Category: Cotham School

Fact-checking: how much space does Cotham need, and what for?

May 23rd, 2023

We mentioned in the previous post the witness statement submitted to the TVG1 public inquiry by Cotham School’s Headteacher Jo Butler, in which she made various statements to support Cotham’s case for why Stoke Lodge shouldn’t be registered as a Village Green. In today’s fact-checking post we’re going to look at that in more detail.

First, Ms Butler claimed that Ofsted required detached playing fields to be fenced, and we’ve already dealt with that – Ofsted has confirmed that’s not true. Next, she said that the school’s space requirements were such that they need the whole of Stoke Lodge – in fact she says they need the arboretum too even though it’s outside their lease (greedy!):

There are a few problems with these calculations. First, the ‘space requirement’ is a guideline, not a requirement as Ms Butler claimed. Secondly, the pupil admission number for Cotham School is 1215 at ages 11-16, not 1480. We assume Ms Butler is adding in the pupils in the Post-16 Centre there. And based on satellite mapping, both the school’s on-site space (including the multi-use games area and artificial pitch) and the size of the leased area at Stoke Lodge is greater than the school has estimated. When you tally all that up, the extra offsite space indicated by the guidelines is about half of the leased area at Stoke Lodge – which isn’t a surprise, because the school typically only uses the top end anyway.

Next, Ms Butler says that ‘because Stoke Lodge is not fenced’, Cotham is having to pay £25k per year to hire facilities at Coombe Dingle Sports Complex.

This is clearly untrue, because we know that Cotham had been hiring facilities at CDSC since before 2000 (it stopped using its former playing fields on Kellaway Avenue in the late 1990s because it thought they weren’t of a high enough standard – those are now the playing fields of Redland Green School). And we have the data on hire costs paid by Cotham to CDSC from September 2011 onwards, and they increase year on year by inflation – there is no massive uptick in April 2014 after the school did its ‘risk assessment’. The truth is that Cotham already had its hiring arrangements in place before it abandoned use of Stoke Lodge, and carried them on in exactly the same way it always had done. What changed was that it didn’t want to pay to hire CDSC any more, which is fair enough but is not a reason why the public should lose the use of important open space. And by the way, CDSC didn’t have a perimeter fence all the way round at the time either, and there is public access to and through the site. So there’s that.

But towards the end of Ms Butler’s statement, we see a hint of something else coming through – the reason why Cotham really doesn’t want Stoke Lodge to be registered as a TVG. It’s not to do with public access (although the school is clearly very antagonistic towards the local community). No, it’s this:

If Stoke Lodge is registered as a Village Green, it will be difficult for Cotham to develop and commercialise it. Cotham doesn’t want grass pitches on important open space and rolling parkland, it wants artificial pitches (which would have yet more fencing and probably floodlights); it wants hardstanding for cars and coaches – it wants facilities to rent out, even though CDSC is better-equipped and only a couple of minutes’ walk away.

This is why the TVG is necessary – without it, this historic parkland estate will be lost under concrete and tarmac.
Fact-checking Cotham’s risk assessment

May 22nd, 2023
We’ve already talked about how Cotham School told parents and carers at the school, and officers at the Council, that it must have a fence at Stoke Lodge because ‘Ofsted requires a fence for safeguarding’ (click here) – and how Ofsted has made very clear that this isn’t true.

This week, we want to lay out the facts so that parents of Cotham School pupils can see for themselves that Village Green status for Stoke Lodge does not mean that Cotham will be deprived of its playing fields, despite the spin they may have been given on this in the past.

The school says it has a risk assessment that shows a fence is required, so let’s look more closely at that – and first of all, let’s pause to consider that Cotham School never carried out any risk assessment at Stoke Lodge (or at Coombe Dingle Sports Complex where it held most of its PE lessons) until 2014 despite having used the field since September 2000. But in early 2014, the school asked external consultants to carry out a feasibility study about building more classrooms at the school and about options for ‘upgrading’ Stoke Lodge. You can see that feasibility study here.

The report says several interesting things, including:

‘In terms of the Stoke Lodge Playing Field proposals… the study will need to result in a scheme to submit to get planning approval, noting that an application for “Village Green” status is currently under consideration by Bristol City Council and the expectation is that this status will be awarded.’

The options in Appendix G of the report set out two ways in which the field might be shared half and half with the community – perhaps envisaged as a negotiating stance. Most significantly, in terms of where the school might get grant funding from, the report notes that grants from the Academies Capital Maintenance Fund would be judged by various criteria and that, in terms of outputs to be achieved, ‘Areas of investment are likely to be prioritised towards Safeguarding projects and Improvements to play and sport spaces.’

