A ‘curtilage’ is like an elephant, hard to describe, but instantly recognisable

The Commons Act 2006 enables landowners to apply to deregister land registered as a common under the Commons Registration Act 1965 if, on registration, it was covered by or was within the curtilage of a building, always has been and still is: paragraph 6, schedule 2. Blackbushe Airport Ltd v Hampshire County Council [2021] EWCA Civ 398; [2021] PLSCS 56 concerned an application to de-register 115 acres of common land forming part of Blackbushe Airport. The land housed a runway, taxiways, fuel storage depot, and an airport terminal – a two-storey building, once roughly double the size of the application land, but which now had an overall floor area of 760 sq m. The land had been requisitioned for use during World War II, on condition that it was to be restored and the buildings removed on de-requisitioning. But the buildings were not demolished when they should have been. The planning inspector approved the application. But the High Court overturned his decision and the Court of Appeal has now confirmed that such an extensive area of land could not properly be described as falling within the curtilage of the relatively small terminal building. Lady Justice Andrews explained that the ambit of the curtilage of a building is a question of fact and degree. Various factors may assist, including a consideration of the statutory consequences of deciding that land falls within or without the curtilage of a building. And, in certain contexts, the court may be more generous, given the purposes of the governing statute. However, that does not mean that the concept of a curtilage differs from statute to statute: for example, simply because the court is considering a listed building. It was not helpful to consider how conveyancers would understand the term “curtilage”. The curtilages of a manor house, a large industrial mill, a factory and a dwelling house may differ – and what falls within the curtilage of a building will depend on its size and configuration. But proportionality, whilst relevant, is not definitive. A small cottage may have a large garden and a large townhouse may have a tiny terrace. Parliament had not intended that paragraph 6 of schedule 2 of the 2006 Act, which deals with “buildings registered as common land”, should be used to deregister large tracts of land, thereby bypassing section 16, which requires the provision of land in exchange if the parcel being deregistered comprises more than 200 sq m. There was, clearly, a fundamental incompatibility between land being subject to rights of common and having a building on it – and it would be reasonable and appropriate to include some surrounding land, when deregistering the terminal building. But it was not necessary to deregister the entire operational area of the airport. The planning inspector had asked whether the land and building were ancillary to each other and fell within the curtilage of a single functioning unit, ie the airport. But the question posed by the statute was whether land falls within the curtilage of a building. And the fact that land is used and enjoyed with a building does not make it part of the curtilage of that building. For one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter that it forms part and parcel of it – and the application land was not so intimately associated with the airport terminal that it formed part and parcel of the building.   Allyson Colby is a property law consultant