Common Land Deregistration
De-registration of Blackbushe Airport from Yateley Common
This page contains information on the application made in 2016 pursuant to Schedule 2(6) of the Commons Act 2006.
Background
In early 2016 plans were submitted to Hart District Council for the future development of Blackbushe Airport (See Vision). These plans outlined the proposal to build new hangars, offices and a replacement Terminal facility on the south side of the airfield, adjacent to the A30. When this development proposal was presented to both Hart District Council and later to the Blackbushe Airport Consultative Committee, it was met with a favourable response. However, one concern that was raised in both meetings was the need to also satisfy the requirements of the Commons Act 2006.
There are two mechanisms within the Commons Act 2006 which provide for the deregistration of land from the commons register under certain circumstances.
The most often used is contained within Section 16 which provides for exchange land. The section is summarised below
The owner of any land registered as common land may apply to the Planning Inspectorate for the land (“the release land”) to cease to be so registered.
If the release land is more than 200 square metres in area, the application must include a proposal for “replacement land” to be registered as common land in place of the release land.
In determining the application, PINS shall have regard to—
the interests of persons having rights in relation to, or occupying, the release land (and in particular persons exercising rights of common over it);
the interests of the neighbourhood;
the public interest including the public interest in;
nature conservation;
the conservation of the landscape;
the protection of public rights of access to any area of land; and
the protection of archaeological remains and features of historic interest;
any other matter considered to be relevant.
In late 2015 and early 2016 an exercise was conducted to identify appropriate replacement land in the vicinity of the airport, and Yateley Common CL24. There wasn’t any suitable land of the size required to deregister the airport. However, the legal advice the airport received highlighted an alternative measure, Schedule 2(6) of the Commons Act 2006 provides for the deregistration of buildings registered as common land.
(1) If a commons registration authority is satisfied that any land registered as common land is land to which this paragraph applies, the authority shall, subject to this paragraph, remove that land from its register of common land.
(2) This paragraph applies to land where—
(a) the land was provisionally registered as common land under section 4 of the 1965 Act;
(b) on the date of the provisional registration the land was covered by a building or was within the curtilage of a building;
(c) the provisional registration became final; and
(d) 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.
The legal advice the airport received identified that the Terminal Building and the Cafe were both built prior to the registration of Yateley Common CL24 and so fell within the remit of the act. As such the airport began to explore in detail this option.
In October 2016 an application was submitted to Hampshire County Council under Paragraph 6 of Schedule 2 of the Commons Act 2006 to de-register the 114.87 acres comprising the active airfield from the common land register. Under the conditions of the Commons Act 2006, this application had to be made to the commons registry authority, in this case Hampshire County Council (HCC). At this time, HCC indicated it would be unlikely that they would be able to impartially decide the case, and would most likely be referred to the Planning Inspectorate (PINS) for decision.
Consultation Period
A public consultation was held from 24th August to 8th October 2017 in which members of the public, and other interested parties were invited to respond to HCC. These responses were collated and provided to Blackbushe Airport on 21st December 2017. They consisted of 103 objections, and 10 letters of support. On 1st February 2018 Blackbushe Airport provided a response to these objections to HCC. A copy of this letter can be viewed here.
Referral to the Planning Inspectorate (PINS)
Because one registered “commoner” objected, HCC were required to refer our case to the Planning Inspectorate (PINS) , which they did on 9th July 2018. PINS formally accepted our case on the 6th August 2018.
Public Inquiry
On 6th September 2018 PINS confirmed that a public inquiry would be held, and on 18th October 2018 they announced it would be held commencing 2nd April 2019 at The Elvetham Hotel.
The inquiry commenced on Tuesday 2nd April 2019. Parties to the inquiry were:
The Applicant
Blackbushe Airport Ltd - Represented by Douglas Edwards QC & George Mackenzie
Objectors:
The Open Spaces Society (OSS) - Represented by Philip Petchey
Mr Peter J Tipton (Commoner)
Councillor Adrian Collett
Councillor David Simpson
The Commons Registration Authority
Hampshire County Council (HCC) - Represented by George Laurence QC & Simon Adamyk
The inquiry concluded on Friday 5th April 2019. The Inspector undertook an accompanied site visit on Thursday 4th April 2019 with representatives from OSS and HCC, as well as Blackbushe Airport.
