Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Holgate
Judgment Date23 April 2020
Neutral Citation[2020] EWHC 959 (Admin)
Docket NumberCase No: CO/3493/2019
Date23 April 2020

[2020] EWHC 959 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HON. Mr Justice Holgate

Case No: CO/3493/2019

Between:
Hampshire County Council
Claimant
and
Secretary of State for Environment, Food and Rural Affairs
Defendant
(1) Blackbushe Airport Limited
First Interested Party
(2) The Open Spaces Society
Second Interested Party
(3) Mr Peter Tipton
Third Interested Party
(4) Mr David Simpson
Fourth Interest Party
(5) Adrian Collett
Fifth Interested Party

Mr George Laurence QC and Mr Simon Adamyk (instructed by Hampshire County Council) for the Claimant

Mr Ned Westaway (instructed by Government Legal Department) for the Defendant

Mr Douglas Edwards QC and Mr George Mackenzie (instructed by Burges Salmon LLP) for the First Interested Party

Mr Philip Petchey (instructed by Richard Buxton Solicitors) for the Second Interested Party

Dr Ashley Bowes (instructed by Richard Buxton Solicitors) for the Third Interested Party

The Fourth and Fifth Interested Parties were not represented and did not appear.

Hearing dates: 11 & 12 February 2020

Approved Judgment

Mr Justice Holgate

Introduction

1

Yateley Common was registered as common land under the Commons Registration Act 1965 (“the 1965 Act”). It was entered on the register kept by the Claimant, Hampshire County Council (“HCC”). Blackbushe Airport is operated by the First Interested Party, Blackbushe Airport Limited (“BAL”). Most of the airport lies within the area of the common.

2

On 1 November 2016 BAL made an application to HCC under paragraph 6 of schedule 2 to the Commons Act 2006 (“the 2006 Act”) to remove from the register that part of the airport which had been included as common land, referred to as an application for de-registration. HCC then referred the application to the Defendant, the Secretary of State for Environment, Food and Rural Affairs for determination, pursuant to regulation 26 of the Commons Registration (England) Regulations 2014 (SI 2014 No. 3038) (“the 2014 Regulations”).

3

The application land comprised some 46.5 hectares (or 115 acres) of operational land which included the runway, taxiways, fuel storage depot and in the south-eastern part of the site, the terminal building (including control tower), the Bushe Café and car parking. The terminal building has a footprint of about 360 sq m and an overall floor area of about 760 sq m. It is a two-storey building.

4

The Defendant's Inspector held a public inquiry on 2 to 5 April 2019. The application was opposed by HCC. The Open Spaces Society (“The OSS”), the Second Interested Party, also appeared at the inquiry to oppose the application along with other objectors notably Mr. Peter Tipton (an individual with commoners' rights over Yateley Common including the site of the application for de-registration), Councillor David Simpson and Councillor Adrian Collett (respectively the Third, Fourth and Fifth Interested Parties).

5

In his decision letter dated 12 June 2019 the Inspector determined that the statutory requirements for the removal of the land from the register were satisfied and so he allowed BAL's application.

6

HCC (represented by Mr. George Laurence QC and Mr. Simon Adamyk) apply by way of judicial review to quash the Inspector's decision. They are supported by the OSS (represented by Mr. Philip Petchey) and by Mr. Tipton (represented by Dr. Ashley Bowes). The Defendant (represented by Mr. Ned Westaway) opposes the application supported by BAL (represented by Mr. Douglas Edwards QC and Mr. George Mackenzie). I am very grateful to them for their detailed submissions, both written and oral, and for the additional research which they undertook at the court's request during the hearing.

7

Paragraph 6 of schedule 2 to the 2006 Act provides that:-

“(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of common land.

(2) This paragraph applies to land where–

(a) the land was provisionally registered as common land under section 4 of the 1965 Act;

(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;

(c) the provisional registration became final; and

(d) since the date of the provisional registration the land has at all times been, and still is, covered by a building or within the curtilage of a building.

