Court of Appeal refuses permission to appeal village green deletion

In an order handed down on Wednesday (15 October), Lord Justice Lewison found that the appeal had no real prospect of success, despite finding that the appeal's first ground "would have justified the grant of permission" if it stood alone.

HHJ Paul Matthews, sitting as a judge of the High Court, ordered Bristol City Council to delete the land from the register in June 2025 following a challenge from Cotham School.

The school argued that it was entitled to stop the public from using the 22-acre site at Stoke Lodge Playing Fields for informal recreation since it leased this land from the council for educational purposes.

Matthews HHJ found that village green registration was incompatible with educational use, and so the doctrine of statutory incompatibility meant the land could not be registered.

The High Court challenge was brought by the school against the council and local campaigner Katherine Welham who represented the group We Love Stoke Lodge. Welham later appealed the decision alone.

She advanced seven grounds of appeal and had to succeed on all of grounds one to four in order for the appeal to succeed, according to the order.

Lewison LJ wrote: "The principle of 'statutory incompatibility' which emerged for the first time in this context in NPP is in the course of development. Ground 1 raises an important point of principle with a real prospect of success.

"Grounds 2 to 4, however, challenges the judge's conclusion on the facts. As the judge pointed out in his judgment on consequentials, there is a very high hurdle to a challenge to a trial judge's factual conclusions.

"I do not read the judge's conclusion as depending on the presence of 6 signs as opposed to 3; so even if the procedural challenge is made out, I cannot see that that would undermine his overall conclusion on this ground."

He also said: "In evaluating whether a landowner had done enough to make it clear that public access was contested, the judge was entitled to aggregate both the signs and the other forms of protest to which he referred. I do not consider that these grounds of appeal have real prospects of success."

Lewison LJ meanwhile said that he could not see that the judge made any error in principle in relation to the fifth ground of appeal advanced.

"The upshot is, therefore, that while I consider that Ground 1 (if it stood alone) would have justified the grant of permission to appeal, grounds 2 to 5 have no real prospects of success; and consequently the overall appeal against the judge's substantive decision does not have real prospects of success," he said.

He also concluded that ground six and seven had no real prospect of success.

Welham was previously ordered to pay an £85,000 costs order after the High Court decision, after Matthews HHJ concluded that she should cover  90% of the challenge's costs and Bristol City Council only 10%.

Dr Ashley Bowes of Landmark Chambers represented the school in the challenge and was instructed by Susan Ring of Goodenough Ring.

In a post on LinkedIn, Bowes said: "Interestingly, Lewison LJ found the application of the statutory incompatibility doctrine to leasehold land arguable but, as the remaining grounds were unarguable, permission was refused.

"This brings to an end a 14-year saga about whether school playing fields at Stoke Lodge, Shirehampton, Bristol are a village green (and thereby open to access by local inhabitants 24/7)."

Susan Ring of Goodenough Ring Solicitors added: "There has also been some comment about the individual resident who defended the section 14 proceedings being ordered to pay 90% of the school's costs.

"For the record, that resident opposed our client's applications to restrict costs liability for all parties and failed to accept an offer to cap all the parties' costs at £20,000 each."

We Love Stoke Lodge meanwhile commented on X that town and village green status “was just one way of achieving our aim of the community (all ages and abilities) local sports clubs and other users enjoying Stoke Lodge alongside the school.

“That door is closed but there are others open - the public rights of way are one and a very important issue.”

Adam Carey