QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Hampshire County Council
|- and -
|Secretary of State for Environment, Food and Rural Affairs
|Blackbushe Airport Limited
||First Interested Party
|The Open Spaces Society
||Second Interested Party
|Mr Peter Tipton
||Third Interested Party
|Mr David Simpson
||Fourth Interest Party
||Fifth Interested Party
Mr Ned Westaway (instructed by Government Legal Department) for the Defendant
Mr Douglas Edwards QC and Mr George Mackenzie (instructed by Burges Salmon LLP) for the First Interested Party
Mr Philip Petchey (instructed by Richard Buxton Solicitors) for the Second Interested Party
Dr Ashley Bowes (instructed by Richard Buxton Solicitors) for the Third Interested Party
The Fourth and Fifth Interested Parties were not represented and did not appear.
Hearing dates: 11 & 12 February 2020
Crown Copyright ©
Mr Justice Holgate :
"(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of common land.
(2) This paragraph applies to land where–
(a) the land was provisionally registered as common land under section 4 of the 1965 Act;
(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;
(c) the provisional registration became final; and
(d) since the date of the provisional registration the land has at all times been, and still is, covered by a building or within the curtilage of a building.
(3) A commons registration authority may only remove land under subparagraph (1) acting on–
(a) the application of any person made before such date as regulations may specify; or
(b) a proposal made and published by the authority before such date as regulations may specify."
The main issues
"(i) The extent of the curtilage of a building is a question of fact and degree, and therefore it must be a matter for the decision-maker, subject to normal principles of public law;
(ii) The three Stephenson factors must be taken into account:
a) Physical layout;
b) The ownership, past and present;
c) The use or function of the land or buildings, past and present.
(iii) A curtilage does not have to be small, but that does not mean that the relative size between the building and its claimed curtilage is not a relevant consideration Skerritts p. 67;
(iv) Whether the building or land within the claimed curtilage is ancillary to the main building will be a relevant consideration, but it is not a legal requirement that the claimed curtilage should be ancillary Skerritts p.67C;
(v) The degree to which the building and the claimed curtilage fall within one enclosure is relevant, Sumption at para 17 and the quotation from the OED of curtilage as "A small court, yard or piece of ground attached to a dwelling house and forming one enclosure with it". In my view this will be one aspect of the physical layout, being the first of the Calderdale factors."
The Inspector sought to apply these "factors" in his decision letter. For the purposes of the application to de-register under the 2006 Act it was unnecessary for him to refer to or apply principle (vi) in the judgment of Lieven J.
(i) The Inspector failed to apply an additional test said to be derived from the decision of the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for Environment, Transport and the Regions  QB 54, namely whether the size of the land exceeds anything which could properly be described as the curtilage of the relevant building, in this case the terminal building;
(ii) The Inspector misunderstood the concept of "ancillariness" by deciding that both the land was ancillary to the terminal building and that the building was ancillary to the land at one and the same time.
"The guidance which appears to be given in the above cases is that land which may form the curtilage of a building is land which is part and parcel of the building (Trim), or forms one enclosure with the building (Dyer) which serves the purposes of the building in some necessary or reasonably useful way (Sinclair-Lockhart) or is intimately associated with the building such that the land is part and parcel of the building and an integral part of the same unit (Methuen-Campbell) and does not have to be small but relative size is a relevant consideration (Skerritts)."
But it will be apparent that that passage identifies a very different test for identifying the curtilage of a building, namely whether the land in question forms part and parcel of that building and, as we shall see, that test was also laid down in Dyer and Sinclair-Lockhart.
The statutory framework;
The decision letter;
HCC's grounds of challenge.
The statutory framework
"land covered by buildings or the curtilage of such land."
The OSS's narrower approach to the concept of the "curtilage" of a building would potentially broaden the extent to which the right of access under the 2000 Act could adversely affect the position of landowners.
The decision letter
"In the Applicant's view, land lies within the curtilage of a building where the relationship is such that they can be said to be 'part and parcel' of the same entity or an 'integral whole' or where they are so inter-related to form a single unit. 'Smallness' was not a requirement for curtilage and a primary/ancillary relationship between the building and land was not a legal requirement. Consideration should be given to various factors including the functional relationship of the land to the building, physical layout and ownership."