This report was received by Cotham’s governors on 24 March 2014. Sandra Fryer had also asked the facilities manager at the time, Nathan Allen, and another staff member to go and carry out a risk assessment, which they did that same day – you can see this here. In the knowledge that 50% of the ‘score’ for a funding grant depended on showing that there was a safeguarding need or an improvement to sport spaces, the risk assessment purported to discover… a safeguarding need at a sports space. What a coincidence!

The risks identified were: (a) dog mess on the playing area ‘due in part to a lack of sufficient dog waste bins’; (b) dog attack, stating that ‘interaction between dogs and students playing sport happens on a regular basis’ and (c) ‘Violence & Aggression from trespassers gaining access to the playing fields’. Of these, the risk of dog attack was rated ‘high’ meaning that use of the playing fields should cease until the risk was mitigated – although in fact governing body minutes show that the school had ceased using the fields four months previously, preferring to use the facilities at Coombe Dingle.

On being asked about the incidence of dog attacks at Stoke Lodge, the school has confirmed that there have not been any – nor any incidents of violence and aggression from trespassers. But the risk assessment bolstered the school’s position for funding applications as well as giving it leverage in pushing for a fence.

What did other experts make of the risk assessment? One professional has commented that it was foolish to fence off such a large area – there is no point from which the whole area can be monitored, and indeed locals have frequently observed teenagers playing football on the pitches at the bottom end, while teachers are blissfully unaware of this at the top end of the field. Even on sports days, the school never uses the whole site at any one time.

The Council’s health and safety expert also reviewed the risk assessment, and said the following (click here):
- Other schools address the risk of dog mess by a visual sweep of the playing fields prior to use.
- As for dog attacks – ‘do we have any evidence of attack’? ‘Interaction does not mean attack. My general understanding of dogs and balls is their desire to join in the play/activity as opposed to attacking staff/students. Plus I would suggest that there are already ‘Existing Controls’ being the staff on duty, supervising the students. They can politely request that dog owners remove their dogs… The majority of law-abiding citizens of Bristol would respond to such a sensible request.’
- ‘I have no knowledge of any acts of Violence and very few ‘exchanged words or aggression’ towards staff on any playing fields across Bristol’.
So there you have it – this overcooked risk assessment was produced ‘to order’ as a way of bolstering the school’s case for grant funding. It overstated the risks, and it completely left out the obvious fact that pupils are not left out there unsupervised.

The risk assessment was then used as an all-purpose tool to push through the school’s desire for a fence. In fact Cotham’s headteacher, Jo Butler, used the risk assessment as part of her witness statement to the 2016 TVG public inquiry, stressing her certainty that Ofsted required Stoke Lodge to be fenced and (most shockingly of all) even referencing the shooting of 16 children and their teacher at Dunblane Primary School in 1996 in support of her claim.

But Ofsted says they’ve got it wrong. Cotham was proceeding on a false assumption, and that means it has spent huge amounts of time, effort and money in pursuit of a fence it wants, but doesn’t need.
Didn’t Cotham say that community use just means club hire?

May 19th, 2023

Yes, it did say that. But this isn’t a school that’s notorious for its honest and accurate communication of the facts in relation to Stoke Lodge (see also “Those aren’t covert CCTV cameras, they are overt but discreetly located” – we’ll come on to the whole spy camera issue at a later date).

Here’s the clause in the lease:

In a video published in January 2019, Sandra Fryer (the Chair of Governors, who has been on the school’s governing body for over 20 years and was involved with the academy conversion process), said the following:

“The playing fields are now leased to Cotham School on a 125 year lease. To be clear, the reference to community use in our lease does not confer the right to use our playing fields but rather that the school can manage and enable community use when not required by the school.”*

But it’s very easy to see that this statement is simply untrue. Both the main school lease and the separate Stoke Lodge lease include provisions that allow Cotham to enable community use through sessional lettings, that’s true – hiring out the sports hall or a pitch at Stoke Lodge is absolutely something the school can do. Both leases have a very similar provision on this, but it isn’t clause 2.1 – it’s in clause 3.12 on ‘Dealings’. And when Cotham does hire out its sports hall or a football pitch, the hirer’s use will be subject to the terms imposed by the school (such as how much to pay and when to leave).

