Hampshire County Council v Secretary of State for Environment, Food & Rural Affairs – Commons – Deregistration – Curtilage – Claimant local authority applying for judicial review of inspector’s decision to allow part of common land to be remove from commons register – Whether inspector erring in approach to question of curtilage of building – Whether inspector applying correct test — Application granted
Yateley Common in Hampshire was registered as common land under the Commons Registration Act 1965 on the register kept by the claimant local authority. Blackbushe Airport lay within areas of the common. It was operated by the first interested party which applied to de-register part of the common. The application land comprised some 46.5 hectares (or 115 acres) of operational land which included the runway, taxiways, fuel storage depot and in the south-eastern part of the site, the terminal building (including control tower), the Bushe Café and car parking. The terminal building had an overall floor area of about 760 sq m. It was a two-storey building. The application was opposed by the claimant and the interested parties.
Following a public enquiry, an inspector appointed by the defendant 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 section 4 of the 1965 Act; on the date of the provisional registration the land was covered by a building or was within the curtilage of a building; the provisional registration became final; and since the date of the provisional registration the land had at all times been, and still was, covered by a building or within the curtilage of a building.
The claimant applied for judicial review of that decision. The central issue for the court was whether the inspector erred in law in deciding that the whole of the operational land of the airport (which included the application land) fell within “the curtilage of a building”, namely the terminal building, at all material times.
Held: The application was granted.
(1) The overarching principle advanced by the defendant for interpreting and applying the term “curtilage” in the 2006 Act (that the land and building should comprise part and parcel of the same entity, or were so inter-related as to constitute a single unit or integral whole) came from Attorney General ex rel. Sutcliffe v Calderdale Borough Council (1982) 46 P & CR 399, in the context of listed buildings. That approach was justified for listed building control, which was concerned to bring within its ambit structures or objects which were closely related to the building which had been listed such that their removal or alteration could adversely affect its interest. Even so, the approach in Calderdale was qualified in Debenhams plc v Westminster City Council [1987] AC 396; [1987] 1 EGLR 248 by the addition of a test which required those additional structures or objects to be ancillary to the building identified in the statutory list.
However, the use of “curtilage” in the extended definition of “listed building” was not analogous to its use in the de-registration and non-registration provisions in schedule 2 to the 2006 Act. The 2006 Act took a balanced approach to the protection of, on the one hand, rights of common and public access to commons and town or village greens and, on the other, the interests of the owners of buildings on such land. There was no justification for adopting for the 2006 Act the broad approach to defining curtilage which the court expressly employed in Calderdale in order to promote the efficacy of listed building control.
(2) The court rejected the overarching principle for which the defendant contended. 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 and not whether the land together with the building fell within, or comprised, a unit devoted to the same or equivalent function or purpose: Dyer v Dorset County Council [1989] QB 346, Barwick v Kent County Council (1992) 24 HLR 341 and Challenge Fencing Ltd v Secretary of State for Housing Communities and Local Government [2019] EWHC 553 (Admin); [2019] PLSCS 50 applied.
(3) In the present case, the fact that the inspector summarised the case law setting out the correct principle was nothing to the point. The simple fact was that, by the time he came to express his conclusions, he adopted the fundamentally different and incorrect test which had been advanced by the defendant. That incorrect test was little different in effect from the approach used in development control to identify, not a “curtilage” but the completely different concept of “planning unit”, and to test whether a material change of use had occurred within that unit. Here, the planning unit would comprise the operational land and the building within which, either there was a single main purpose, namely that of an airport, to which the various activities were incidental, or else it was not possible to say that one activity was incidental to another. The flaw in the defendant’s approach was that it asked whether the building in question formed part of some larger unit. That was impermissible when the question posed by the statute was whether land formed part of the relevant building, and thus fell within its curtilage. The “curtilage” question was not correctly addressed by asking what was the curtilage of an institution or use which occupied some larger area than the building itself: Dyer and Barwick considered.
(4) The inspector had also misunderstood the correct meaning and application of “ancillary”. The ancillary factor should have been applied in order to help decide whether the operational land was within the curtilage of the terminal building. The inspector had erred in deciding that both the land was ancillary to the terminal building and the building was ancillary to the land at one and the same time.
George Laurence QC and Simon Adamyk (instructed by Hampshire County Council) appeared for the claimant; Ned Westaway (instructed by Government Legal Department) appeared for the defendant; Douglas Edwards QC and George Mackenzie (instructed by Burges Salmon LLP) appeared for the first interested party; Philip Petchey (instructed by Richard Buxton Solicitors) appeared for the second interested party; Ashley Bowes (instructed by Richard Buxton Solicitors) appeared for the third interested party; the fourth and fifth interested parties did not appear and were not represented.
Eileen O’Grady, barrister
