13 ways the Council and Cotham School showed they didn’t object to informal use

Before the signs went up in the mid-1980s,  we know that Avon County Council had a policy of ‘tacitly accepting’ informal recreational use of its playing fields. Did the signs mean that the policy had changed? No, our evidence shows that wasn’t the case – both here and on playing fields elsewhere in the County, the Council continued to tacitly accept informal use.

Even if you think the signs communicated a clear message prohibiting use (which apparently is not how anyone ever understood them – and click here for our post on ambiguity), and even if you think two signs is enough on a 26 acre field with many formal and informal entrance points (click here for our post on sufficiency), you have to consider the impact of years and years of actions by the Council and Cotham School that were inconsistent with those signs. Those actions meant that the signs weren’t sending any clear message at all, which would mean that the signs weren’t effective to stop informal use being ‘as of right’. Here are some examples:

• In 1987 the gate at the West Dene entrance was locked by a new groundskeeper. In response to public complaints the Council ordered it to be unlocked to allow continued access at that point.
• In early January 1990 the Council went on record with a public statement, reported in the local press, that there were concerns about motorcycles accessing the field at the Cheyne Road entrance, so it was planning to install a kissing gate. That would have given unrestricted access to the entire field, from the main entrance at the lower end of the field (i.e. there was no concern about pedestrian access – although the gate was never actually installed). Click here to see the press cutting.
• On 23 January 1990 Avon made a formal Direction that, subject to providing for ongoing adult education use, all other matters relating to the control of school premises were for the school governing body, not the council – so Avon clearly had no policy of objecting to informal use from this date (more than 8 years before the 20 year period for these applications began).
• In the early 1990s a large branch fell off the veteran oak tree at the Cheyne Road entrance. The TVG1 public inquiry heard evidence that a groundskeeper had used a vehicle to push it so that it blocked the entrance – and was told by his boss to move it back into the field so that the public could still access the land (although it was left in a position that would make access for motorcycles difficult). It’s still there today.
• The Council’s evidence in TVG1 included this statement: ‘Staff were certainly aware that the land was used by the public for informal recreation. Reasonable use was never challenged’. That’s the Council’s own evidence.
• In the period from 1 September 2000 to 1 September 2011, Cotham School as the user of the land did nothing to make any protest clear. It repeatedly acknowledged over a period of years in formal legal contracts with the University of Bristol in relation to the management of the playing fields that ‘the site is open, at present, to the public and dogs’.
• In April 2010, the Cabinet Briefing Note recorded that there was ‘unfettered public access’ to the playing fields (we’ll talk about this in more detail soon).
• In September 2010, the Cabinet Member for Children and Young Peoples’ Services formally confirmed at a Neighbourhood Partnership meeting that the playing fields would remain unfenced with open access for all ‘as of right’ (again, more on this soon).
• Throughout the whole period, there was day to day contact between groundskeepers, school staff, club hirers and members of the public – many witnesses in the TVG1 public inquiry gave evidence of this, as did many of the 166 witnesses who gave statements for the current applications. In other words what was ‘visible’ on the ground included ongoing daily informal use that was unchallenged by groundskeepers or school staff (in fact witnesses gave evidence of frequent friendly conversations and interactions). 
• In 2011, when the lease was being negotiated, Cotham School asked for an indemnity from the Council in relation to trees and boundary walls. Its solicitor stated that ‘excluding the playing field use, this land seems to me to be essentially open amenity land within a residential area’. The Council didn’t contradict him, and it agreed ‘a much reduced repair clause… which varies substantially from the Academy model’ in recognition of that open amenity use, as well as providing the indemnity. So the school got (and still gets) financial benefits in recognition of the shared use of the playing fields.
• The lease was signed on 31 August 2011, recording formally that the school’s rights as tenant are ‘subject to all existing rights and use of the Property, including use by the community’.
• On 5 October 2011, the TVG1 applicant wrote to Cotham’s head teacher and chair of governors, commenting on the lease between Bristol City Council as landlord, Cotham School as tenant and the community as ongoing users ‘as of right’. The letter refers to maintaining ‘clear dialogue regarding the ongoing use of the Parkland by both your Academy and the Community, in the harmonious way currently enjoyed by both interested parties’. The headteacher’s response says: ‘Thank you for your letter concerning Stoke Lodge and your express wish to maintain our close and harmonious relationship. We completely echo your sentiments…’. He didn’t quibble with the statement that there was ‘as of right’ use in a ‘harmonious way’ – it was accepted by both parties.
• In the 2016 public inquiry, Cotham School’s Chair of Governors gave evidence that the School had been content with ongoing informal use of the Land in the period since 2000 and this was why the school had not put up any signs. That’s the school’s own evidence.

None of this evidence was contested by Cotham School or by the Council. How could they? It’s all documented. Well over 20 years of continuous informal use by the public for lawful sports and pastimes, without force, without secrecy and without permission. That’s ‘as of right’.