"75. The size of the curtilage in relation to the building of which it forms part is a relevant matter, but so too is the purpose to which the building and land are put. In this case the operational area of the airport may appear excessive given the relatively small size of the Terminal Building, but in the context of the purposes to which the building and land are put I do not consider that to be the case. The building and land form part of a general aviation airport. A functioning airport (even a relatively small one such as Blackbushe) will by its nature require a significant quantity of land for the provision of runways, taxiways, hangarage or storage, fire and rescue services, fuel storage and dispensing facilities, customs and quarantine facilities and so forth.
76. The evidence before me is that the operation of the airport and the use of the facilities on its land is and has been controlled and directed from the Terminal Building which is, as the OSS point out, a relatively small building on the south-eastern side of the Application Land. Although the claimed curtilage may appear wholly disproportionate to the physical size of the Terminal Building, when consideration is given to the land and the building in the context of an operational airport, the relative size of the application land to the Terminal Building is proportionate to the function and purpose to which the building and land are put."
"80. The Council submitted that the land and the building may each serve the other's purpose in some necessary or reasonably useful way, although such functional equivalence would not give rise to the application land being the curtilage of the Terminal Building. The applicant's response was that there was no difference between 'functional equivalence' and the land being said to be 'part and parcel' of the same unit; if there was 'functional equivalence' between the operational land and the Terminal Building, it demonstrated that the land and the building formed an integral part of the same unit.
81. In addition to co-ordinating the safe arrival and departure of aircraft it is evident that the Terminal Building provides administrative and technical support to the various activities at the airport. Those functions performed within the Terminal Building (the co-ordination of on-site fire and safety provision, the medical assessment of airport staff, customs and quarantine services for international flights for example) which are not directly related to the safe take-off and landing of aircraft are nonetheless part and parcel of the safe and efficient operation of the airport.
82. Although the Council described this state of affairs as a 'functional equivalence' and that as such the land could not be curtilage and the objectors described the land and buildings as having a 'symbiotic relationship', such relationships indicate that whilst there may be an ancillary relationship of the building to the land, there is also an ancillary relationship of the land to the building. As set out in Challenge Fencing, it is not a legal requirement for there to be an ancillary relationship although such a relationship exists in this case. I consider that the operational land of the airport and the Terminal Building are part and parcel of the same unit and that they are integral parts of the same unit."
"Taking all of the above into account, I find that the operational area of the airport was and is associated with the Terminal Building to such an extent that the operational area was and is part and parcel with the building and an integral part of the same unit; that it forms one enclosure with the building and serves the purposes of the building in some necessary or reasonably useful way. I consider that the operational area of the airport formed and forms the curtilage of the Terminal Building. It follows that I conclude that the Application Land, which has at all material times been part of the operational area of the airport, can be properly described as being within the curtilage of the Terminal Building."
"The assessment of curtilage is a matter of fact and degree and the relative size of the land claimed as curtilage has to been seen in the context of the use to which the building and land is put. An operational general aviation airport will occupy a significant area of land and that land is likely to dwarf the size of the Terminal Building associated with it; such is the nature of airports. At the time of provisional registration in 1967, the operational area of the airport was much greater than that which is operational today. For the reasons set out above, I consider that the Application Land was within the operational area of the airport in 1967 which at that time was the curtilage of the Terminal Building such that paragraph 6(2)(b) is satisfied."
Ordinary English meaning
"A small court, yard, garth, or piece of ground attached to a dwelling-house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling-house and its out-buildings. Now mostly a legal or formal term, but in popular use in the south-west, where it is pronounced, and often written, courtledge."
