary of State for the Environment, Food and Rural Affairs and R (NHS Property Services Ltd) v Surrey CC [2018] EWCA Civ 721. At the hearing it was not known when judgment would be given by the Court of Appeal. I expressed the view that my own consideration of ground 5 would be assisted by waiting for the Court of Appeal to hand down judgment. In the event judgment was handed down in the appeals on 16 April 2018.

    The nature of the land, its history and the relevant physical features upon it.

  10. The Inspector's report of 14 October 2016 contains a detailed account of all these matters which is accepted by the parties to be accurate or, at least, not challenged in these proceedings. In consequence this section of my judgment is a short summary of the Inspector's findings so far as they are relevant to the issues which I must determine.

  11. The land has an area of approximately 22 acres. It is mostly grassland which ``wraps around'' a large Victorian house called Stoke Lodge. The area which is the subject of the application for registration was, originally, the grounds of the house. The house itself and its immediate surroundings are not part of the application. Shortly after the end of the Second World War the then landowner sold to Bristol City Council, as it was then constituted, approximately 5.5 acres of the land for the purpose of temporary housing. The house and the remainder of the land were sold to the Council in 1947 for educational purposes. Shortly after this transaction the 5.5 acres originally sold for temporary housing were appropriated for educational purposes.

  12. Within a comparatively short time of the disposals to the Council, large parts of the land were laid out as playing fields. There have been football and rugby pitches on the land in the winter and a cricket field and an athletics track in the summer for many years. Until about 2000 these pitches were used as school playing fields for Fairfield School; thereafter Cotham School became the user of the pitches. Over many years the pitches were also used by local sports clubs under arrangements made with the schools and/or the local education authority.

  13. Following the coming into force of the Academies Act 2010, Cotham School became an academy. The Claimant, which is a company limited by guarantee, operates and manages the academy.

  14. The land is not entirely typical of playing fields. There are a number of trees upon it - not all confined to the perimeter. Further it is not entirely flat. It has a slightly rolling character which has the effect of enhancing its generally attractive appearance.

  15. Following the sale of the land in the 1940s until 1974 the land was owned by Bristol City Council. Upon re-organisation of local government in 1974, Avon County Council became the landowner. Following further local government re-organisation the county council ceased to exist in 1996 whereupon the land was again vested in Bristol City Council.

  16. There are a number of access points to the land which have existed for many years. These are shown numbered 1 to 12 upon a plan within the Trial Bundle (page 195). Some of the 12 access points depicted upon the plan are, on the ground, more than one point of access albeit in close proximity to each other. The same plan and a photograph at page 194 show the relationship between the land and the residential areas nearby.

  17. As at the time of the Inspector's inspection there was a sign measuring about 4 feet 6 inches x 2 feet 6 inches (about 1.37m x 0.76m) situated in close proximity to access point 3. It had upon it in bold the following words:-

    ``MEMBERS OF THE PUBLIC ARE WARNED NOT TO TRESPASS ON THE PLAYING FIELD''

    It went on to prohibit named activities which caused nuisances and threatened that persons committing any such nuisances would be liable to prosecution. Any person wishing to be authorised to use the playing field was advised to make a request to the Director...

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