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27th April 2020

De-Registration of Commons - The Meaning of 'curtilage' in the Commons Act 2006

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The Commons Act 2006 (“the 2006 Act”) enables by application the de-registration of land where it was provisionally registered as common land under the Commons Registration Act 1965 (“the 1965 Act”) and since such date the land has at all times been, and still is, covered by a building or within the curtilage of a building. But what does ‘curtilage’ mean within such context? The High Court in Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs & Ors [2020] EWHC 959 (Admin) has recently provided some useful guidance.

The Legislation for De-registering Common Land

By way of legislative background, section 1(1) of the 1965 Act provided for the registration of common land (which term includes herein town and village greens). An application for provisional registration generally had to be made by 2 January 1970. The provisional registration was then notified publicly. If there was no objection then the registration became “final”. If there was an objection then the disputes were determined by Commons Commissioners. If the provisional registration was confirmed by a Commissioner it became “final”. But if confirmation was refused the registration became void and was cancelled.

Section 22 and schedule 2 of the 2006 Act brought in legislative provisions to deal with non-registration as well as mistaken registration of land under the 1965 Act. They include:

  • Paragraphs 2 and 3 deal with non-registration under the 1965 Act of respectively common land and a town or village green;
  • Paragraph 4 deals with non-registration of waste land of a manor as common land;
  • Paragraph 5 addresses the incorrect registration of a town or village green as common land;
  • Paragraphs 6 and 8 deal with an application to remove land covered by a building or within the curtilage of a building from the register of common land; and
  • Paragraphs 7 and 9 deal with the removal from the registers of common land which should not have been registered because it did not properly qualify for registration under the 1965 Act.
Importantly, the statutory deadlines for the making of an application to alter a register under schedule 2 above are: (a) 31 December 2020 for pilot authorities; and (b) 15 March 2027 for the remaining authorities.

If an application under schedule 2 above is opposed or the relevant authority has a conflict of interest then it is referred to the Secretary of State for Environment, Food and Rural Affairs for determination, pursuant to regulation 26 of the Commons Registration (England) Regulations 2014.

The Case Facts

The present case concerned an application to de-register Yateley Common which was registered as common land under the 1965 Act pursuant to paragraph 6 of schedule 2. 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 dispute was in relation to paragraph 6 (2)(d) of schedule 2 and, in particular, as to whether “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”. Specifically, the meaning of ‘curtilage of a building’ in reference to the operational land of the airport to the terminal building.

On referral by Hampshire County Council to an inspector it was found that the operational land was within the curtilage of the terminal building based on a single integral whole assessment, and should be de-registered. The decision was judicially reviewed by the council, the Open Spaces Society and an interested party.

The Decision

In the Court’s decision it was stated by Holgate J that the word “curtilage” must be construed having regard to the purpose of the statutory provision for which it arises. He found that generally a narrow approach should be adopted unless the legislation purposively requires an otherwise broader approach.

On this reasoning he concluded that “curtilage” in the 2006 Act should be interpreted narrowly. Specifically, as to the relevant question as to the qualifying curtilage land for de-registration as common land under paragraph 6 of the schedule 2, Holgate J stated:

In my judgment the phrase “the curtilage of a building” in that legislation requires the land in question to form part and parcel of the building to which it is related. The correct question is whether the land falls within the curtilage of the building and not whether the land together with the building fall within, or comprise, a unit devoted to the same or equivalent function or purpose”.

This question being a matter of judgement for the decision maker.

In answering the above correct question Holgate J noted that ancillariness may be taken into account as a relevant factor, but it is not a pre-requisite for land to qualify as falling within a curtilage and there is no requirement for a curtilage to be “small”. Additionally, the correct question will include consideration of what is known as the three “Stephenson factors”. Namely, 1) physical layout; 2) the ownership, past and present; 3) the use or function of the land or buildings, past and present.

Holgate J concluded that the inspector had applied the incorrect question on “curtilage” and quashed his decision with the matter to be re-determined.

Relevance to Planning Law

The term “curtilage” is used within various statutory instruments and policy documents of planning law. In considering its interpretation under the 2006 Act, Holgate analysed the court decisions on “curtilage” in the context of planning law and helpfully noted in obiter the broader interpretation approach for “curtilage” applies only to listed building control but not development control. The latter will involve the narrower interpretation approach.

In relation to listed building control Holgate J noted the Court of Appeal decision in Attorney General ex rel. Sutcliffe v Calderdale Borough Council (1982) 46 P & CR 399 where Skinner J stated:

the part of the Act [section 54(9) of the Town and Country Planning Act 1971, now s.1(5) of the Listed Building Act 1990], we are concerned with deals with buildings of architectural or historical interest. I have to ask myself, from a planning rather than a strict conveyancing viewpoint, whether the buildings within the alleged curtilage form a single residential or industrial unit and, in this instance, whether the mill and the terrace form part of an integral whole”.

Lesson: This decision is no doubt a win for common land and will make applications for de-registration on ‘curtilage’ grounds more difficult. As Holgate observed in the case, save for fairly straightforward or obvious cases, the ‘curtilage’ limb is likely to be a challenging requirement to satisfy, particularly in relation to where the area of land is substantial.

For more information on the issues raised in this article please contact Brendon Lee by clicking here.