Landlord and tenant cases
Methuen-Campbell v Walters
"What then is meant by the curtilage of a property? In my judgment it is not sufficient to constitute two pieces of land parts of one and the same curtilage that they should have been conveyed or demised together, for a single conveyance or lease can comprise more than one parcel of land, neither of which need be in any sense an appurtenance of the other or within the curtilage of the other. Nor is it sufficient that they have been occupied together. Nor is the test whether the enjoyment of one is advantageous or convenient or necessary for the full enjoyment of the other. A piece of land may fall clearly within the curtilage of a parcel conveyed without its contributing in any significant way to the convenience or value of the rest of the parcel. On the other hand, it may be very advantageous or convenient to the owner of one parcel of land also to own an adjoining parcel, although it may be clear from the facts that the two parcels are entirely distinct pieces of property. In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole. The conveyance of that messuage or parcel by general description without reference to metes or bounds, or to the several component parts of it, will pass all those component parts sub silentio. Thus a conveyance of The Gables without more, will pass everything within the curtilage to which that description applies, because every component part falls within the description. The converse proposition, that because an item of property will pass sub silentio under such a conveyance of The Gables, it is therefore within the curtilage of The Gables, cannot in my opinion be maintained, for that confuses cause with effect."
Dyer v Dorset County Council
Barwick and Barwick v Kent County Council
Listed building control
"In this Act "listed building" means a building which for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act –
(a) any object or structure fixed to the building;
(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st July 1948,
shall, subject to subsection (5A)(a), be treated as part of the building."
That extended definition applies in the context of the controls applied by the Listed Building Act 1990 to, for example, the demolition, alteration or extension of listed buildings (ss.7-9).
Debenhams plc v Westminster City Council
The Calderdale case
"I would approach section 54(9) [of the Town and Country Planning Act 1971, now s.1(5) of the Listed Building Act 1990], its construction and application, and both its limbs with the obvious reflection that the preservation of a building of architectural or historic interest cannot be considered or decided, either by the Secretary of State or by those specialists he is required by section 54(3) to consult, in isolation. The building has to be considered in its setting, as is made clear by the amendment to section 56(3), and by paragraph 25 of circular no. 23/77, as well as with any features of special architectural or historic interest which it possesses. The setting of a building may consist of much more than man-made objects or structures, but there may be objects or structures which would not naturally or certainly be regarded as part of a building or features of it, but which nevertheless are so closely related to it that they enhance it aesthetically and their removal would adversely affect it. Such objects or structures may or may not be intrinsically of architectural or historic interest, or worth preserving but for their effect on a building which is of such interest. But if the building itself is to be preserved unless the Secretary of State consents to its demolition, so also should those objects and structures be. That object is achieved by section 54(9) requiring them to be treated as part of the listed building. They do not thereby become absolutely immune from demolition, but the power is there to give or withhold consent to the demolition of all or some of them. If that is the right approach, it indicates a broad approach to the subsection as a whole and a construction of it which will enable the Secretary of State to exercise his discretion to grant or withhold listed building consent over a wide rather than a narrow field."
" In my judgment, the word curtilage has to be construed having regard to the fact that the 1971 Act as a whole deals with town and country planning and that the part of the Act we are concerned with deals with buildings of architectural or historical interest. I have to ask myself, from a planning rather than a strict conveyancing viewpoint, whether the buildings within the alleged curtilage form a single residential or industrial unit and, in this instance, whether the mill and the terrace form part of an integral whole. I reject the strict conveyancing viewpoint because, if it were adopted, evasion of the Act would be easy to achieve." (emphasis added)
"There was, I think, at the end of the argument before us agreement that three factors have to be taken into account in deciding whether a structure (or object) is within the curtilage of a listed building within the meaning of section 54(9), whatever may be the strict conveyancing interpretation of the ancient and somewhat obscure word "curtilage." They are (1) the physical "layout" of the listed building and the structure, (2) their ownership, past and present, (3) their use or function, past and present. Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage."
"Buckley L.J. does not refer to Skinner J.'s "single unit," but he does refer to his "integral whole." And he is of course dealing with a house and premises in common ownership."
The Court of Appeal apparently endorsed the approach taken by Skinner J cited in paragraph 109 above.
"I have found this question difficult to answer, but I have ultimately come to the conclusion, not without doubt, that the terrace has not been taken out of the curtilage by the changes which have taken place, and remains so closely related physically or geographically to the mill as to constitute with it a single unit and to be comprised within its curtilage in the sense that those words are used in this subsection."
Plainly, the two other members of the court arrived at the same conclusion but also shared the same doubts.
HCC's Grounds of Challenge
Discussion of ground 2
Discussion of ground 1