Blackbushe Airport Ltd v Hampshire County Council, R (On the Application of) & Ors

Land is within the curtilage of a building when it is so intimately associated with the building that it forms part and parcel of it. The inquiry concerns the relationship between the land and the particular building. It does not ask whether both form a larger functional or operational unit.

Curtilage has one ordinary meaning across statutory contexts, although context may influence its application. Its extent is a question of fact and degree. Relevant considerations may include physical layout, historical and current ownership and use, the character and relative scale of the building and land, any ancillary relationship, and the statutory consequences. Functional interdependence, common use or necessity does not itself establish curtilage.

Approximately 115 acres forming the operational area of an airport were registered as common land. The airport operator applied for deregistration under paragraph 6 of Schedule 2 to the Commons Act 2006, contending that the land had continuously been within the curtilage of its terminal building.

An inspector accepted the application because the operational land and terminal building formed an integral functional unit. On judicial review, Holgate J held that the inspector had applied the wrong test and quashed the decision: [2020] EWHC 959 (Admin); [2021] QB 89.

The airport operator appealed. The central issue was whether land falls within a building’s curtilage because the land and building together form a functional whole, or only where the land is so intimately associated with the building that it forms part and parcel of that building.

1. Appeal dismissed unanimously. Holgate J had correctly quashed the inspector’s decision. The inspector failed to answer whether the operational airfield was within the curtilage of the terminal building. He instead asked whether the airfield and terminal together formed a single operational unit.

2. Per Andrews LJ, the expression “within the curtilage of a building” in paragraph 6 of Schedule 2 to the Commons Act 2006 bears its ordinary meaning. The land must be so intimately associated with the identified building that it can reasonably be regarded as forming part and parcel of that building. Treating the land and building as an integral whole is the consequence of satisfying that test, not an alternative test based on shared function.

3. Curtilage is a single concept across statutory contexts. Its application is a question of fact and degree. Relevant considerations may include physical layout and proximity, past and present ownership and function, the character and relative scale of the building and land, whether the land is ancillary to the building, and the purpose and consequences of the governing statute. No exhaustive definition or list of factors should be attempted.

4. The use of land and a building for one overall purpose, functional interdependence, operational necessity, common occupation or inclusion within the same planning unit does not establish curtilage. Nor does the convenience or necessity of one parcel for the enjoyment of another. The inquiry must retain its focus on the land’s relationship to the particular building.

5. Paragraph 6 was intended to correct registrations involving buildings and their curtilages. It was not intended to permit the removal of extensive areas of common land while bypassing the more stringent discretionary procedure in section 16 of the Commons Act 2006. Although land need not be ancillary to a building, ancillarity may be highly relevant. Here the terminal building was ancillary to the airport, not the operational land to the terminal.

6. The 115-acre operational area could not reasonably be described as part and parcel of the relatively small terminal building. Nugee LJ agreed with Andrews LJ’s analysis and added observations on ascertaining the ordinary meaning of statutory language. King LJ agreed with both judgments.

• Court of Appeal (Civil Division): The airport operator’s appeal was dismissed unanimously: [2021] EWCA Civ 398 .
• High Court, Administrative Court (Planning Court): Holgate J allowed the claim for judicial review and quashed the inspector’s deregistration decision because the inspector had misdirected himself on ancillarity and applied the wrong curtilage test: [2020] EWHC 959 (Admin) ; [2021] QB 89 .
• Secretary of State’s inspector: The inspector had allowed the airport operator’s application to deregister the land under paragraph 6 of Schedule 2 to the Commons Act 2006.