The 2010 Cabinet Briefing Note

If only there was a really easy way to know what Bristol City Council thought about ‘as of right’ use of Stoke Lodge during our TVG application period… oh wait, there is! There’s a whole Briefing Note to Cabinet from April 2010 that lays it all out. The note is written in the context of proposals that were made to develop sports facilities at each of Stoke Lodge Playing Fields and Purdown, including fencing off the land (see our earlier Timeline post). 

The recommendation of the report is that public access should be maintained where possible. It says that the Stoke Lodge and Purdown development schemes have been frozen ‘until a decision on the future of open access to school playing fields is made’ – which obviously tells us that open access was happening in practice at that time. 

Describing the proposals, the report refers to ‘Stoke Lodge Playing Fields – the proposed exclusion of public access to school playing pitches’ – so it’s very clear that this exclusion had not already happened, for example because of the old Avon County Council signs or BCC’s installation of the 2009 sign just 10 months previously.  In fact the report says that ‘The playing field is currently unfenced and allows unfettered community access’. This proves that the Inspector was wrong to conclude in TVG1 that the Council put up that 2009 sign intending it to refer to the playing fields. 

The Briefing Note also sets out the correct legal position under education legislation (that the use of the playing fields was under the control of the relevant school’s governing body, subject to any directions given by the local education authority) and details several aspects on which the Council had obtained specific advice from an expert barrister. It makes clear that the Council was aware of ongoing informal use of Stoke Lodge. It states that: 

• The expert legal advice given to the Council in December 2009 was that playing fields should remain open to public access unless governing bodies decide otherwise and that the Council ‘should seek to persuade’ school governing bodies ‘that they themselves should willingly adopt a policy of open access’. In other words the Council had clearly neither permitted use by making a Direction that would bind schools (although it had the power to do that), nor had it restricted use – it was acquiescing to informal use by local inhabitants and seeking to encourage schools to do the same.
• In relation to possible TVG applications, due to recent court decisions landowners wishing to avoid land becoming a TVG ‘now need to proactively take steps to keep people [off] their land to prevent future registration’ (this is also referred to in the report as ‘active steps to exclude recreational trespassers’).
• Stoke Lodge ‘is currently unfenced and allows unfettered community access’. 

So, having taken legal advice, the Council’s clear position was that informal use was not restricted in any way (it was ‘unfettered’) – so neither the 2009 BCC sign nor the earlier Avon signs were effective to prevent ‘as of right’ use.

Remember, this Briefing Note was written more than 20 years after 23 January 1990, which was the date when Avon County Council made a Direction indicating that it was not imposing any policy on informal access to playing fields. Given the lack of any objection to informal use by Fairfield School or Cotham School in the interim, that’s already 20 years of ‘as of right’ use in the bag. And the BCC Cabinet knew it had power to end that use, but did nothing – because in fact it was in favour of shared use continuing, as long as the relevant school did not object.

And when the Committee’s December 2016 decision to register Stoke Lodge as a TVG was considered in the High Court, the Council’s position was that:

• Given that Cotham School took the lease after the [2011] TVG application had been made and that shared use was then being carried on, the school was aware of the position and potential implications [of registration as a town or village green].
• Registration would reflect what has been the position on the land for at least the twenty-year period prior to the application.
• ‘It appears that the land has been used for a very long period for recreational purposes by the local community and the importance of the protection of recreational uses that arise from [TVG] registration should not be overlooked’.

Case closed? You would think so, but stay tuned…