Court of Appeal delivers key judgment in the Blackbushe Airport case on the extent of the curtilage of a building
18 Mar 2021
On 18 March 2021, the Court of Appeal provided welcome clarification of the meaning of the phrase “the curtilage of a building” in the Commons Act 2006. In R (Hampshire County Council) v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 398, the Court of Appeal considered in detail the cases on this vexed term in a variety of statutory contexts. The Court upheld the decision of Holgate J ( EWHC 959 (Admin)). The Court confirmed that the Inspector had adopted an incorrect approach in deciding whether the extensive operational area of a working airport fell within the curtilage of the terminal building and could therefore be de-registered as common land under the Commons Act 2006. The decision will be essential reading in relation to common land and also in any context in which the term “curtilage” needs to be interpreted and applied.
Yateley Common in Hampshire is registered as common land on the register of common land maintained by the Claimant, Hampshire County Council (the “Council”), under the Commons Act 2006. Blackbushe Airport is a general civil airport which is operated by Blackbushe Airport Ltd (“BAL”). The major part of the operational area of the airport lies within the area of the common. BAL made an application to the Council under paragraph 6 of schedule 2 to the Commons Act 2006 to de-register the part of the airport which had been registered as common land. The application land comprised a large area (115 acres or 46.5 hectares) of operational land, including the runway, taxiways, fuel storage depot, the terminal building (including control tower), a café and car parking. The terminal building is a modest building with a footprint of about 360m2 in the south-eastern corner of the site.<
The basis of BAL’s application was that the entire operational area of the airport formed part of “the curtilage of a building” (ie. the terminal building) and that it had done at all times since the land was provisionally registered as common land back in 1967. BAL therefore contended that the whole of the operational area of the airport fell to be de-registered under paragraph 6 of schedule 2 to the 2006 Act. At a public inquiry in 2019, an Inspector appointed by the Secretary of State agreed. The Council then applied to the High Court for judicial review of this decision. The case was designated as a significant planning case and the hearing was expedited. The High Court (Holgate J) upheld the challenge ( EWHC 959 (Admin)) and quashed the Inspector’s decision. BAL appealed.
The Court of Appeal (Lady Justice King, Lady Justice Andrews and Lord Justice Nugee) considered in detail the leading authorities on the meaning of “curtilage” in various statutory contexts. The leading judgment was given by Andrews LJ, with whom Nugee LJ and King LJ agreed, with Nugee LJ adding some remarks of his own. The Court confirmed the “conspicuously thorough, considered and carefully reasoned judgment” of Holgate J (). The Court considered in particular six key authorities: Methuen-Campbell v Walters  QB 525; Attorney-General ex rel Sutcliffe v Calderdale Borough Council (1982) 46 P&CR 399; Dyer v Dorset County Council  1 QB 346; Barwick and Barwick v Kent County Council (1992) 24 HLR 341; Skerritts of Nottingham Ltd v Secretary of State for Environment, Transport and the Regions  QB 59; and Challenge Fencing Ltd v Secretary of State for Housing Communities and Local Government  EWHC 553 (Admin).
The Court of Appeal rejected BAL’s contention that the overarching principle was that land was comprised within the curtilage of a building if the land was sufficiently closely related to the building such that together the land and the building formed part and parcel of an integral whole or single unit. That approach was incorrect. Instead, the Court held (at ) that Holgate J was right to hold that the phrase “the curtilage of a building” in the 2006 Act 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, not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose, or whether the building forms part and parcel of some unit which includes that land. The land must form part and parcel of the building, not part and parcel with the building ( and ). The Court therefore confirmed that Holgate J had correctly concluded that the Inspector’s decision had been fatally flawed by material errors of law, and that Holgate J was right to have quashed the decision.
The Court confirmed that there is only one meaning of the word “curtilage”. Andrews LJ observed at  that, “The curtilage of a building is a single concept, and … does not have different meanings in different statutory contexts. There is in truth only one test, and that is the test articulated by Buckley LJ in Methuen-Campbell”. This test is that “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” (Methuen-Campbell at pp. 543F–544G). This is “as good an expression of the concept of curtilage as one is likely to find” (). In applying this definition to the facts of individual cases, it remains important to take account of the different statutory contexts in which the question may arise (per Nugee LJ at ).
Furthermore, and independently of the above points, the Court of Appeal confirmed (as Holgate J had held at first instance) that the Inspector had also erred in relation to his treatment of ancillariness. As Andrews LJ observed at , the word “ancillary” means something which is subservient to, or subordinate to, or which provides essential support to the functioning of, something else. It was common ground that, even though this is not an essential requirement, nevertheless whether the land is indeed ancillary to the building is a relevant (and may be a highly relevant) consideration. If that factor is to be taken into account, it is important that the decision-maker should understand the concept correctly (per Andrews LJ at ). The Inspector had plainly fallen into error in treating the land and the terminal building as ancillary to each other (per Andrews LJ at ). If the correct question had been asked (namely, whether the Application Land was ancillary to the terminal building) the answer was plainly no; on the contrary the terminal building was ancillary to the functioning of the Application Land (per Andrews LJ at ).
The decision provides welcome clarification at appellate level of the meaning of the word “curtilage”, not only in the Commons Act 2006 but also in any other statute where that phrase occurs. The decision also provides welcome clarification of the meaning of the term “ancillary” and how it is to be applied in any given case.