Breaking news on landowner statements

We’ve talked before about the long and vexatious struggle to get Bristol City Council to disclose correspondence about the possibility of making a landowner statement in relation to Stoke Lodge. If you want details of the FOI saga, click here.

A landowner statement is a mechanism under the Commons Act 2006 that allows landowners to protect land from registration as a town or village green and from claims for additional rights of way. The sole purpose of this is to ‘bring to an end any period of recreational use ‘as of right’ over land’:

That’s from the official DEFRA guidance, which also explains:

So, if a landowner has an opportunity to make a landowner statement before 20 years of ‘as of right’ use have accrued, and it wants to stop the clock on that use, it has a really easy way to do that. But if 20 years’ use are already in the bag, then depositing the statement might trigger a TVG application.

We know that Cotham School had been asking BCC to make a landowner statement for Stoke Lodge, and we know that no statement was made. We asked for copies of the correspondence around those discussions. And BCC said we were vexatious, but a month ago it changed its mind and said that actually the correspondence couldn’t be disclosed because it was legally privileged and/or internal communications and/or a live and ongoing matter.

The Information Commissioner has acted very quickly to look into this, in view of the relevance of the information to an active legal process. The ICO has ordered some of the material to be disclosed (but not the material that was legally privileged or genuinely covered by the internal communications exemption). The ICO had no truck with BCC’s claim that it was a live matter, because, as the case officer pointed out, BCC hadn’t restarted any such discussions until after the FOI request had been made (it seems as though someone thought that might be a cunning plan to avoid disclosure!).

We don’t yet have the documents that are due to be disclosed, but possibly the most significant statement is the one made by BCC to the Information Commissioner, underlined above. We now know that BCC got detailed legal advice about this issue, and on the basis of that advice it decided not to make a landowner statement ending ‘as of right’ use.

Remember that this is happening in 2018. Clearly, either BCC thought that ‘as of right’ use was still ongoing and it didn’t want to take action to stop that, or it thought 20 years of ‘as of right’ use had already built up, and it didn’t want to provoke another TVG application (which happened anyway because of the school’s stubborn refusal to talk about compromise solutions).

Either way, that absolutely confirms our case for registration. Neither Cotham School (because it was asking for a statement), nor the Council (because it decided not to make one), nor any of their legal advisers, thought in summer 2018 that ‘as of right’ use had ended. And that also means they didn’t think the Avon signs were effective either (otherwise ‘as of right’ use wouldn’t exist). They’ve spent an awful lot of time and money arguing the opposite, which is a real shame because it seems they actually agreed with us all along!