Statutory incompatibility – what’s that all about?

The one big issue that Cotham School hoped would kill off these TVG applications is referred to, not very conveniently, as statutory incompatibility. This is the idea that if a local authority holds land for specific statutory purposes, and registration as a village green would be incompatible with those purposes, then the land can’t be registered even if all the parts of the legal test (like 20 years of ‘as of right’ use) are met. One statute (the Commons Act) would be incompatible with another (the Act setting the purpose for which the land is held).

There was a Supreme Court decision on this in late 2019, relating to two cases involving a school and a hospital, and the court said that the land couldn’t be registered. So of course Cotham thought it was exactly like the school in that case – except that that was a local authority-maintained primary school and the land in question was immediately adjacent to the school (in fact part of it was already being used to build new classrooms). There were other parts of the land that were further away from the school, but they were overgrown and unusable – if they were registered as a TVG it wouldn’t be possible to bring them into use for an educational purpose without changing the nature of the land, and the ability to do that is restricted by TVG registration). So the application for registration failed due to statutory incompatibility.

In the name of making the Stoke Lodge process quicker and more cost-efficient (an objective that hasn’t worked out in practice), the parties had to make separate submissions on what the Supreme Court decision meant for these applications, and then again on whether it should be considered as a preliminary issue (because Cotham thought it would be a ‘knock-out blow’). Consistently, the Inspector has said that our case is different because Cotham is an academy, not a maintained school. It holds the land (subject to the lease) for purposes set out in its articles but not directly for statutory purposes. And the Council can’t use the land for any statutory purpose until the 125 year lease expires. The Inspector specifically told Cotham School and the Council to proceed on the basis that they wouldn’t win on this issue and he repeatedly asked them for evidence about the signs – but they have both focused mainly on statutory incompatibility and provided no evidence at all to counter our evidence on the signs.

But both Cotham and the Council have a big problem with making this argument, because you have to find a specific statutory provision that is incompatible with registration. Cotham has a lease of the land to provide PE lessons, but there’s actually no statutory duty for an academy to offer PE. Even if there were, Stoke Lodge is already laid out for use as playing fields, and has been for decades. No change is needed to bring it into use for educational purposes – it’s been used that way for over half a century! And we know that Ofsted doesn’t require a fence around detached playing fields – the school can’t get away with claiming that any more.

From the Council’s perspective, there’s another problem: what they would be saying is that public access to detached playing fields is incompatible with the land being used to fulfil educational purposes. But schools across Bristol use pitches on public open spaces for PE – like Fairfield High at Muller Road Recreation Ground, for example, where the public has open access and can even walk dogs off-lead. Bristol Free School hires pitches at Doncaster Road Park, where the same rules apply. The new Temple Quarter school seems likely to end up using pitches in its local park. So where is the incompatibility?

It has always been a mystery why other schools can manage shared access perfectly happily, but Cotham School declares it to be impossible. But as we’ve pointed out before, when the PROWG committee decided to register the land in 2016, it turned out that the school was actually perfectly happy to do sports on a TVG and immediately applied for permission to rebuild the pavilion on it – so it seems this isn’t actually a genuine concern, just a tactic they hope will get them what they want – private use of this space that was meant for us all.