But the lease for the school’s main site has no equivalent of the community use wording that the Council specifically inserted into clause 2.1 of the Stoke Lodge lease. There is no suggestion in Cotham’s main lease that the school’s use of its buildings on Cotham Lawn Road is subject to ‘all existing use by the community’. And yet the Stoke Lodge lease says exactly that – the property is demised [leased] to the Tenant [Cotham] subject to certain rights that are reserved to the Landlord [BCC] and ‘subject also to all existing rights and use of the Property including use by the community’. This means something very different from hiring out a football pitch.

Even taking that simply as a point of grammar, is community use subject to the school’s terms and conditions in the way that a hirer’s use of the school hall would be? Clearly not! It’s the other way around: the school’s use of Stoke Lodge is subject to ongoing community use of the same character as the use that existed in 2011 when the lease was granted. That’s what the lease says, and that aligns completely with the 2010 Cabinet Briefing Note and BCC’s subsequent decision that shared use should continue (see our earlier posts here and here). Trying to say that the community’s use is subject to the school’s permission makes no sense at all when you look at the lease.

This means that even without the TVG in place, Cotham School’s use of Stoke Lodge under the lease will always be subject to community use, every day of every year until September 2136. Does that give the people of Bristol an independently enforceable right under the lease? No, because the lease is between the Council and Cotham School – we are reliant on our Council making sure that its tenant keeps its side of the bargain (remember that Cotham is getting a more financially favourable deal under the terms of its lease compared to leases for other schools, in return for ongoing community use). Can we trust the Council to do keep the school in line? Apparently not – here is the rather curt response received when the matter was raised in 2019:

Throughout this saga, the Council has had multiple opportunities to do the right thing and defend shared use, and has actively sought to avoid (or even eliminate) those opportunities and to deny any responsibility for the situation. Just like at Packer’s Field (see our earlier post here), warm words of assurance, or even the terms the Council itself negotiates in a legal document, won’t help to protect public use of our open spaces if the Council decides it’s not interested, or if it has a different agenda.

*You can find the full length video of Sandra Fryer’s statement here. Original video created and published by Justice4Cotham for Cotham School. Extract produced for the purposes of criticism, review and quotation only.
The 2010 Cabinet Briefing Note – what came next? It could be you…

May 18th, 2023

So what did the Council do after receiving the 2010 Cabinet Briefing note – the one that referred to ‘as of right’ use and to Stoke Lodge? The one that told the BCC Cabinet that Stoke Lodge Playing Field ‘is currently unfenced and allows unfettered community access’?

What happened next? Well, the Council didn’t put up any signs (nor did Cotham School until July 2018). It didn’t make a Direction (which was the only legal means for it to control use).

Instead, the Council held a consultation on the development proposals for Stoke Lodge Playing Fields in summer 2010 and these were roundly rejected. On 13 September 2010, the Cabinet Member for Education, Clare Campion-Smith, formally wrote to officers in the education team stating:

‘As you know, the cabinet requested last year that officers should explore the shared use of school playing fields and avoid fencing them off to the public unless there were very strong reasons for doing so… The consultation has taken place and all who responded were in favour of shared use. The cabinet has agreed that no fencing should be erected’.

On 15 September Clare Campion-Smith attended a meeting of the local Neighbourhood Partnership (which was the local area group with delegated authority through which the consultation had taken place) and confirmed her agreement to a resolution stating that ‘the Executive Member had given an assurance that the proposal to fence Stoke Lodge had categorically been dropped and that the parkland would remain with open access for all as of right.’

See those last three words? They aren’t there by accident, and because of the earlier Cabinet briefing and specific legal advice to the Council, their significance was clear.

Bristol City Council followed up in 2011 with an assurance in its public response to ‘Bristol’s Budget Conversation’. In answer to a comment referring to the Stoke Lodge proposals and saying that ‘I feel further fencing off of school playing fields is a waste of money’, the Council said:

‘We are happy to reassure people, once again, that we will not be fencing off the Stoke Lodge playing fields and quash this rumour once and for all’.

That ‘once and for all’ lasted until 2018 and a private meeting between Jo Butler (the Headteacher of Cotham School), Sandra Fryer (the Chair of Governors) and Mike Jackson, BCC’s freshly-in-post Head of Paid Service. This is the meeting at which the school complained about the very clear statement made by BCC officers in mid-July 2018 that the playing fields are the curtilage of a listed building (Stoke Lodge house) which meant that the school could not put up a fence without proper planning permission. On behalf of Cotham School, having to make a planning application was described as ‘pivotal and devastating’ – an odd statement given that the Chair of Governors is also a trustee of the Town and Country Planning Association, whose website states: ‘Planning matters to people. The way decisions are made influences people’s trust in local democracy and whether they feel at home in their communities.’ Quite.

