The offensive fence – what’s next?

As we explained previously (click here), the fact that Stoke Lodge was registered as a village green on 22 August means that certain legal protections now apply to the land:

• Section 12 of the Inclosure Act 1857 provides that the ‘interruption of the use or enjoyment’ of the green ‘as a place for exercise and recreation’ is a criminal offence. Action may be taken against both the person interrupting the use and the person in whom the land is vested.

• Section 29 of the Commons Act 1876 provides that encroachment on or inclosure of a town or village green, and any erection on the green ‘which is made otherwise than with a view to the better enjoyment of such town or village green or recreation ground’ is a public nuisance and a criminal offence.

So you would think that Cotham School would have dismantled the fence during the summer holidays once the land was registered, right?

Wrong! When we asked the school about its plans to remove the fence, we got an extraordinary letter back from its solicitor claiming that the fence was OUTSIDE the registered land so the criminal provisions didn’t apply. That’s right – it appears that the school’s advisers don’t actually know where the fence is! So we sent them a map and suggested that they reconsider their response in light of the facts.

As a fallback position, the school said that it didn’t need to comply with the law anyway because it was considering challenging registration. Firstly, that’s not a valid excuse – criminal law is not optional. You can’t just choose not to comply because you don’t want to or because it’s not convenient.

Secondly, about those possible legal challenges:

Cotham School has applied for permission for a judicial review of the PROWG Committee’s decision-making, while at the same time telling the court that it really doesn’t want to go to judicial review at all. Instead, it says that at some point in the future it might want to make a different claim under section 14 of the Commons Registration Act 1965, which asks the court to consider the issue of TVG registration for itself (i.e. back to square one, with multiple days in court and the cross-examination of witnesses). To set the stage for this application, the school asked the Council to go ahead and register the land, which it did on 22 August.

The school then went to the expense of preparing the judicial review claim form and supporting papers, but immediately asked the court to ‘stay’ (freeze) the application (before the other parties even had to acknowledge service). Effectively the school can now say that it is keeping open a legal option that it doesn’t want (and may not be permitted) to pursue. It has spent yet more money on legal moves instead of education, for something it openly says it doesn’t actually intend to do.

What about that section 14 application? On the most recent occasion where this was tried (TW Logistics v Essex CC), the registration (made in 2014) was upheld by the High Court in 2017, the Court of Appeal in 2018 and the Supreme Court in 2021 – that’s 7 years of very expensive litigation for an unsuccessful challenge. And there would be no costs protection available to the school in this litigation, so it would be putting well in excess of £100,000 of its reserves at risk. The individual defending the registered TVG alongside Essex County Council, on the other hand, benefited from costs protection throughout that litigation.

Does the school have that much money to spare for risky lawsuits? Apparently not: the school’s latest accounts (for the year ending 31 August 2022) showed that it had unrestricted funds of £763,131, of which it has to keep a significant amount on hand to pay salaries and manage cash flow, and which is also needed to pay for building improvements, rising energy costs, pay increases etc. It has committed to spending over £160k on new IT, which seems a much better use of money! Why would a school risk not being able to pay the bills, by gambling on expensive and uncertain litigation? Why take on any unnecessary costs at all, when things are so tight financially and when the school can still use Stoke Lodge for PE anyway, if it chooses to do so?

From the moment that the PROWG committee took the decision to register Stoke Lodge on 28 June 2023, we have repeatedly and publicly stated that we view this as an opportunity for a fresh start and would like to work with the school on rebuilding relations between the school and the community. We are disappointed to report that the school has not responded in any way to those overtures but has instead turned its efforts and resources to further unnecessary legal action. It has also announced today that it has decided to use alternative facilities at Golden Hill for PE lessons this academic year.

But maybe, once its advisers have had a closer look at the map, Cotham will think again about its offensive fence! Because the school can’t just leave it there during years of litigation (especially when the litigation is merely hypothetical). Ultimately, either the police or any individual from the local area can bring a prosecution in the magistrates’ courts to get the fence down, but we hope the school will set a better example than that to its pupils. And since we’ve already demonstrated that many schools provide PE on shared access playing fields without any need for locked gates etc, how could the school possibly justify throwing ever more money at lawyers instead of spending it directly on education?