The situation faced

PE teachers should be able, like any other educators, to conduct their lessons without interruption. But what happens when locals claim the right to interrupt lessons by walking, biking and letting their dogs off lead?

Imagine you are a PE teacher at offsite school playing fields with a class of 30 students playing rugby. Several people are walking their dogs off lead. The dogs proceed to run into the game and one of the dogs inevitably does what a dog does on the pitch.  On another occasion dogs have run into the changing rooms and owners have followed to retrieve them.

As this kind of disruption has happened so often recently you film the incident on your phone and send the video to the school leadership. 

The leadership organises a risk assessment of the site and on that basis decides they need to secure the perimeter of the site with fencing. The decision is also made to withdraw from using the site until such time as it can be properly secured. 

The field, although enclosed, with signage at the main entrances, has a number of breaks in fencing and hedgerows, plus another major issue in the form of a Town or Village Green application made against the land. Erecting a fence would be difficult while that application was outstanding.

The law in this case

Anyone can apply to register land as a Town or Village Green (TVG) under the Commons Act 2006 (Section 15). In the simplest possible terms, in order to be successful the applicant must prove that there has been 20 years ‘as of right’ use for lawful sports and pastimes by a sufficient number of users from within a neighbourhood.

To be ‘as of right’ use must be: ‘without permission, without secrecy and without force’. ‘Without force’ in this context does not necessarily mean physical force, but can be something as simple as passing through a break in fencing, or seeing signs warning not to trespass and ignoring them. It’s complex and many cases in courts of every level have grappled with the concept of ‘as of right’ over the years.

Cotham School’s case

The above situation is what happened to Cotham School, an 11-18 academy, in 2014, although the TVG application was made three years earlier the disturbance on site had increased recently. The playing fields are at Stoke Lodge in Stoke Bishop, Bristol, a few miles from the main school site. The TVG application was supported by a number of local residents and, as the registration authority it fell to Bristol City Council (BCC) to decide if the application should succeed or fail.

As is normal in these circumstances BCC appointed an inspector to write a report recommending whether the land should or should not be registered. After much back and forth the decision was made to hold a (non-statutory) public inquiry.

The inquiry sat over 8 days in June and July 2016, 5 years after the application was made. The inspector’s factual findings were that use by locals was for lawful sports and pastimes and was by a sufficient number of users, over the qualifying period of 20 years. However, because of warning signs on the site erected prior to the period by the now defunct Avon County Council, use was not ‘as of right’.

The report went to BCC Public Rights of Way and Greens (PROWG) committee in December 2016 to decide on the status of the school playing fields which had been used as such since 1950 by various schools. Cotham, thinking that the inspector’s finding that the fields were not a TVG would be an end to the matter, made an application for fencing the site to planning. Unfortunately, despite the report and legal officers from BCC recommending rejection of the application, the PROWG voted instead to reject the legal advice and to register the land as a TVG. The fencing plan was withdrawn.

The school applied to judicially review (JR) the decision immediately in 2017 and the case went to court in November 2017. In May 2018, the Judge in the JR ruled that BCC had acted erroneously and unlawfully and handed the decision back to BCC to think again ‘in light of the findings of the court’.  In June the PROWG committee rejected the application meaning that the school had proven that the playing field was not a TVG and as such could control access to the land as it saw fit.

In July 2018, the school replaced the old Avon County signage and intended to erect a fence before the new academic year 2018/2019. The school had also held a series of meetings with locals in which it explained that the fenced fields would be available for use by the community when it was not being used for lessons or booked by clubs. Unfortunately work was delayed by protests from a new campaign group.

This group claimed that a fence was not necessary, and that the school must allow unrestricted access due to the lease the school had signed in 2011 when it became an academy. Immediately after a final meeting in September 2018 the campaign group entered a new application for a TVG on the basis that the signage was outdated and that the fields had been used ‘as of right’ for a different twenty-year period (after Avon County Council ceased to exist). 

