R (on the application of Cotham School) v Bristol City Council
Background
In its recent decision in R (on the application of Cotham School) v Bristol City Council, the Court has confirmed that the use of suitable signs can prevent land from being registered as a town or village green. This is good news for landowners and developers, as this is a tactic increasingly being used by local residents to defeat planning applications in their area for residential development.
Local residents using an area of land “as of right” for sports and other pastimes for a period of 20 years or more can lead to the land being registered as a town or village green, preventing development.
Use “as of right” is an essential requirement – under section 15 of the Commons Act 2006 – to the registration of land as a town or village green. Use of the land by force, stealth, by permission of the landowner, or carried out contentiously can prevent it being “as of right” and thereby defeat a claim.
The facts
In the case of R (on the application of Cotham School) v Bristol City Council, the land was used as playing fields by schools and local sports clubs through an arrangement with the local authority.Members of the local community had also been using the fields for recreational purposes. Accordingly, an application was made by the local residents to register the land as a village green on the basis that a significant number of local inhabitants had been using the land as of right for lawful sports and pastimes for at least 20 years.
There were 12 access points into the land. At least three of these access points displayed signs which read “Members of the public are warned not to trespass on the playing field” and “Private grounds” and invited them to seek permission from the Council’s Director of Education.
The signs had been erected by the local authority in the 1980s and were still visible when an inspector visited the site. The inspector was satisfied that the signs had been in place from the start of the qualifying 20 year period, had not been altered or removed, were still visible and had been seen by a number of the local inhabitants. He therefore regarded the signs as having made the public’s use of the land contentious and therefore not “as of right” and recommended that the claim be rejected.
The Council decided not to follow the inspector’s recommendation. The Council took the view that a small number of signs on a large site couldn’t make the use contentious. It also held that the land had continued to be used despite the presence of the signs and that the message given by the signs had changed over time to become ineffective. This meant that the use was no longer contentious and had become “as of right”. It therefore registered the land as a town or village green.
The School challenged the decision of the Council.
The decision
The court held that adequate and sufficient reasons must be given if a council decides not to follow the inspector’s recommendation. It also confirmed that – unless a higher court directs otherwise – signs stating that use of the land by the public is not permitted can mean that the public’s use of the land is unauthorised and not “as of right”, provided that there is no material change of circumstances after their erection.
The court stated that if a landowner make his or her position clear with visible signs, which are actually seen by the local residents, then subsequent unauthorised use will not be peaceable and cannot be “as of right”. This is a matter of fact for the inspector, who had been satisfied that the signs had been suitable and visible.
Practical considerations
This is a welcome decision for landowners and developers. However, this case demonstrates that it is important to ensure that an adequate number of signs are erected for the size of the land and that the signs are clearly visible. There is a risk that signs will fade, or be removed, damaged or obscured over time, so they should be inspected and replaced as necessary on a regular basis.
Another option open to a landowner is to lodge a landowner statement with the commons registration authority under section 15A of the Commons Act 2006. This brings to an end any “as of right” user without the time and cost of having to physically prevent access with costly fencing or maintaining signage. However, lodging such a statement creates a one year period for registration applications to be made based on recent qualifying user. Therefore, if the local residents have already accrued 20 years use, it could prompt an application to be made for the registration of the land as a town or village green.
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