The net result of that special pleading was a U-turn by the Council, which told Cotham on 21 September (a week after the TVG application was made) that it no longer considered the playing fields to be the curtilage of a listed building (quite a turn-around in just 2 months). The Council then, after giving Cotham that decision, got some hasty external legal advice ‘in order to confirm that we have a robust position in the event of the inevitable legal challenge brought by local residents’ – the words of Gary Collins, BCC’s Head of Development Management, in an email to Mike Jackson, Anna Keen and Asher Craig dated 24 September 2018.

Even at this point, Gary Collins’ position was that the type and height of fencing used would have to be acceptable to the Council in order for the school to obtain landlord’s consent. It was only later that the Council was persuaded to retreat further and hide behind the idea that ‘the fence is not a structure’ (that’s right, the 1.6km long, 2m high fence that is concreted into the ground and has security cameras, retractable bollards and auto-locking gates is not a structure according to the Council). Why did officers make that move? Because the fence had to not be a structure in order for the Mayor to be able to say, as he did at Full Council in January 2019, that he had ‘no power over this‘ – as landlord and local planning authority BCC took no responsibility at all for the situation created by their U-turn on curtilage. Notice, by the way, the Mayor’s repeated statement in that last video clip that “It’s gone through the Monitoring Officer” – we’ll come back to that in a later post.

As we’ve said before, this is how it’s done. Incrementally. Behind the scenes. Despite all assurances previously given to the public.

And it could be your local green space next.
13 ways the Council and Cotham School showed they didn’t object to informal use

May 16th, 2023
Before the signs went up in the mid-1980s, we know that Avon County Council had a policy of ‘tacitly accepting’ informal recreational use of its playing fields. Did the signs mean that the policy had changed? No, our evidence shows that wasn’t the case – both here and on playing fields elsewhere in the County, the Council continued to tacitly accept informal use.

Even if you think the signs communicated a clear message prohibiting use (which apparently is not how anyone ever understood them – and click here for our post on ambiguity), and even if you think two signs is enough on a 26 acre field with many formal and informal entrance points (click here for our post on sufficiency), you have to consider the impact of years and years of actions by the Council and Cotham School that were inconsistent with those signs. Those actions meant that the signs weren’t sending any clear message at all, which would mean that the signs weren’t effective to stop informal use being ‘as of right’. Here are some examples:
- In 1987 the gate at the West Dene entrance was locked by a new groundskeeper. In response to public complaints the Council ordered it to be unlocked to allow continued access at that point.
- In early January 1990 the Council went on record with a public statement, reported in the local press, that there were concerns about motorcycles accessing the field at the Cheyne Road entrance, so it was planning to install a kissing gate. That would have given unrestricted access to the entire field, from the main entrance at the lower end of the field (i.e. there was no concern about pedestrian access – although the gate was never actually installed). Click here to see the press cutting.
- On 23 January 1990 Avon made a formal Direction that, subject to providing for ongoing adult education use, all other matters relating to the control of school premises were for the school governing body, not the council – so Avon clearly had no policy of objecting to informal use from this date (more than 8 years before the 20 year period for these applications began).
- In the early 1990s a large branch fell off the veteran oak tree at the Cheyne Road entrance. The TVG1 public inquiry heard evidence that a groundskeeper had used a vehicle to push it so that it blocked the entrance – and was told by his boss to move it back into the field so that the public could still access the land (although it was left in a position that would make access for motorcycles difficult). It’s still there today.
- The Council’s evidence in TVG1 included this statement: ‘Staff were certainly aware that the land was used by the public for informal recreation. Reasonable use was never challenged’. That’s the Council’s own evidence.
- In the period from 1 September 2000 to 1 September 2011, Cotham School as the user of the land did nothing to make any protest clear. It repeatedly acknowledged over a period of years in formal legal contracts with the University of Bristol in relation to the management of the playing fields that ‘the site is open, at present, to the public and dogs’.
- In April 2010, the Cabinet Briefing Note recorded that there was ‘unfettered public access’ to the playing fields (we’ll talk about this in more detail soon).
- In September 2010, the Cabinet Member for Children and Young Peoples’ Services formally confirmed at a Neighbourhood Partnership meeting that the playing fields would remain unfenced with open access for all ‘as of right’ (again, more on this soon).
- Throughout the whole period, there was day to day contact between groundskeepers, school staff, club hirers and members of the public – many witnesses in the TVG1 public inquiry gave evidence of this, as did many of the 166 witnesses who gave statements for the current applications. In other words what was ‘visible’ on the ground included ongoing daily informal use that was unchallenged by groundskeepers or school staff (in fact witnesses gave evidence of frequent friendly conversations and interactions).
- In 2011, when the lease was being negotiated, Cotham School asked for an indemnity from the Council in relation to trees and boundary walls. Its solicitor stated that ‘excluding the playing field use, this land seems to me to be essentially open amenity land within a residential area’. The Council didn’t contradict him, and it agreed ‘a much reduced repair clause… which varies substantially from the Academy model’ in recognition of that open amenity use, as well as providing the indemnity. So the school got (and still gets) financial benefits in recognition of the shared use of the playing fields.
- The lease was signed on 31 August 2011, recording formally that the school’s rights as tenant are ‘subject to all existing rights and use of the Property, including use by the community’.
- On 5 October 2011, the TVG1 applicant wrote to Cotham’s head teacher and chair of governors, commenting on the lease between Bristol City Council as landlord, Cotham School as tenant and the community as ongoing users ‘as of right’. The letter refers to maintaining ‘clear dialogue regarding the ongoing use of the Parkland by both your Academy and the Community, in the harmonious way currently enjoyed by both interested parties’. The headteacher’s response says: ‘Thank you for your letter concerning Stoke Lodge and your express wish to maintain our close and harmonious relationship. We completely echo your sentiments…’. He didn’t quibble with the statement that there was ‘as of right’ use in a ‘harmonious way’ – it was accepted by both parties.
- In the 2016 public inquiry, Cotham School’s Chair of Governors gave evidence that the School had been content with ongoing informal use of the Land in the period since 2000 and this was why the school had not put up any signs. That’s the school’s own evidence.
None of this evidence was contested by Cotham School or by the Council. How could they? It’s all documented. Well over 20 years of continuous informal use by the public for lawful sports and pastimes, without force, without secrecy and without permission. That’s ‘as of right’.
The smoking gun: seeking a landowner statement

