Land which is registered as common land is subject to very strict restrictions on its development. In additional to planning permission, express consent from the Secretary of State is required for even very minor works.
Common land can be removed from the register under s.16 Commons Act 2006 if exchange land is provided and it is appropriate to do so having regard to a number of material considerations, including: the rights of commoners, nature conservation and public access.
Schedule 2, paragraph 6 of the Commons Act 2006 provides another route by which land can be removed from the common land register but without any of those strict requirements being met. The requirement is that since the date of provisional registration, the land was covered by a building or was within the curtilage of a building.
Taking advantage of this provision, the owners of Blackbushe Airport persuaded an Inspector (appointed by the Secretary of State for Environment, Food and Rural Affairs) to deregister 115 acres of Yateley Common in Hampshire, on the basis that it fell within the curtilage of a 350 sqm terminal building. The Inspector reasoned that as the land was used "part and parcel" with the terminal building and was "proportionate" to its use, it therefore fell within its curtilage.
That decision was challenged by Hampshire County Council, supported by the Open Spaces Society and one of the commoners, Mr Tipton. In a detailed judgment, which considers the substantial case law on the word "curtilage" across various statutory regimes, Holgate J has found the Inspector's interpretation to be incorrect.
Distinguishing the broad interpretation of the term "curtilage" which has grown up around the listed building legislation, Holgate J found the correct interpretation of the term under the Commons Act 2006 required "the land in question to form part and parcel of the building to which it is related". The correct question to pose therefore is:
"whether that land falls within the curtilage of the building and not whether that land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose" (para.124).
If the Inspector's approach were to be adopted, Holgate J found that even land which was "grossly disproportionate" to the size of the building could be said to be curtilage merely because the size was proportionate to the purposes by which the building and land were put. Accordingly, that reasoning could lead to golf courses or other open-air recreational facilities being de-registered if they were occupied with a clubhouse at the point of registration. Such an approach would be "...way beyond any reasonable meaning that could be given to the phrase "the curtilage of a building"" (para.143).
This case provides much needed clarity to the scope of the de-registration provisions introduced by the 2006 Act. As the Judge observed in this case, "save for fairly straightforward or obvious cases, [satisfying the Schedule 2, paragraph 6 provisions] is likely to be a challenging requirement to satisfy, particularly in relation to the "curtilage" limb where the area of land is substantial" (para.34).
Notwithstanding that he found the appeal had no prospect of success, Holgate J granted permission to appeal to the Court of Appeal on the basis of a compelling public interest, so there may well be further consideration of this point in due course.
Dr Ashley Bowes appeared successfully for Mr Tipton (instructed by Kristina Kenworthy of Richard Buxton Solicitors).