One of the issues that the parties have been arguing about in this TVG process is whether and when ‘as of right’ use of the field ended. Obviously neither the School nor the Council would be arguing about this at all if they thought ‘as of right’ use wasn’t going on – what they’re claiming is that use became contentious at some point from 2016 onwards, because that would mean a full 20 year period couldn’t be established.
You may remember that in July 2018 Cotham School abruptly removed the old Avon County Council signs from the site (without asking BCC first) and put up its own signs. In its objection to TVG2, Cotham told us that the new signs were intended to ‘restrict access to the site by members of the public’ and to ‘render use contentious’ – so the whole point of putting the signs up was to try to change the situation from ‘as of right’ to ‘not as of right’. That’s what they thought they were doing on 24 July 2018. The Council agreed with that interpretation, in its objection to TVG2.
The signs were very controversial at the time, and the Council’s planning enforcement team opened an investigation into the school’s actions. The issue came up at the school’s meeting with Gary Collins on 3 August 2018:
Clearly the barrister thought ‘as of right’ use had not ended, so the school should put up signs and/or fencing to achieve that. That means Cotham School, its legal advisers and the Council all thought that ‘as of right’ use was going on right up to 24 July 2018. And the local community objected to the new signs very strongly, so they didn’t think ‘as of right’ use had ended at any point before that, either. At least we all agree on something!
Why does this matter? Because Cotham is now trying to claim that ‘as of right’ use ended earlier than this, possibly because of the public inquiry in 2016. Or possibly because of its proposal to put up a fence in May 2018 (but the Council objected to that) or possibly because of the PROWG decision in June 2018 (but that only actually decided that use was not ‘as of right’ between April 1991 and April 1996).
The fact that Cotham finds it so difficult to pin down a date when it thinks ‘as of right’ use ended is a pretty clear indication that it didn’t actually happen, and that no such message could possibly have been communicated to users of the field. It’s clear that the school was trying to end ‘as of right’ use on 24 July 2018 and that this is what its advisers were telling it to do – but of course whether the signs were valid and effective would depend on whether it had power under the lease to restrict informal use and whether it had put up enough, clearly-worded, signs. Since Cotham had essentially copied the wording of the ambiguous Avon signs and put them up in the same three places, and since its use was subject to community use anyway, the community never thought the signs were valid.
Because it thought ‘as of right’ use was still ongoing, the school was also pursuing its request for a landowner statement, which is another smoking gun for the TVG applications.
In autumn 2018 Council officers waved through two of the new signs as ‘advertisements’ but required the school to seek planning permission for the third. That application was rejected by Development Control Committee B on 19 December 2018 with Councillors saying the following:
The councillors clearly weren’t keen on what the school had done: note the comment that ‘planning consent cannot be used to restrict or prevent free public access to the land’ – but the TVG3 application relates to a period ending just before the signs were put up, so we haven’t needed to spend extra legal funds arguing this specific point.
The issue, in the end, is that since neither Cotham School nor the Council thought ‘as of right’ use had ended before the signs went up, there’s no reason to think that local residents should have thought that. After all, the school was paying an expert barrister to analyse the position for them, and he thought ‘as of right’ use was still ongoing! This argument against registering the land as a TVG just doesn’t work.
We need to talk about Stoke Lodge 