May 15th, 2023

You may have picked up that there have been a number of issues about Freedom of Information requests relating to Stoke Lodge – most recently, requests relating to discussions about a ‘landowner statement’. What does that have to do with the TVG applications?

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 landowner makes an application to deposit a statement and a map of the land, and there is a process requiring public notices to be displayed to let people know about the statement and object if appropriate. The sole purpose of a landowner statement is to ‘bring to an end any period of recreational use ‘as of right’ over land’.

If the statement is deposited before there has been 20 years’ recreational use of the land ‘as of right’, it prevents users obtaining the 20 years they need to apply for TVG registration. But if recreational use has already taken place over the land for 20 years or more, then the deposit of a statement triggers a one year grace period in which an application may be made – and the public notice process is likely to make people aware of the need to take action.

No landowner statement has been made in relation to Stoke Lodge Playing Fields – that’s not the issue. But we know that Cotham School was asking Bristol City Council to make one before these TVG applications went in. Now, if you think that ‘as of right’ use doesn’t exist, or has already been ended more than a year ago, then you don’t need one of these (and equally there’s no particular risk in making one – it’s just not relevant). We know from the notes of a meeting between Council officers and the School dated 21 September 2018 (after the TVG2 application had been lodged) that there had been discussions between the school and the Council about making a statement. The notes (apparently made by/on behalf of Gary Collins, Head of Development Management) record ‘Landowner statement – where is this? Is this still relevant’.

So Cotham School thought a landowner statement was necessary – and one reason why the Council might have been cautious about making one would have been the prospect that it would trigger another TVG application because 20 years’ of ‘as of right’ use was already in the bag. And that means that neither Cotham School nor the Council thought that the Avon signs had been effective to prohibit informal use (at least during this application period, from 1998 onwards). So it’s very relevant for these applications to find out what was happening in those discussions.

Here comes the really shady bit. The Council initially refused to disclose anything relating to those discussions and claimed that any FOI request relating to Stoke Lodge Playing Fields was automatically vexatious and could be refused. Just to be sure, they refused other requests that were nothing to do with Stoke Lodge as well (something that Private Eye picked up on last summer).

On 22 August 2022 the Information Commissioner ruled that the Council’s ‘blanket approach’ to requests relating to Stoke Lodge is not a proper use of the relevant Freedom of Information Act exemption. However, it turned out that even after that decision, the Council refused a separate third party request about landowner statements on the same basis, despite the ICO’s ruling. So then we asked a question at Full Council about officers not complying with the ICO’s decision, and you can see what happened here.

