“A church house, gin house, a school house, outhouse”
To what extent were Ike & Tina Turner also referring to the curtilage of any of those buildings?
“There are some words or expressions which are like an elephant; its essence is difficult to put into words, but you know it when you see it. “Curtilage” is a word of that nature.” – Andrews LJ in this week’s free text book from the courts: Blackbushe Airport Limited v Hampshire County Council (Court of Appeal, 18 March 2021).
The c word appears regularly in legislation, without definition. The Court of Appeal has done us all rather a service by gathering together the previous case law and attempting to arrive at common principles.
For instance, look at section 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990: the definition of “listed building” includes “any object or structure within the curtilage of [a listed] building which, although not fixed to the building, forms part of the land and has done so since before lst July 1948”.
And it even appears in the NPPF: the definition of “previously developed land” includes “land which is or was occupied by a permanent structure, including the curtilage of the developed land…”
But what on earth does it mean?
In the Blackbushe case the question arose in relation to the operation of the Commons Act. Land can be deregistered as a village green if it can be shown to be “within the curtilage of a building”. The question was, as the airport owner claimed, 115 acres forming the operational part of Blackbushe Airport, could be deregistered on the basis that it is in the curtilage of “a two-storey terminal building, with a footprint of about 360 m2 and an overall floor area of about 760 m2, which serves as the airport’s operational hub.”
The inquiry inspector had accepted the airport’s argument but his decision was quashed by Holgate J. The Court of Appeal agreed with Holgate J:
“If what is meant by “the curtilage of a building” is understood correctly, and all relevant factors are taken into account when determining whether the statutory requirements were satisfied in this case, the answer is no. This extensive area of operational airfield cannot properly be described as falling within the curtilage of the relatively small terminal building.
That common sense conclusion flows inexorably from the correct interpretation of the relevant provisions of the 2006 Act set out above, and their application to the facts. It is also consistent with the approach taken in the authorities in which the question of what falls “within the curtilage of a building” has been considered in other contexts, although none of them was directly concerned with this statute.
In deciding that the statutory criteria were met, the Inspector applied the wrong test by asking himself whether the land and building together “formed an integral part of the same unit” because he found that there was “functional equivalence” between them. That error is perhaps best demonstrated in paragraph 83 of his decision letter, where he described the operational area as “part and parcel with the building and an integral part of the same unit” instead of asking whether the land should be treated as if it were “part and parcel of the building”. The difference is critical, and it led to the Inspector addressing the wrong question, namely, whether the land and building together fell within the curtilage of the airport, rather than whether the land fell within the curtilage of the building.”
“Since it is the building which is to be treated as wrongly registered, the inference can be drawn that the relationship of the land to the building must be sufficiently proximate that a reference to that building – in this case, the terminal building – could be treated, without artifice, as including the land as well. So, for example, a reference to “Keeper’s Cottage” would naturally be taken to include a reference to the cottage garden. A reference to the terminal building at Blackbushe Airport would not be naturally understood as referring to the whole airport, or to 115 acres of operational land of which the terminal building occupies a very small part.
Looking at the matter from another perspective, in order to achieve the deregistration of the terminal building which is deemed by Parliament to have been wrongly registered as common land, whilst it would be reasonable and appropriate to include some of the surrounding land that might be referred to figuratively as “part and parcel of” the building, or “belonging to” the building, it is plainly unnecessary to deregister the whole of the rest of the operational area of the airport.”
“…just as one can tell immediately that a giraffe is not an elephant, it is probably far easier to recognise that something is not within the curtilage of a building than it is to say how far the curtilage extends. The present case is a good illustration.”
“As Holgate J recognised in his judgment at [73] to [76], although “curtilage” is not a term of art, but is to be given its ordinary and natural meaning, its meaning is not completely provided by the dictionary. The concept has its origins in a small piece of land attached to a dwelling-house. Holgate J quoted the Oxford English Dictionary (“OED”) definition:
“A small court, yard, garth or piece of ground attached to a dwelling-house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling-house and its out-buildings.”
That definition begs the question of what the law would regard as “forming one enclosure” with a dwelling-house, or what is the ambit of the “area” in question.
In any event, as the Judge pointed out, in the 2006 Act (as in other legislation in which the expression is used) the “building” whose curtilage is being considered does not have to be a dwelling-house. Moreover, as will be seen, although the size of the land will be a relevant consideration, the extent of the curtilage of a building may vary with the nature and size of the building. To refer to the area as “small” (or conversely “large”) is not particularly helpful in a context where size is relative. What falls within the curtilage of a manor house, or a large industrial mill, or a factory, may not be the same as what falls within the curtilage of a dwelling house. What falls within the curtilage of a dwelling-house may depend on the size and configuration of the dwelling-house. Even so, proportionality, whilst relevant, may not be definitive; a small cottage will sometimes have a large garden, whereas a large townhouse may have a tiny terrace.”
“… the test is not whether the terminal building could function without an operational airport, nor whether the Application Land was necessary for the functioning of the airport. Nor is the test whether the Application Land and the terminal building together form one part of an operational unit or whether they fall within a single enclosure. The question whether, by reason of the association between them, the law would treat them as if they formed one parcel, or as an integral whole, depends on the application of the “part and parcel” test to the facts of the particular case.”
