As things stood at the end of September 2018, Cotham School had been told that the Council had decided to remove curtilage status from Stoke Lodge, but that it would have to comply with BCC’s requirements on the height, design and layout of the fence to get landlord approval – a minimal level of control over Cotham’s plans, but all that was applicable after the curtilage u-turn. We also know that the Council’s view was that less fencing (not encircling the whole field) and fencing of a more appropriate design for a heritage parkland estate would be required.
But then it seems that someone noticed that clause 3.5.2 of the lease states that the school is: “Not to erect any buildings or other structures on the Property nor make any structural or external alterations additions or variations to any structures for the time being on the Property”. And, when this was pointed out, the Council decided that it didn’t want to be involved in giving (or withholding) consent to the fence. And so its legal team was asked to give another view – this time on whether it could be said that the fence was not actually a structure after all.
We’ve been told that the legal team came back with the following comments:
- [The barrister] has already decided that planning permission is not needed, and it is therefore not unreasonable to assume, for the purposes of the lease, that the fence is not a structure.
But this means, of course, that one faulty decision has been used as the basis for another. And in any case, you can build a conservatory or a garage without planning permission if you meet the right conditions – that doesn’t mean those aren’t structures! This is a completely false assumption based on a bad foundation. It’s nonsense. - The Landlord is not concerned with the day-to-day management of the premises.
No, but the Council as landlord should be concerned with whether its tenant is keeping to the terms of its lease. It appears that whoever looked at this clause didn’t bother to read the lease as a whole, including the community use provision. And in any case, installing a 1.6km long, 2m high fence and concreting it into the ground is absolutely not ‘day to day management’ of the premises. It’s something very different. - It could be argued there is a statutory duty to fence the land for the protection and safeguarding of the children using it. In which case, the Council’s consent is immaterial.
But it was well known by this time that there is no statutory duty to fence the land – Ofsted had already confirmed it does not require fences around detached playing fields. That had received wide coverage in the local press. There is no excuse for the Council using this line if it had been acting as an honest broker and seeking the truth. Instead, it seems to have been looking for an answer that was convenient for avoiding responsibility for the consequences of its actions.
BCC’s Monitoring Officer reviewed this but apparently didn’t agree with all of it. His view was that ‘In the case of long leases such as this one the Lessee is responsible for the maintenance of the land and for ensuring that it is fit for purpose’ – but again, Ofsted had made very clear that playing fields can be fit for purpose without a fence, and installing a huge fence is very obviously not ‘maintenance’. And just because a lease is long, that doesn’t mean the terms expressly written into it – like ongoing community use – can be ignored. As a lawyer, the Monitoring Officer knows this – so why give such a lame response? It might suggest that he just wanted to give a reason (even an invalid one) to support the decision that had already been made.
And of course it’s on this basis that Mayor Marvin Rees went on to say to a highly sceptical audience at Full Council that ‘the fence is not a structure’ (click here) and that ‘I really don’t have power over this. It’s been through the Monitoring Officer’ (click here).
This is how it happens. It’s how the game is played. This is how we lose access to our green spaces all around Bristol.
We need to talk about Stoke Lodge 