(3) A commons registration authority may only remove land under subparagraph (1) acting on–

(a) the application of any person made before such date as regulations may specify; or

(b) a proposal made and published by the authority before such date as regulations may specify.”

8

In order for the land to be de-registered the Inspector had to be satisfied of all four requirements in paragraph 6(2). It was common ground that requirements (a) and (c) were satisfied. The land had been provisionally registered as part of Yateley Common on 16 May 1967 and that registration became final on 26 March 1975. Those opposing the application raised a number of other issues which were resolved by the Inspector and are not in contention in these proceedings. Accordingly, there is no longer any dispute before the court that the land covered by the terminal building and café satisfied requirements (b) and (d) continuously from 16 May 1967.

The main issues

9

The central issue for the court is whether the Inspector erred in law in deciding that the whole of the operational land of the airport (which included the application land) fell within “the curtilage of a building”, namely the terminal building, at all material times (DL 2 and 39).

10

The Inspector had the benefit of detailed submissions from the parties at the inquiry. In these proceedings they have maintained their respective contentions on the correct approach to identifying the curtilage of a building under the 2006 Act.

11

The Inspector addressed those submissions in a careful decision letter (“DL”). In DL 43 the Inspector referred to the judgment of Lieven J in Challenge Fencing Limited v Secretary of State for Housing Communities and Local Government [2019] EWHC 553 (Admin) for the helpful summary at [18] of several factors which he said “may inform a decision on the existence and extent of curtilage in any given case”:-

“(i) The extent of the curtilage of a building is a question of fact and degree, and therefore it must be a matter for the decision-maker, subject to normal principles of public law;

(ii) The three Stephenson factors must be taken into account:

a) Physical layout;

b) The ownership, past and present;

c) The use or function of the land or buildings, past and present.

(iii) A curtilage does not have to be small, but that does not mean that the relative size between the building and its claimed curtilage is not a relevant consideration Skerritts p. 67;

(iv) Whether the building or land within the claimed curtilage is ancillary to the main building will be a relevant consideration, but it is not a legal requirement that the claimed curtilage should be ancillary Skerritts p.67C;

(v) The degree to which the building and the claimed curtilage fall within one enclosure is relevant, Sumption at para 17 and the quotation from the OED of curtilage as “ A small court, yard or piece of ground attached to a dwelling house and forming one enclosure with it”. In my view this will be one aspect of the physical layout, being the first of the Calderdale factors.”

The Inspector sought to apply these “factors” in his decision letter. For the purposes of the application to de-register under the 2006 Act it was unnecessary for him to refer to or apply principle (vi) in the judgment of Lieven J.

12

BAL submitted at the inquiry that it was appropriate for this list of factors drawn from Challenge Fencing to be applied by the Inspector. HCC did not argue otherwise, so far as the list goes, either at the inquiry or in this court. Instead, HCC has raised two specific grounds of challenge:-

(i) The Inspector failed to apply an additional test said to be derived from the decision of the Court of Appeal in Skerritts of Nottingham Ltd v Secretary of State for Environment, Transport and the Regions [2001] QB 54, namely whether the size of the land exceeds anything which could properly be described as the curtilage of the relevant building, in this case the terminal building;

(ii) The Inspector misunderstood the concept of “ancillariness” by deciding that both the land was ancillary to the terminal building and that the building was ancillary to the land at one and the same time.

13

The OSS's submissions raised broader, rather more fundamental questions. There was no objection to their entitlement to do so in these proceedings. Although The OSS acknowledged that the criteria in Challenge Fencing at [18] were relevant factors to be taken into account, they submit that by themselves they were insufficient for the purposes of identifying the curtilage of a building under paragraph 6 to schedule 2 to the 2006 Act. De-registration of an area of common land results in the extinguishment of any rights of common over that land without any compensation. The OSS recognises that the word “curtilage” has not been defined by Parliament and is generally treated as not being a term of art, but they submit that the court should nevertheless grapple with the issues raised by the present case and with the risk of applications being made to deregister extensive areas of common land. They submit...

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