The Mayor implied in his response that the Council would comply with the ICO’s decision in relation to fresh requests, so we made another request for the same information. You can see how that’s going here.

Essentially, the Council is saying that it no longer thinks that asking for this information is vexatious, but that there are multiple other reasons for refusing it – they just hadn’t thought of them before. The Council is refusing to disclose information that is clearly relevant to the TVG applications. Why would it do that?

The underlying point is this: there would be no need to consider making such a statement, and Cotham School and the Council would not have been discussing it, if they considered that ‘as of right’ use didn’t exist. So even if BCC carries on refusing to disclose anything about this, the fact that those discussions happened gives the game away – they know we’re right about ‘as of right’ use, they just don’t want to admit it.
Statutory incompatibility – what’s that all about?

May 15th, 2023

The one big issue that Cotham School hoped would kill off these TVG applications is referred to, not very conveniently, as statutory incompatibility. This is the idea that if a local authority holds land for specific statutory purposes, and registration as a village green would be incompatible with those purposes, then the land can’t be registered even if all the parts of the legal test (like 20 years of ‘as of right’ use) are met. One statute (the Commons Act) would be incompatible with another (the Act setting the purpose for which the land is held).

There was a Supreme Court decision on this in late 2019, relating to two cases involving a school and a hospital, and the court said that the land couldn’t be registered. So of course Cotham thought it was exactly like the school in that case – except that that was a local authority-maintained primary school and the land in question was immediately adjacent to the school (in fact part of it was already being used to build new classrooms). There were other parts of the land that were further away from the school, but they were overgrown and unusable – if they were registered as a TVG it wouldn’t be possible to bring them into use for an educational purpose without changing the nature of the land, and the ability to do that is restricted by TVG registration). So the application for registration failed due to statutory incompatibility.

In the name of making the Stoke Lodge process quicker and more cost-efficient (an objective that hasn’t worked out in practice), the parties had to make separate submissions on what the Supreme Court decision meant for these applications, and then again on whether it should be considered as a preliminary issue (because Cotham thought it would be a ‘knock-out blow’). Consistently, the Inspector has said that our case is different because Cotham is an academy, not a maintained school. It holds the land (subject to the lease) for purposes set out in its articles but not directly for statutory purposes. And the Council can’t use the land for any statutory purpose until the 125 year lease expires. The Inspector specifically told Cotham School and the Council to proceed on the basis that they wouldn’t win on this issue and he repeatedly asked them for evidence about the signs – but they have both focused mainly on statutory incompatibility and provided no evidence at all to counter our evidence on the signs.

But both Cotham and the Council have a big problem with making this argument, because you have to find a specific statutory provision that is incompatible with registration. Cotham has a lease of the land to provide PE lessons, but there’s actually no statutory duty for an academy to offer PE. Even if there were, Stoke Lodge is already laid out for use as playing fields, and has been for decades. No change is needed to bring it into use for educational purposes – it’s been used that way for over half a century! And we know that Ofsted doesn’t require a fence around detached playing fields – the school can’t get away with claiming that any more.

From the Council’s perspective, there’s another problem: what they would be saying is that public access to detached playing fields is incompatible with the land being used to fulfil educational purposes. But schools across Bristol use pitches on public open spaces for PE – like Fairfield High at Muller Road Recreation Ground, for example, where the public has open access and can even walk dogs off-lead. Bristol Free School hires pitches at Doncaster Road Park, where the same rules apply. The new Temple Quarter school seems likely to end up using pitches in its local park. So where is the incompatibility?

It has always been a mystery why other schools can manage shared access perfectly happily, but Cotham School declares it to be impossible. But as we’ve pointed out before, when the PROWG committee decided to register the land in 2016, it turned out that the school was actually perfectly happy to do sports on a TVG and immediately applied for permission to rebuild the pavilion on it – so it seems this isn’t actually a genuine concern, just a tactic they hope will get them what they want – private use of this space that was meant for us all.
Timeline: how did we get here?

May 12th, 2023

1946/7 onwards

The Stoke Lodge estate was purchased by Bristol City Council in 1946/7. Stoke Lodge house was used from 1970 as an Adult Learning Centre. Parts of the grounds were retained as an arboretum, walled garden, car park etc. The remainder (approx 23 acres) has pitches on it and has been used for PE lessons by Fairfield School and from September 2000 by Cotham School, as well as for club sports and informal recreation.

2010

A briefing paper to BCC’s Cabinet set out a proposal to erect fencing around, and significantly develop, the playing field area. Following a public consultation, the Cabinet decided that Stoke Lodge would not be fenced off and that informal ‘as of right’ community use should continue.

