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

This appeal concerned an application under paragraph 6 of Schedule 2 to the Commons Act 2006 to deregister land provisionally registered under the Commons Registration Act 1965 because it was "covered by a building or within the curtilage of a building". The central legal issue was the correct meaning of "within the curtilage of a building" for the purposes of paragraph 6, and its application to some 115 acres of operational airport land surrounding a small terminal building.

The Court held that the statutory test requires asking whether the land is so intimately associated with the building that it forms "part and parcel of the building" (the Methuen-Campbell formulation). The Inspector had applied a broader "integral whole" or "single unit" test, asking whether the land and building together formed an integral operational unit, and therefore erred in law. Applying the correct test to the facts, the operational airfield (including runways, taxiways, fuel depot and extensive hardstanding) could not reasonably be treated as within the curtilage of the relatively small terminal building, so paragraph 6 did not apply.

The Court therefore dismissed the appeal, agreeing with Holgate J that the Inspector's decision was legally flawed and quashed for failing to apply the correct curtilage test. The judgment relied on and applied established authorities including Methuen-Campbell, Dyer and Skerritts, and emphasised statutory purpose and ordinary meaning in construing "curtilage."

The appellant, Blackbushe Airport Limited, sought deregistration under paragraph 6 of Schedule 2 to the Commons Act 2006 of approximately 115 acres of land registered as common land (the Application Land). The land comprised the operational area of Blackbushe Airport, including runways, taxiways, fuel storage, car parking, a terminal building (c.360m2 footprint) and a café. The application was referred to the Secretary of State and an Inspector allowed deregistration on the ground that the land was "within the curtilage of a building" at the time of provisional registration (16 May 1967) and continuously since.

Procedural history:

• The Inspector issued a decision on 12 June 2019 allowing the application.
• Hampshire County Council obtained judicial review in the High Court (Holgate J) and Holgate J quashed the Inspector's decision ([2020] EWHC 959 (Admin)), holding that the Inspector had misdirected himself and applied the wrong test.
• Blackbushe was granted permission to appeal to the Court of Appeal (this judgment). The Secretary of State did not appeal.

Nature of the claim and relief sought: An application for deregistration of land from the common land register under paragraph 6 of Schedule 2 to the Commons Act 2006 (Buildings registered as common land).

Issues framed:

1. How to construe "within the curtilage of a building" in paragraph 6 of Schedule 2 to the Commons Act 2006.
2. Whether, applying that construction, the Application Land was within the curtilage of the terminal building at the relevant dates and continuously since provisional registration.
3. Whether the Inspector erred by adopting a broader "integral whole" or "functional equivalence" approach.

Court’s reasoning:

• The court started from ordinary and legal usage. It held that "curtilage" must be given its ordinary meaning but is a question of fact and degree; however, paragraph 6 focuses on the building and whether the land is part and parcel of that building.
• The court applied the established formulation from Methuen-Campbell that land falls within the curtilage when it is so intimately associated with the building that it forms part and parcel of it. That is the correct test; there is not a separate, wider "integral whole" test that treats any land that forms part of a broader operational unit with the building as curtilage.
• The authorities considered (including Dyer, Barwick, Skerritts and Challenge Fencing) reflect applications of that single test in different contexts; some statutory contexts may justify a slightly more generous application of the factors (for example, listed building protection), but they do not change the core test.
• The Inspector applied the wrong question by treating the airport and terminal together as an "integral unit" with "functional equivalence", thereby downplaying proximity, relative size and the ordinary notion of curtilage. That approach could permit large tracts of common land to be deregistered without complying with the stricter s.16 procedure and Parliament did not intend that.
• Applying the correct test to the facts shows the operational area could not reasonably be regarded as "part and parcel" of the small terminal building and so paragraph 6 was not made out.

Subsidiary findings and wider context: The court noted the legislative background to Schedule 2 (to correct registration errors), emphasised that paragraph 6 is intended to remedy mistaken registration of buildings or their immediate curtilage (not to enable deregistration of extensive operational land), and considered the comparative relevance of listed building and planning authorities. The court observed the curtilage question is fact‑sensitive and that authorities illustrate its ordinary meaning rather than producing a precise definition.

Appeal dismissed. The Court held that paragraph 6 of Schedule 2 to the Commons Act 2006 requires asking whether the land is so intimately associated with the building that it forms "part and parcel of the building" (the Methuen-Campbell test). The Inspector applied a broader "integral whole"/"functional equivalence" test, thereby addressing the wrong question. Applying the correct test, the operational area of the airport was not within the curtilage of the small terminal building, so deregistration under paragraph 6 was not available.

Appeal to the Court of Appeal from the Administrative Court (Holgate J) (High Court of Justice, Queen's Bench Division (Planning Court)) where Holgate J quashed the Inspector's decision: [2020] EWHC 959 (Admin). The Inspector's original decision (allowing the deregistration) was dated 12 June 2019 (decision letter).