“Holgate J was right to hold that the phrase “the curtilage of a building” in the 2006 Act 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, nor whether the building forms part and parcel of some unit which includes that land. He therefore correctly concluded that the Inspector’s decision was fatally flawed by material errors of law.”
In a supporting judgment Nugee LJ added some useful guidance:
“If we want to know what a word’s ordinary meaning is, it is to my mind more helpful to ask how it is used in practice. This is after all what we do with everyday words. We do not know what the word house means because we have looked it up in the dictionary; we know what a house is because we have experience of how the word house is used. In the same way if we want to know what curtilage means, it is helpful to look at examples of how it has been used in practice. Such an exercise may not indicate the outer edges of its meaning with precision, but it does help to illustrate its central meaning.
Fortunately the extensive array of authorities cited to us on this appeal enables us to do this. We find for example that in the case of modest houses, the curtilage would not on the face of it extend to the whole of 10 acres of pasture land let with a cottage (Trim v Sturminster RDC [1938] 2 KB 508); that a field used for keeping cows was not part of a house (Pulling v London, Chatham and Dover Railway Co (1864) 3 De G J & S 661); and that paddocks have been held not to be part of the curtilage of houses in both Methuen-Campbell and Burford v Secretary of State for Communities and Local Government [2017] EWHC 1493 (Admin). On the other hand the curtilage does include a wall enclosing a recently expanded part of the garden (Sumption v Greenwich LBC [2007] EWHC 2776 (Admin)).
In grander houses, the curtilage would extend to “the house, the stables and other outbuildings, the gardens and the rough grass up to the ha-ha if there was one”, but not to the 100 acre park surrounding a mansion house (Dyer at 358F-G per Nourse LJ); thus it would include a wall forming part of a ha-ha (Watson-Smyth v Secretary of State for the Environment (1992) 64 P&CR 156); and a stable block even some distance away from the main house (Skerritts); but not 64½ acres of a park, meadow land and pasture land (Buck d. Whalley v Nurton (1797) 1 B & P 53); nor a 650m long fence along the driveway (Lowe v First Secretary of State [2003] EWHC 537 (Admin)). Admittedly a devise of a mansion-house to the testator’s wife was held to include three meadows let for grazing in Leach v Leach [1878] WN 79, but in Methuen-Campbell at 543F Buckley LJ said that he did not think, unless there was some special context, that this very liberal construction adopted by Malins V-C was good law.
When one moves away from dwelling-houses we find that the purpose-built residence of a medical superintendent within the boundary of a lunatic asylum was within the curtilage of the asylum (Jepson v Gribble [1876] 1 Ex D 151); but firemen’s houses outside the boundaries of the yard to a fire station were not within the curtilage of the fire station (Barwick). A courtyard and access to a warehouse and mill was part of the curtilage (Caledonian Railway Co. v Turcan [1898] AC 256); as was a piece of ground in front of a public house used for access (Marson v London, Chatham and Dover Railway Co (1868) LR 6 Eq 101); and two small open spaces in an oil depot (Clymo); but not a large hardstanding massively in excess of what was necessary for an undertaking in a modest building (Challenge Fencing). To these can be added Calderdale, which concerned a terraced row of houses physically linked to a mill by a bridge and within its boundaries, and which is extensively considered by Andrews LJ above.
A survey such as this is neither scientific nor comprehensive. Nor does it give any indication why in any particular case the Court decided as it did: that requires a consideration of the explanations given by the judge(s) in any particular case. Nor does it take account of the different statutory contexts in which the question may arise. Nor is it any substitute for a careful analysis of the question when it does arise. But that does not mean that it has no value. To my mind it gives a good idea of the concept of what it is for a piece of land to be within the curtilage of a building; it illustrates the natural and ordinary meaning of the word. I will not attempt to define it, but these are all examples of bits of land that go with a building, of “relatively limited” extent (Skerritts), that are “intimately associated” with it (Methuen-Campbell)”
What is so interesting is that whilst the Court of Appeal upheld Holgate J’s first instance judgment, they differed from him in one important respect – he had accepted that “curtilage” could have a broader and more expansive definition for the purposes of listed buildings legislation:
“For the reasons I have already given, I do not consider that the use of “curtilage” in the extended definition of “listed building” is analogous to its use in the de-registration and non-registration provisions in schedule 2 to the 2006 Act. The 2006 Act takes a balanced approach to the protection of, on the one hand, rights of common and public access to commons and town or village greens and, on the other, the interests of the owners of buildings on such land. There is no justification for adopting for the 2006 Act the “broad approach” to defining curtilage which the court expressly employed in Calderdale in order to promote the efficacy of listed building control.”
Contrast with Andrews LJ: “I do not accept that the test in a listed building case is any different…”
The, previously understood, extended definition with regard to listed buildings is reflected in current Historic England guidance – see for example this example they set out:
Surely this approach needs to be viewed with caution in the light of the Court of Appeal’s judgment: an elephant is or is not an elephant, curtilage is or is not curtilage.
Simon Ricketts, 19 March 2021
Personal views, et cetera
SIMONICITY 