Bristol City Council acted unlawfully in failing to follow the Inspector's recommendation not to register school playing fields as a town or village green (TVG), the High Court has ruled.

The Inspector had reached the conclusion that the land was not being used "as of right", as required by the legislation. However, despite this, Bristol City Council registered the land as a TVG.

When can land be registered as a TVG?

Under the Commons Act 2016, any person can apply for land to be registered as a TVG where a significant number of inhabitants of any locality, or of any neighbourhood within a locality, have indulged, as of right, in lawful sports and pastimes on the land for a period of at least 20 years.

The Inspector's view

The case of R (on the application of Cotham School) v Bristol City Council [2018] concerned Cotham School's playing fields. In 2016, an Inspector carried out a non-statutory public inquiry, following which he recommended that the land should not be registered as a TVG. Whilst he found that a significant number of inhabitants of the locality had used the land for recreational purposes, he concluded that they had not done so "as of right". Signs stating that "Members of the public are warned not to trespass on the playing field" were on the land. This was sufficient to render the public's use of the land contentious.

What made Bristol City Council's decision unlawful?

It is clear that public support for the registration of the playing field as a TVG played a part in the committee's decision.

The two grounds on which the case succeeded were that the registration authority (Bristol City Council) had:

  • erred in law when it concluded that the use of the land by local inhabitants was "as of right"; and
  • failed to provide adequate and sufficient reasons for reaching that conclusion.

Was the use "as of right"?

The court found that the Inspector's analysis of the law relating to the phrase "as of right" was correct. He was also correct in his view that the erection of signage was sufficient to mean that the use by the public was not "as of right".

Sir Wyn Williams stated that the committee was not, in his view, entitled to reach a different conclusion from that of the Inspector as to the legal significance of the signs. He said that "The Inspector's view was clear, namely, that between 1991 and 1996 the signage which existed on the land was sufficient to make the use of the land by the local inhabitants contentious. I simply do not accept that the committee addressed its mind to this part of the Inspector's findings which were central to the issue of whether 20 years' user "as of right" had been established."

Did Bristol City Council provide sufficient reasons?

The majority of the committee was of the view that three signs warning the public not to trespass were not sufficient given the area in question. However, they did not give reasons explaining how this conclusion had been reached. As Sir Wyn Williams said "There was no attempt by the Committee to explain the significance or lack of it of the finding by the Inspector that a substantial number of persons using the site had seen the signs. As is clear from his report that finding was crucial to the Inspector's reasoning and yet, apparently, it was ignored by the Committee."

The fact that the Bristol City Council had failed to provide adequate and sufficient reasons for reaching the conclusion that the use was "as of right" rendered its decision unlawful.

Was there statutory incompatibility?

We recently reported on the Court of Appeal's decision on statutory incompatibility in two TVG cases. The issue of statutory incompatibility also arose in this case. In line with the Court of Appeal decision, the court in this case decided that there was no statutory incompatibility, stating that it did not consider that "the legislative provisions relating to the disposal of playing field land held for the purposes of an academy preclude the registration of such land as a town or village green."

What should registration authorities do?

It is clear that care must be taken when registering land as a TVG, particularly when doing so against the recommendation of an Inspector. Failure to follow the proper procedures opens authorities to legal proceedings. The registration of land as a TVG has substantial implications for any landowner restricting its use to only those that are compatible with its status as a TVG. Whilst members of committees might sympathise with local people trying to protect local spaces, they must make decisions in accordance with the law relating to TVGs and should be advised accordingly by their officers.