Court of Appeal hands down Test Case on Curtilage

18 Mar 2021

After a wide-ranging review of the extensive case law on the term “curtilage”, the Court of Appeal has decided that it is a “single concept” which has the same meaning in all statutory contexts.

The Court endorsed the approach of Buckley LJ in Methuen-Campbell v Walters [1979] 2 QB 525 as the correct approach (Andrews LJ at para.25 and Nugee LJ at para.127, with whom King LJ agreed at para.138). 

That case concerned a dwelling house and garden, to the side of which was an area of rough pasture, separated from the house and garden by a wire fence and wicket gate. The Court decided that the area of paddock land was not within the curtilage of the dwellinghouse because it was not “so intimately associated with [it] as to lead to the conclusion that [the paddock] forms part and parcel [of the dwellinghouse]” (see pp.543F-544D).

The test is not simply whether the land forms part an “integral whole” with the building or forms part of a single “unit”. Whilst land which is “part and parcel” with a building might form an “integral whole”, it does not follow that where land is in the same integral whole with a building it forms part of its curtilage.

Applying that principle, the Court found an inspector was wrong to de-register 115 acres of Yateley Common on the basis that it fell within the curtilage of an airport terminal building with a 360 sq m footprint under paragraph 6, Schedule 2 Commons Act 2006. Those provisions provide, inter alia, that where common land was either covered by a building or within its curtilage at the date of provisional registration, it may be de-registered without the onerous requirements of s.16 Commons Act 2006 (which include providing land in exchange).

Nugee LJ identified the inspector’s critical error at para.127 as follows: 

“Dr Bowes in his short, cogent submissions for Mr Tipton put his finger on it when he said that the Inspector did not really answer the statutory question, namely whether the airfield was within the curtilage of the terminal building, but a different question, namely whether they together formed part of a single unit.”

The Court of Appeal’s judgment can be found here.

Dr Ashley Bowes appears for the successful commoners, instructed by Kristina Kenworthy of Richard Buxton Solicitors.