In R(Cotham School) v Bristol City Council  EWHC 1022 (Admin.) the High Court was asked to consider whether Bristol City Council had acted unlawfully by departing from the recommendation of their appointed Inspector to register a school's playing fields as a new village green.
Land may be registered as a village green, preventing use of the land in a way which interferes with public recreation, if a significant number of the inhabitants of a locality or a neighbourhood within a locality have indulged, as of right, in lawful sports and pastimes for at least 20 years ending on the date of the application, or not more than a year prior.
Having heard evidence over 9 days at a public inquiry, a barrister-inspector recommended that the application is rejected on the basis that signs erected on the land rendered the use of the land contentious and that all the users would have seen the signs. However, the Council's Committee resolved to depart from that recommendation on the basis that there were insufficient signs to render the use contentious.
Sir Wyn Williams (sitting as a Judge of the High Court) held that:
1. "Where an owner of land has made his position about its use clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be 'as of right'" at .
2. The minutes revealed that the Council's Committee accepted that when the signs were erected they served to render the use of the land contentious. However, "having accepted a crucial finding by the Inspector as to the legal significance of the signs when they were first erected, failed, erroneously and unlawfully, to analyse the evidence and the further findings of the Inspector as to when, if at all, the situation 'on the ground' had changed materially so as to permit of a conclusion that the signs were no longer sufficient to make contentious the use of the land by the local inhabitants" at .
3. The Committee failed to supply adequate reasons for departing from the Inspector's conclusion that the erection of the signs rendered the use contentious, at least until a number of years into the qualifying period at .
The Judge rejected the contention that registration of the land was precluded by the doctrine of statutory incompatibility. Applying the recent Court of Appeal judgment in R(NHS Property Services Ltd) v Surrey CC  EWCA Civ. 721, the Judge found that:
1. Registration would not preclude the carrying out of the School's duties to provide suitable outdoor space for PE, albeit more inconveniently, at .
2. Registration would not amount to a "disposal" without consent of the Secretary of State contrary to paragraph 17 Schedule 1 Academies Act 2010 at .
The Judge raised the interesting prospect of the Secretary of State intervening "to argue that in a particular case registration would fall foul of the principle of statutory incompatibility" at .
The judgment can be found here.
Richard Ground QC and Ashley Bowes appeared for the successful Claimant in the High Court and through the public inquiry, instructed by Harry Campbell of Harrison Grant Solicitors.
Ashley Bowes also appeared for the successful appellant in R(NHS Property Services Ltd) v Surrey CC  EWCA Civ. 721.