Curtilage Determination in Common Land Deregistration: Blackbushe Airport Ltd v. Hampshire County Council

Introduction

The case of Blackbushe Airport Ltd v. Hampshire County Council ([2021] EWCA Civ 398) addresses the statutory criteria for deregistration of common land under the Commons Registration Act 1965 and the Commons Act 2006. The dispute centers on the classification of approximately 115 acres of land, referred to as the "Application Land," which was registered as common land but is integral to Blackbushe Airport's operations. The primary legal question is whether the Application Land qualifies for deregistration under paragraph 6 of schedule 2 to the 2006 Act, focusing on whether the land falls within the "curtilage of a building" — specifically, the airport's terminal building.

The parties involved include Blackbushe Airport Ltd (Appellant), Hampshire County Council (First Respondent), the Secretary of State (Second Respondent), local councillors, an individual commoner, and the Open Spaces Society among others.

Summary of the Judgment

The Court of Appeal upheld the original decision by Holgate J, who quashed the Inspector's decision to deregister the Application Land. Holgate J determined that the Inspector had applied an incorrect legal test by assessing whether the land and terminal building together formed a single operational unit, rather than whether the land fell within the curtilage of the terminal building individually.

The Court emphasized that the correct interpretation of "curtilage" requires assessing whether the land is so closely associated with the building that it forms an integral part of it, not merely part of a larger operational entity like an airport. Consequently, the substantial operational area of Blackbushe Airport does not fall within the curtilage of the terminal building, and thus, the land should not be deregistered under paragraph 6 of schedule 2.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to elucidate the concept of "curtilage":

• Methuen-Campbell v Walters [1979]: Articulated the "part and parcel" test, requiring land to be so intimately associated with a building that it forms part of its curtilage.
• Attorney-General ex rel Sutcliffe v Calderdale BC (1983) and Dyer v Dorset County Council [1989]: Explored curtilage in the context of leasehold properties and rejected broader interpretations.
• Barwick & Barwick v Kent County Council (1992): Reinforced that curtilage is a fact-specific determination.
• Skerritts of Nottingham Ltd v Secretary of State (2001): Affirmed that curtilage does not inherently imply smallness.
• Challenge Fencing Ltd v Secretary of State (2019): Emphasized that curtilage determination is a question of fact and degree.
• Caledonian Railway Co. v Turcan [1898]: Provided early interpretations relevant to curtilage and ancillary structures.

These precedents collectively underscored that "curtilage" is not a term with a fixed boundary but is determined based on the specific facts and the nature of the relationship between the land and the building.

Legal Reasoning

The core of the Court's reasoning rested on correctly interpreting the statutory language of paragraph 6 of schedule 2 to the Commons Act 2006. The court upheld that:

• Determining curtilage is a factual inquiry guided by established legal tests.
• The Inspector erred by conflating the land’s relationship with the terminal building as part of an operational unit rather than assessing its individual relationship to the building.
• Parliament intended paragraph 6 to rectify registration errors, not to broadly deregister large swaths of land integrated into significant operational facilities.
• "Curtilage" requires a proximate and intimate association with the building, not merely functional interdependence within a broader operational context.

The court clarified that the curtilage of a building could not be stretched to include land that is part of a larger entity, thereby maintaining the integrity of common land protections against inadvertent deregistration.

Impact

This judgment reinforces the importance of adhering to established legal definitions and tests in the deregistration of common land. It ensures that:

• Large operational areas cannot be deregistered lightly, preserving significant common lands from being removed based on misapplied legal standards.
• The "part and parcel" test remains the authoritative standard for determining curtilage, preventing misuse of deregistration provisions.
• Future cases will likely follow this precedent, requiring meticulous adherence to the correct interpretation of statutory language and legal principles when assessing curtilage.

Additionally, this case serves as a cautionary tale for application trustees and local authorities to apply statutory criteria accurately, avoiding broad interpretations that could undermine land protection laws.

Complex Concepts Simplified

Conclusion

The Blackbushe Airport Ltd v. Hampshire County Council case serves as a pivotal reference in the interpretation of "curtilage" within the framework of common land deregistration. By reinforcing the "part and parcel" test and clarifying the necessity of an intimate association between land and building, the Court of Appeal ensured that large operational areas, such as those of an airport, remain protected from erroneous deregistration. This judgment upholds the integrity of common land protections and provides clear guidance for future applications and judicial considerations.

Ultimately, the decision underscores the judiciary's role in safeguarding statutory intentions through meticulous adherence to established legal principles, ensuring that laws like the Commons Act 2006 are applied as intended by Parliament.