Blackbushe Airport was registered common land. This unusual state of affairs was because, after requisitioning during the Second World War, the land continued in use as a civil airfield and, upon derequisitioning in 1960, was not returned to use as a common. The current operators of the airport applied to remove the land from the register of common land on the basis that it lay within the curtilage of the terminal building (see paragraph 6 of Schedule 2 to the Commons Act 2006). The Open Spaces Society objected. The Inspector considered that whether the land was or was not within the curtilage of the control tower was a matter of fact and degree. In the circumstances, he decided that it was. More particularly he held that curtilage for the purposes of the Commons Act 2006 had the same meaning as it had in the Planning Acts. Following a recently decided case on the meaning of curtilage in the Planning Acts (Challenge Fencing [2019] EWHC 553 (Admin)), he held that it did not have to be an area ancillary to the terminal building and that there was no requirement for it to be a small area.

Douglas Edwards KC and George Mackenzie acted for Blackbushe Airport Limited, instructed by Laura Fuller of Burgess Salmon. Philip Petchey acted for the Open Spaces Society (direct access).