Blackbushe Airport remains as common land
Date: 10 November 2023
Following a lengthy legal battle which has finally concluded after seven years, almost the entirety of Blackbushe Airport is to remain common land. The airport forms part of Yateley Common in Hampshire. In 2016, Blackbushe Airport Ltd (“BAL”) (the operator of the airport) applied to remove the entirety of the operational area of the airfield (some 115 acres or 46.5 hectares) from the register of common land. The application was brought under paragraph 6 of Schedule 2 to the Commons Act 2006, which allows an application to be made to de-register common land which, at the time of its provisional registration under the Commons Registration Act 1965 and continuously to date, has been covered by a building or is within the “curtilage” of a building. BAL argued that the whole of the substantial operational area of the airport was within the “curtilage” of the terminal building.
George Laurence KC and Simon Adamyk were instructed on behalf of the commons registration authority (Hampshire County Council) to oppose the application. In 2019, following a public inquiry, the Inspector granted the application. However, the Council brought judicial review proceedings in the High Court, contending that the Inspector had made an error of law in adopting a flawed definition of “curtilage”. Following a hearing in 2020, the High Court (Holgate J) agreed that the Inspector had indeed made an error of law and therefore quashed the Inspector’s decision (R (Hampshire County Council) v Secretary of State for Environment, Food and Rural Affairs  EWHC 959 (Admin),  QB 89). BAL appealed to the Court of Appeal but in 2021 the Court dismissed their appeal and upheld the quashing order, confirming that the Inspector had indeed applied the wrong legal test ( EWCA Civ 398,  QB 103). Permission to appeal to the Supreme Court was refused. George Laurence KC and Simon Adamyk represented the commons registration authority throughout the proceedings.
The original decision having been quashed, the matter was remitted to the Inspector to reach a fresh decision based this time on the correct legal test. In a decision letter on 10 November 2023 (Application COM/3206697R), a different Inspector held that only the actual footprints of the terminal building and the café building could validly be de-registered (a position which the commons registration authority had accepted from the start).