The High Court decision

An update – not the one we wanted to be making!

The High Court has handed down a lengthy judgment in the matter of Cotham School v BCC & others – the Stoke Lodge Village Green case. It runs to 112 pages and 329 paragraphs, and resulted in a finding that Stoke Lodge playing fields did not meet the legal test to be registered as a village green.

This is unexpected and very disappointing. We are giving detailed consideration to the judgment and grounds for appeal. The Judge made very clear that he was only considering the legal test – and going forward, any appeal will also consider legal issues only.

HHJ Paul Matthews was very clear, though, that he was not deciding:

• Whether Cotham School was correct in claiming that if the land was a village green, it would be unable to use it as playing fields.  In fact, he noted that the school had previously considered other options, such as only fencing part of the field (which would leave the rest still available for club sports hire and informal community use).
• Whether use by the school was more important or less important, or more or less in the public interest, than use by the wider community.

He noted that if the position had been made clearer in the past, the litigation might never have arisen: ‘It is unsurprising that local inhabitants thought they were in the right. In purely political terms, they may have had the better of the argument.’

Cotham School, in response to the judgment, has said that it will ‘review how the site will be remobilised’ and will provide further updates on its plans in due course. We hope that it will undertake a serious rethink of its previous approach, given the enormous controversy it created. The school has for a number of years taken an unremittingly hostile approach towards the local community around Stoke Lodge, but as a result of falling pupil applications from its city centre base, is now actively advertising to parents in BS9, hoping to attract pupils from this area. Can we expect a less hostile, more cooperative approach, in these changed circumstances?

If the school is ultimately able to put up a fence again in the future, then since there are four public rights of way in the process of registration across the land (and the judge noted that the lease would protect any such rights as part of ‘all rights and use by the community’) it would obviously be foolish to try to block those routes. Perhaps we will see evidence of greater consideration of these issues when the school publishes its remobilisation plans.

However, the immediate priority is for us to take advice on next steps and grounds for appeal. The Judge said ‘I do not doubt that, given the strength of feeling on both sides in this case, the dispute will go further’ and, in his final paragraph, ‘I am under no illusion that the dispute between the parties will stop here.’