Common land deregistration challenge, Hampshire

Richard Buxton Solicitors were instructed by two separate interested parties to support Hampshire County Council’s successful claim against a decision to deregister 115 acres of Yateley Common, which formed part of Blackbushe Airport, on the basis that the land formed the “curtilage” of the terminal building. The claim was successful in the High Court and upheld (with somewhat different reasoning) by the Court of Appeal.

In November 2016, Blackbushe Airport Limited (BAL) made an application to Hampshire CC (HCC) to remove about 115 acres of Yateley Common from the register of common land. This was land which included the runway, taxiways, fuel storage depot and the terminal building and control tower. The application was made under paragraph 6 of schedule 2 to the Commons Act 2006 (“the 2006 Act”) on the basis that the land had formed “curtilage” of a building since its provisional registration as common land in 1967.

HCC referred the application to the Defendant, the Secretary of State for Environment, Food and Rural Affairs (SSEFRA) for determination. There was a public inquiry on 2 to 5 April 2019. In June 2019 the Inspector determined that the statutory requirements for the removal of the land from the register were satisfied and so he allowed BAL’s application. The Inspector decided that the whole of the operational land of the airport fell within “the curtilage” of the terminal building.

HCC applied for judicial review to quash the Inspector’s decision. The challenge was supported by the Open Spaces Society (the Society) and Mr Peter Tipton, a common rights holder, both of whom were represented (separately) by solicitors at the firm. The central issue was how much of the land constituted the curtilage of the buildings under the 2006 Act.

High Court Decision

The Court reviewed the various approaches to the definition of curtilage in different settings (e.g. landlord and tenant cases, listed buildings, planning). It concluded that the there were different approaches in these different contexts and that the broad approach used for listed buildings (that the land and building should comprise part and parcel of the same entity, or are so inter-related as to constitute a single unit or integral whole) was not to be adopted in this context. Instead, in determining whether the land falls within the curtilage of the building in the context of the 2006 Act, the correct question is whether the land in question forms part and parcel of the building to which it is related.
The Court found that the approach taken by the Planning Inspector was too wide. Considering whether the application land was “ancillary” to the terminal building, or whether there was “functional equivalence” between them was the incorrect approach in this context. It also concluded that reliance on the “relative size of the application land” when compared to the function and purpose to which the building and land was put was also incorrect. Instead the focus should have been on the size of the land relative to that of the building. The Judge noted his concern (adopting a submission made by the Society), that on the Inspector’s approach a golf course could be considered curtilage of the clubhouse “because the relative size of the open land used for the course and its setting is proportionate to the functions and purpose for which both the land and the building are used.” But this was the incorrect approach and did not accord with previous caselaw.

The decision was therefore quashed

Court of Appeal Decision

The Court of Appeal upheld the result in the High Court, though with different emphasis. The Court considered that the language of the statute clearly put the focus on the building which was allegedly wrongly registered as common land, “not the land, let alone some other unit of which the land and building together form an integral part.”

It said that curtilage was one of a number of “expressions which are like an elephant; its essence is difficult to put into words, but you know it when you see it.” The Court declined to give a comprehensive definition, noting that Parliament had not attempted to define the term in the statutes in which it appears. The Court did not agree with the High Court Judgment that there was a separate meaning of curtilage in different contexts. Instead, the Court considered that all of the different authorities illustrate different applications of the same test to the facts and circumstances of the specific cases. The focus must be on whether the land was “so intimately associated with the building as to lead to the conclusion that the land forms ‘part and parcel of the building'”. The Inspector had erred by never applying the correct test but instead treating the land and the terminal building as ancillary to each other, rather than asking whether the land was ancillary to the building. Again, the Court cited the golf course example raised by the Society and noted that Inspector’s approach posed a real danger as the “integral whole” approach could be used to obtain deregistration of substantial areas of common land without having to comply with the stringent requirements of the 2006 Act.

BAL lodged an application for permission to appeal with the Supreme Court, but this was refused in April 2022.

Philip Petchey was instructed as counsel for the Open Spaces Society by Matthew McFeeley.
Dr Ashley Bowes was instructed as counsel for Mr Peter Tipton by Kristina Kenworthy.