2011

In March 2011 a local resident applied to have the playing fields registered as a Town or Village Green to protect informal use (this is TVG1). A couple of months later, negotiations started between BCC and Cotham School about the school’s lease of Stoke Lodge following its upcoming conversion to academy status. BCC inserted wording into the Department for Education model lease making Cotham’s rights as tenant ‘subject to all existing rights and use of the Property, including use by the community’. Linked to this, BCC agreed to indemnify the school for any costs/liability to do with trees and boundaries on the site and reduced the school’s maintenance obligation, reflecting the open amenity use of the land. Cotham became an academy on 1 September 2011.

2016

Following a public inquiry in June, the TVG1 inspector recommended that Stoke Lodge should not be registered as a TVG due to the existence on the site of mid-1980s Avon County Council signs about trespassing. In the first 5 years of the TVG1 application period, Avon owned the land so the inspector held that the signs were effective to prevent ‘as of right’ use in that period. In December, the PROWG committee disagreed with the Inspector’s recommendation, after discussion about the number and effectiveness of the signs. It decided to register the land as a TVG. The school challenged this decision by way of judicial review; BCC defended its decision to register the land in the High Court.

2018

In May, the High Court ruled that the PROWG decision was invalid, because the minutes of the December 2016 meeting did not properly explain why the committee disagreed with the Inspector’s decision.

Cotham School announced a plan to fence off the playing fields, saying that Ofsted required a fence for safeguarding reasons. In response to this, BCC officers informed Cotham that because the land was the curtilage of a listed building, a planning application would be required for its proposed fence.

Ofsted confirmed that it does not require detached playing fields to be fenced off on safeguarding grounds.

During summer 2018, Cotham School held meetings with planning officers (including Gary Collins, Head of Development Management) and subsequently with Mike Jackson, BCC’s former Chief Executive, and was allowed to ‘submit a case’ for reconsideration in relation to curtilage status. Much of the information provided by the school was subsequently shown to be incorrect, but on 21 September the school was told that officers had done a u-turn and the land was no longer considered to be the curtilage of a listed building, so no planning application was required for the fence.

However, following two mediation sessions hosted by Darren Jones MP in which school representatives had shown themselves wholly unwilling to compromise on their proposals (“It’s this fence or a bigger fence”), a second TVG application was lodged on 14 September 2018.

2019

Cotham School constructed a fence in the first quarter of 2019, under continuous observation and protest by residents. These protests ensured that the fenceline had to be altered in multiple areas and that post-holes had to be dug by hand rather than by digger, to protect the root zones of TPO trees all around the site. There was significant press coverage of these protests.

In July 2019 a further TVG application was submitted for technical reasons (‘TVG3’) – this has been joined with TVG2 and the two applications are being treated as one.

2020

In August, with the agreement of all parties, the Commons Registration Authority appointed an Inspector to consider both TVG applications.

2020 – 2023

The process has required many sets of written submissions from all parties.

More developments are expected soon.
Changes to education law and how TVG1 was misled

May 12th, 2023

The 20-year period for the current TVG applications runs from 1998, but we’re going to wind the clock back a bit further and, just for a minute, tell you some boring but important stuff about education law.

When Avon County Council put up its signs in the mid-80s, it was the local education authority and Stoke Lodge was being used by Fairfield Grammar School. From 1987, changes to the Education Act meant that control over the use of school premises was a matter for the school not the local authority, subject to any direction the local authority might make. Then from 1 April 1990 schools also got control of their budgets for things like maintenance and groundskeeping, again subject to any direction by a local authority.

Avon County Council did make a direction – it said that schools had to maintain facilities for adult education but subject to that, decisions about the use of premises were up to each school’s governing body. This direction, made on 23 January 1990, means that Avon had formally, using the mechanism provided to it in the Education Act, declared that it was not taking any position on the informal use of playing fields. It was up to the school using those fields to make decisions about informal use (and from 1996 schools were also required by law to have regard to the desirability of community use).

Sandra Fryer, the Chair of Governors of Cotham School, who has been a governor there since around 2001, gave evidence at the TVG1 public inquiry in 2016 that ‘use of the field was satisfactory from the School’s point of view’ in those years and that this ‘perhaps explained why signs had not been put up’. In other words, Cotham School did not object to informal use. That’s also reflected in the arrangements Cotham made with the University of Bristol to maintain the playing fields. Year by year these contracts recorded as part of the maintenance schedule that ‘the site is open, at present, to the public and dogs’.

