Commons – De-registration – Curtilage – Local authority applying for judicial review of inspector’s decision to allow part of common land to be removed from commons register – High Court granting application – Appellant landowner appealing – Whether application land meeting statutory criteria for deregistration under para 6 of schedule 2 to Commons Act 2006 – Whether inspector erring in law – Appeal dismissed
Yateley Common in Hampshire was registered as common land under the Commons Registration Act 1965 on the register kept by the first respondent local authority. Blackbushe Airport lay within areas of the common. It was operated by the appellant which applied to de-register part of the common. The application land comprised 115 acres of operational land which included the terminal building, which was a two-storey building with an overall floor area of about 760 sq m. The application was opposed by the first respondent and the interested parties.
An inspector appointed by the second respondent secretary of state concluded that the requirements were satisfied for the removal of the land from the register under para 6 of schedule 2 to the Commons Act 2006 because: the land was provisionally registered as common land under the 1965 Act; it was covered by a building or was within the curtilage of a building; and since the provisional registration became final, the land was still covered by a building or within the curtilage of a building.
The first respondent’s application for judicial review was granted. The judge found that the inspector had wrongly asked whether the land and building together comprised a unit; and wrongly decided that the whole of the operational land of the airport (including the application land) fell within “the curtilage” of the terminal building: [2020] EWHC 959 (Admin); [2020] PLSCS 80. The appellant appealed.
Held: The appeal was dismissed.
(1) The purpose of the 1965 Act was to create a definitive record, maintained by local authorities, of all commons, town or village greens, and rights of common then in existence. The 1965 Act permitted registration of land over which rights of common existed irrespective of whether there was a building on the land, and irrespective of the nature of that building, the purpose it served, or whether it was lawfully there.
The purpose of schedule 2 to the 2006 Act was to cure errors and omissions in the register, and the particular purpose of para 6 was to rectify the situation in which a building (or land within its curtilage) which should not have been registered as common land under the 1965 Act was so registered. The statutory language in para 6 required one to ask whether, since the date of its provisional registration as common land, the relevant land had at all times been, and still was, “within the curtilage of a building”. One had to ask whether the land was so intimately associated with the building as to lead to the conclusion that the land formed “part and parcel of the building”: Methuen-Campbell v Walters [1979] 2 QB 525 followed.
(2) In order to achieve the de-registration of the terminal building which was deemed by parliament to have been wrongly registered as common land, it was unnecessary to deregister the whole of the rest of the operational area of the airport. The test was not whether the terminal building could function without an operational airport, nor whether the application land was necessary for the functioning of the airport. Nor was the test whether the application land and the terminal building together formed one part of an operational unit or whether they fell within a single enclosure. The test was not simply whether the land formed part an “integral whole” with the building or formed part of a single “unit”. Whilst land which was “part and parcel” with a building might form an “integral whole”, it did not follow that where land was in the same integral whole with a building it formed part of its curtilage. Just as it would be inadvisable to try and define “curtilage”, there were obvious dangers in attempting to be too prescriptive about what factors were relevant to determining the curtilage in a given case, or in trying to create an exhaustive list. The authorities illustrated different applications of the same test to the facts and circumstances of specific cases. The curtilage in a given case was a question of fact and degree: Attorney-General ex rel Sutcliffe v Calderdale Borough Council (1983) 46 P&CR 399, Dyer v Dorset County Council [1989] 1 QB 346, Barwick & Barwick v Kent County Council (1992) 24 HLR 341, Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2000] 2 PLR 84 and Challenge Fencing Ltd v Secretary of State for Housing Communities and Local Government [2019] EWHC 553 (Admin); [2019] PLSCS 50 considered.
(3) It was common ground that, although the land did not have to be ancillary to the building in order to fall within its curtilage, it was relevant. If that factor was taken into account the decision-maker had to understand the concept correctly. The inspector fell into error in his approach by treating the land and the terminal building as ancillary to each other. The application land was plainly not ancillary to the terminal building. On the contrary, the terminal building was ancillary to the functioning of the airport. It was that mistake, and the findings made by the inspector about “functional equivalence”, which led to his adoption of the wrong test for identifying curtilage land.
(4) The phrase “the curtilage of a building” in the 2006 Act required the land in question to form part and parcel of the building to which it was related. The correct question was whether the land fell within the curtilage of the building, not whether the land together with the building fell within, or comprised, a unit devoted to the same or equivalent function or purpose, nor whether the building formed part and parcel of some unit which included that land. The judge correctly concluded that the inspector’s decision was fatally flawed by material errors of law.
Douglas Edwards QC and George Mackenzie (instructed by Burges Salmon LLP) appeared for the appellant; George Laurence QC and Simon Adamyk (instructed by Hampshire County Council) appeared for the first respondent; Philip Petchey (instructed by Richard Buxton Solicitors) appeared for the first interested party; Ashley Bowes (instructed by Richard Buxton Solicitors) appeared for the second interested party; the second respondent and the third and fourth interested parties did not appear and were not represented.
Eileen O’Grady, barrister
