Category: Intro and background

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’.
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.
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.
What do we have to prove for a TVG?

May 10th, 2023

When you’re applying to have land registered as a Town or Village Green (TVG), it doesn’t matter whether the landowner (in this case, Bristol City Council) or the tenant (here, Cotham School) is enthusiastic about the idea or not. It’s purely a legal test. If you meet the test, the land gets registered – and the reverse is also true.

The core of the test is this: has a significant number of the inhabitants of the locality indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years?

In the case of Stoke Lodge Playing Fields, the issues being debated are pretty limited – partly because a previous TVG application was made in 2011, and in that case it was held that all parts of the test were met except for one: although lawful sports and pastimes had been going on for at least 20 years, they had not been ‘as of right’ for the whole of that time.

What was the issue? To get land registered as a TVG, local people have to be using land ‘as of right’ which means ‘as if they had a right’ to do so. That means their informal use can’t be in secret (which it clearly wasn’t here – it was on a large scale and over many decades) and it can’t be with permission. It also can’t be ‘by force’ which covers both physical force (like climbing over a wall) and also using it despite the landowner making it clear that you’re not supposed to. The defining issue in the first TVG application was a small number of signs that were put up at entrances to the playing fields in the early/mid-1980s by Avon County Council.

In TVG1, the 20-year period ran from 1991 to 2011, and the Inspector who was tasked with looking at the evidence and held a public inquiry into the application, considered that the signs made use not ‘as of right’ up to April 1996 when Avon County Council was abolished. Effectively, he held that the landowner had made clear by those signs that it was objecting to informal recreational use (even though that use carried on regardless).

For our current applications, the 20 year period starts in 1998 so the relevant landowner throughout the period was Bristol City Council. BCC didn’t put up any signs (except for one in 2009 which we’ll talk about another time) but the issue is whether the Avon signs that were put up 12-15 years earlier were effective to make use not ‘as of right’ even after Avon had ceased to exist.

Signs don’t automatically prevent use being ‘as of right’ – previous court cases have established some principles around this. The test has a number of elements to it, which we’ll tackle over the next few posts.
Why should this matter to anyone else?

May 10th, 2023

Obviously, those of us who use and love Stoke Lodge Playing Fields care about this – but why should anyone else be interested?

Well, for context, shared use between schools, sports clubs and informal users existed on these playing fields for decades. When Cotham School became an academy, it got a 125-year lease to use the land for PE, and that lease was written on an ‘as is’ basis – the Council, as landowner, specifically wrote into the lease that the school’s rights were subject to ‘all existing rights and use of the Property, including use by the community’. We’ll talk more about the lease another time.

And the land also benefited from a special status, as the curtilage land of a listed building (Stoke Lodge House). That’s relevant when you’re looking at planning applications, and it means that certain permitted development rights don’t apply – like, to pick an example at random, putting up a 2m high perimeter fence. So how did the fence go up without a planning application? Cotham School persuaded the Council’s planning team to remove curtilage status from the land, and to agree that it could put up the fence without a planning application – again, we’ll cover this another time – and just like that, Cotham started saying that the community’s access was permissive (i.e. is only allowed on its terms), and that it was generously sharing use by leaving a narrow, non-maintained muddy perimeter outside the fence and unlocking the gates at times to suit the school.

And it matters because this is how it happens. This is how we lose access to green space all around Bristol. Not through fences specifically (although sometimes), but incrementally, by flawed decision-making behind the scenes combined with costs and delay that eventually force community groups to give up. Well we don’t intend to do that. We’re in this for the duration, as long as it takes. But the tactics that have been used against us are the same ones that are regularly rolled out around the UK to defeat community campaigns.

For another case study, consider Packer’s Field – Whitehall Playing Fields in Bristol, which is leased to City Academy. Local residents there made an application for village green status in 2004 (which was ultimately rejected). But the wider context is that when a planning application was made in 2008 to build an athletics facility with a running track and floodlighting on the field, the planning committee noted that it was supported by Sport England and BCC officers because it would deliver ‘sporting enhancement of the site, without compromising the local community’s existing access arrangements which are facilitated through the adopted Community Use Agreement’. Even though the agreement was said to have been adopted, a planning condition was attached stating that the facilities should not be brought into use ‘until a revised signed contract securing community use of the sports facilities has been submitted to and approved in writing by the Local Planning Authority’. And now? Recent freedom of information requests* have uncovered that BCC has ‘destroyed’ its copy of the community use agreement; and the Cabot Learning Federation which now runs City Academy says it knows nothing about it. And so one gate is open in the fence for the community to access the land, for just 2 hours in an evening, as long as there’s nothing else going on.

We won’t give up because if we do, this historic 26 acre field wrapping round a Grade II listed building which is part of Bristol’s heritage, will inevitably be developed. That doesn’t necessarily mean houses or student accommodation – it might also mean hardstanding for coaches, high internal fences around multi-use games areas, floodlighting and entry on payment only. We know that because we’ve already had a glimpse of Cotham’s future plans for Stoke Lodge. Those plans aren’t about educational benefit – there is very little educational benefit in the school wasting more than 50% of any PE lesson travelling 3 miles across north Bristol to do 45 minutes of activity, change their shoes in an expensively ‘refurbished’ pavilion and travel back again, when the school could hire facilities much closer to its main site, increase lesson times and reduce the impact on the planet. It’s about commercialisation and academy profits. And yes, schools need funding – but that’s not the deal Cotham signed up to, and it knows it. Its lease gives it the right to use the land for PE ‘subject to all existing rights and use of the Property, including use by the community’. Stoke Lodge is not the school’s exclusive private property, however often it tries to tell us that. It belongs to the citizens of Bristol and we have a right to expect that our Council will defend our access to it, as per the lease. But the Council has already shown that it won’t make Cotham stick to the terms of its lease, so here we are.

And could it be your local park next? Each new school needs sports facilities. We can’t just invent more open space for pitches, so they will have to share with other schools or with the public. But if a new school were to start off with an agreement to use pitches in, for example, Netham Park, how long would it be before the Council allowed the school to leverage that into fences, auto-locking gates and exclusive access?

The hard lesson is that warm words and assurances – even special provisions in the lease or a full-on community use agreement – won’t protect your access to open space if someone pushes the right buttons.

*To see the FOI requests, click here and here.
We need to talk about Stoke Lodge

May 10th, 2023

It’s been going on for years already, this process to get Stoke Lodge Playing Fields registered as a Town or Village Green. And now, as we inch closer to the end of the process, we’re getting lots of questions:

– what is a TVG anyway, and what evidence have we got to prove our case?
– what does registration mean for Cotham School? And for everyone else?
– what’s happened so far and what’s the timeline?
– what’s going on with Freedom of Information requests?
– what’s happening about the covert CCTV cameras?

So, from now until the fence comes down, this is where we’re going to post information and updates, and where we’ll answer your questions (as far as we can – because it’s a litigation process some things have to stay confidential).

If you have a question, email us at welovestokelodge@gmail.com and we’ll do our best to answer!

Category: Intro and background

13 ways the Council and Cotham School showed they didn’t object to informal use

Timeline: how did we get here?

TVG status: what’s the impact for Cotham School?

What do we have to prove for a TVG?

Why should this matter to anyone else?

We need to talk about Stoke Lodge