County council wins High Court appeal over deregistration of common land

Hampshire County Council has won an appeal over an inspector’s decision to deregister as common land an area where an airport is located.

In Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs & Ors [2020] EWHC 959 (Admin) Yateley Common was registered as common land under the Commons Registration Act 1965. It was entered on the register kept by the claimant council.

The land had been requisitioned during the Second World War, and derequisitioned in 1960.

Blackbushe Airport is operated by the First Interested Party, Blackbushe Airport Limited (“BAL”). Most of the airport lies within the area of the common.

On 1 November 2016 BAL made an application to the council under paragraph 6 of schedule 2 to the Commons Act 2006 to remove from the register that part of the airport which had been included as common land.

Hampshire referred the application to the Secretary of State for Environment, Food and Rural Affairs for determination, pursuant to regulation 26 of the Commons Registration (England) Regulations 2014 (SI 2014 No. 3038).

The application land comprised some 46.5 hectares 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.

Th inspector appointed by the Secretary of State held a public inquiry on 2 to 5 April 2019.

The application was opposed by the council. The Open Spaces Society, the Second Interested Party, also appeared at the inquiry to oppose the application along with other objectors.

In his decision letter dated 12 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 council appealed.

Mr Justice Holgate said 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.

The defendant Secretary of State and BAL had advanced an overarching principle for determining whether under the 2006 Act an area of land lies within the curtilage of a building: is the land and building associated in such a way that they comprise part and parcel of the same entity, a single unit, or an integral whole?

But Mr Justice Holgate rejected this. “In my judgment the phrase ‘the curtilage of a building’ in that legislation requires the land in question to form part and parcel of the building to which it is related. The correct question is whether the land falls within the curtilage of the building and not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose.”

According to the judge’s analysis of the case law on curtilage, the correct principle was that for property to qualify as falling within the curtilage of a building, it must form part and parcel of that building.

“The question is not whether the building forms part and parcel of some unit which includes that land, or whether those two items taken together form part and parcel of an entity or an integral unit. The fact that in DL 54 the Inspector did summarise case law setting out the correct principle (see paragraph 16 above) is nothing to the point. The simple fact is that by the time he came to express his conclusions in DL 80-82 he adopted the fundamentally different and incorrect test which had been advanced by BAL,” Mr Justice Holgate said.

“That incorrect test is little different in effect from the approach used in development control to identify, not a ‘curtilage’ but a completely different concept, a ‘planning unit’, and to test whether a material change of use has occurred within that unit…. Here the planning unit would comprise the operational land and the building within which, either there is a single main purpose, namely that of an airport, to which the various activities are incidental, or else it is not possible to say that one activity is incidental to another.”

Mr Justice Holgate said the flaw in BAL's approach was that it asked whether the building in question formed part of some larger unit.

“That is impermissible when the question posed by the statute is whether land forms part of the relevant building, and thus falls within its curtilage. The ‘curtilage’ question is not correctly addressed by asking what is the curtilage of an institution or use which occupies some larger area than the building itself (Dyer and Barwick).”

Mr Justice Holgate also found that the Inspector, having decided to take the "ancillariness" criterion into account as a relevant factor, misunderstood what was meant by "ancillary" when he came to apply it.

The judge said the legal errors he had identified could not be described as non-material to the Inspector's reasoning. “Plainly they were fundamental.”

He added that it would be impossible for the court to say that if these errors had not been committed then it was highly likely that the outcome would have been the same, that is that the application for de-registration of the land outside the terminal building would still have been granted.

“Indeed, if the law had been correctly applied, it seems to me that, on the material before the court, there is at least a real likelihood that the application to de-register anything other than the terminal building and the Bushe Café would have been rejected,” he found.

Mr Justice Holgate concluded that the decision dated 12 June 2019 on the application for de-registration of part of Yateley Common should be quashed.