New law – Statutory Incompatibility

In 2016, the Supreme Court (Newhaven) found that land which was held for a statutory purpose that was incompatible with public use could not be registered as a TVG. The case involved a working port that had specific statutory duties which would be impossible if the public were there with unrestricted access.

The inspector in Cotham School’s case had considered whether the land at Stoke Lodge was incompatible but came to the conclusion that it was not because the school could operate elsewhere, but a port could not.

Statutory incompatibility on education land

In 2018 however, the supreme court (Lancashire) found that land held for the purposes of education was incompatible with public use. The case involved a maintained school in Lancashire that had access to land owned and held by the local authority which was ruled exempt from registration.

The Cotham case continued

Because of this outcome Cotham School proceeded with erecting a fence around Stoke Lodge in 2019. There was significant objection from locals and hostile press coverage. Locals continued to argue that Lancashire did not apply because the land was held by an academy but also that the academy was restricted from preventing public access because of the terms of the school’s lease.

In 2023, BCC employed the same inspector, a well-regarded expert on such matters, to report on the new application. He advised again that the use was not ‘as of right’ as signage still had effect after the transfer off undertakings between Avon CC and BCC, and that the land should not be registered. Despite this and the same advice from their own legal department and a QC in June 2023, the PROWG decided to register the TVG yet again.

More court action

Following the decision of the PROWG Cotham School applied again for a JR, however they also agreed that BCC should register the land so that Cotham could apply to the court to take action to strike the land from the register by court order. If the school won the decision would be out of the PROWG hands (unlike a JR). BCC agreed and Stoke Lodge was added to the Bristol City register as VG29 in August 2023.

The school applied to the under section 14 of The Commons Registration Act 1965 on 6 grounds:

1. That the use of the land was statutory incompatible with registration because of how the land is held: owned by BCC, for the statutory purpose of education, leased to an academy for said purpose.
2. That use of the land had not been ‘as of right’ but by right.
3. That the use of the land was not ‘as of right’ as the public inquiry in 2016 had signalled that use was contentious.
4. That the academy lease made use of the land ‘by right’ not ‘as of right’.
5. That there had not been 20 years of continuous use because of disturbance.
6. That use during the period was unlawful due to section 546 of the Education Act.

On 11 June 2025 the High Court handed down a judgement that the school had won on all counts except count 4 as it was the court’s opinion that the lease did not confer a right of use and was irrelevant to the application either way.

A court order

The court has ordered that the register is amended and that registration of Stoke Lodge as a TVG is removed. Once again Cotham School can legitimately control access to its land. The case could be appealed, so this may not be the end, however the judgement was very thorough. Due to this BCC accepted the outcome  of the court case and duly removed VG29 (as it was) from the commons register in June 2025.

Why do you need to know about this?

Academy Schools across the country have areas that are unfenced, they have sports fields that are unfenced, many have issues with members of the public entering the site without permission.

Now that this court judgement has been made, any academy that leases land from the local authority (which was duly held for education before the lease) for the purposes of education is protected from their land being registered as a TVG.

If you are not an academy or a maintained school and you want to secure your site against members of the public turning the land into a TVG, the lesson that can be gained from this is to ensure that your land is adequately signposted against trespass, erect or repair fences, challenge unwanted persons on site, log a ‘landowner statement’ with the local authority saying that it is not a town green (or get the owner of the site to lodge one) and even block people using the site for at least one day a year. However, take note that the users have one year from any new restriction to access to apply for a TVG.

A much less contentious way to avoid a TVG is to erect prominent signage that says ‘use is by permission of the landowner’ in several places.

Be aware. You could face years of court action protecting your rights over land. Cotham School has suffered 14 years of legal challenge; hopefully this article may help you to avoid similar.

We are here to help

If you need advice from Delegated Services about this subject or think you may have an issue with unauthorised access to your land please contact us.

Remember that as a customer of Delegated Services we offer a warning and banning service via your Go To Confidential Area.