There was extensive presence of groundskeepers, school staff and club hirers at Stoke Lodge on a daily basis, interacting with members of the public using the field. Multiple witnesses at the TVG1 public inquiry gave evidence of chatting with groundskeepers and of watching school and club matches. In 2016 the Inspector acknowledged that ‘this was not just a matter of local people going to the land only when the schools and clubs were not on it’. What the Inspector didn’t know then, because neither the Council nor Cotham School bothered to inform him, was that controlling the use of the land on a day to day basis was in the hands of the school, not the Council.

The conduct of the school provided visible messages on a daily basis that informal use was not a problem. Signs are one way of a landowner making a protest about use of the land clear, but inconsistent actions mean that the protest isn’t clear any more. Acknowledging that the site is open to the public and dogs; regularly seeing people using the land for sports or dogwalking and never asking them to leave; not putting up signs because ‘use of the field was satisfactory from the School’s point of view’ – these are all indicators of ‘as of right’ use.
TVG status: what’s the impact for Cotham School?

May 11th, 2023

If Stoke Lodge is registered as a TVG then the fence will have to come down. That’s because of some very old statutes that say it’s illegal to enclose a village green. But Cotham knew that when it put the fence up – the TVG applications were already in – so it has always been fully prepared for that. In fact, one local resident vividly recalls a conversation with Sandra Fryer, the school’s Chair of Governors, during construction of the fence in early 2019 where she said that the last TVG process took seven years so even if they have to take the fence down, at least they will have got that much use out of it. Sandra Fryer is the same person who asked for the applications to be ‘kicked into the long grass’ (we’ll come back to that another time) – we’ve had nearly 5 years of this process already.

But registration of the land makes no difference at all to the school’s lease. Cotham can carry on using Stoke Lodge for PE exactly as it does now – just without a fence, like it did in all the years from 2000 onwards. And actually that will be better from a sports perspective, because the fence drastically reduces the number of pitches that can be laid out on the field. This is one of the reasons Sport England objected to the same fence when the school made a planning application for it a few years ago. Without the fence they could have more pitches and different sports – for example, there used to be space for a proper rugby pitch at the top end of Stoke Lodge, but not with the fence there. More clubs could use the playing fields and access would be much easier – we frequently see people wandering the perimeter trying to find an unlocked gate, and often in the end just climbing over anyway.

Cotham School has previously relied on rolling out the line that ‘Ofsted requires a fence’. We checked and Ofsted doesn’t require them to have a fence around detached playing fields. It has said so in letters relating specifically to Cotham School and Stoke Lodge, and it has even amended its official guidance to Ofsted inspectors to make this clear. So Cotham knows that TVG registration and the fence coming down makes no difference to them using the land for PE.

And it’s clear that Cotham School believes it can do this too, despite its PR messaging to the contrary. In December 2016, when the Public Rights of Way and Greens Committee decided that the signs weren’t effective and that the land should be registered, do you know what Cotham did next? It applied for planning permission to rebuild the pavilion, explicitly on the basis that the land was a registered village green. That’s right – despite all the noise it has made and all the education funding it has spent fighting these applications, Cotham knows perfectly well that it can continue to do PE on land that is registered as a village green – that is, land without a fence. Here’s an extract from that planning application*:

So in 2017 Cotham School was clearly happy to go on using Stoke Lodge for its sport lessons after it was registered as a TVG. There’s no reason to think the position would be any different now, but if the school prefers not to do that, then it has options.

In 2011 Cotham negotiated a break clause in its lease because it always thought it might want to find alternative facilities closer to its main site. It appears from various minutes that Cotham has repeatedly suggested to the Council that it would walk away and leave the Council with the costs of maintaining Stoke Lodge if the land is now registered – presumably as leverage to keep the Council on side. But even if the school did walk away, we are ready to step up and manage the land as part of a community sports trust, and we have options for maintenance already planned. Under the school’s lease the Council actually retained financial responsibility for all the boundary walls and trees, in recognition of the ongoing shared use of the land (a big financial upside to the school, which is now restricting that shared use anyway). So the difference between Cotham maintaining the land and not maintaining the land is not as great as it wants the Council to think.

All in all, registration won’t impact Cotham’s use of Stoke Lodge unless the school wants it to. There’s no reason to think that registration would bring about anything other than a return to the peaceful co-existence that was the case at Stoke Lodge for over 70 years, until the fence went up.

*You can find this in the Design & Access statement for planning application 17/00864/F on Bristol Planning Online.