Decision
On Wednesday 12th June 2019 the Planning Inspectorate issued their decision which granted the application to deregister.
Blackbushe Airport Ltd have issued a statement which can be found here.
Judicial Review
On 6th September 2019 a Judicial Review Claim Form was submitted by Hampshire County Council (HCC) against the Secretary of State for Environment, Food and Rural Affairs (SoS) with regards to the decision made by the Inspector. On 30th October 2019 permission was granted in an order from the High Court of Justice Queen’s Bench Division Planning Court for a Judicial Review into the inspector’s decision. The claim was heard in the High Court and whilst not the defendant, Blackbushe Airport Ltd actively participated as an interested party.
The Judicial Review commenced on Tuesday 11th February 2020 at the Royal Courts of Justice (Planning Court - Administrative Court Office) in London. Parties to the inquiry were:
The Claimant:
Hampshire County Council (HCC) - Represented by George Laurence QC & Simon Adamyk
The Defendant:
Secretary of State for Environment, Food and Rural Affairs - Represented by Ned Westaway
Interested Parties:
Blackbushe Airport Ltd - Represented by Douglas Edwards QC & George Mackenzie
The Open Spaces Society (OSS) - Represented by Philip Petchey
Mr Peter J Tipton (Commoner) - Represented by Dr Ashley Bowes
Councillor Adrian Collett - Not represented and did not appear.
Councillor David Simpson - Not represented and did not appear.
The review concluded on Wednesday 12th February 2020.
Judgement
The Judgement of The Hon. Mr Justice Holgate was handed down at 10:00 on Thursday 23rd April 2020 and is available in full on BAILII. The Blackbushe Airport statement can be read here.
Within the associated order accompanying his judgement, The Hon. Mr Justice Holgate permitted Blackbushe Airport to appeal his decision to the Court of Appeal.
Court of Appeal
On 13th May 2020 Blackbushe Airport Ltd formally appealed the Order of the Honourable Mr Justice Holgate dated 23 April 2020 in relation to claim CO/3493/2019.
The hearing took place on 23rd & 24th February 2021. Due to COVID-19 it was held by Microsoft Teams.
The judgement was issued on 18th March 2021 which dismissed the appeal and is available in full on BAILII. Blackbushe Airport has issued a statement here.
APPEAL TO THE SUPREME COURT
On 15th April 2021 Blackbushe filed an application for Permission to Appeal to the UK Supreme Court. The courts own guidance states that such applications will be considered and an answer given within 8 sitting weeks (early July 2021). On 12th April 2022, the Supreme Court took the decision to refuse our permission to appeal. Blackbushe Airport Ltd was disappointed that the case was not heard, especially when counsel for all sides identified at an early stage the case was destined for the court. Unfortunately following COVID-19, the court had a big backlog of cases, and had to be much more selective in those issues it heard. Whilst the cases it was hearing involved some which undoubtedly were of a higher priority, it was frustrating that it took the court a year to come to this conclusion.
The matter was then referred back to the Planning Inspectorate for the inspector to re-determine the original application in light of the court’s decision.
Redetermination by PINS
PINS wrote to the parties on 3rd October 2022 stating the inspector was minded to reject the entire application. As we understood it, this is not the case, at the very least, the two footprints of the Terminal and Café buildings should be deregistered as this was not in dispute.
We have informally consulted with the OSS as neither side wished to see the matter prolonged or incur significant additional cost. They too were surprised by the Inspector’s letter. We wrote to the inspector on 28th October 2022 to dispute the “minded letter” and provide a statement of case and exhibits in support of:
(a) that it was open to the Inspector to re-determine what the curtilage of the Terminal Building and the Cafe building are
(b) a series of factual representations documenting the use of the Terminal and the Cafe both at the point of registration in 1967 and the present use, and at all times in between. Our position was that the curtilage ought to be decided to include all the “landside” areas of the airport, namely the Terminal, Cafe, and the car park.
Hampshire County Council and Open Spaces Society disagreed, and submitted representations accordingly. HCC noted that there was likely an argument for the Cafe patio, but no greater area. In the interest of expediting the inspector’s decision, and drawing the matter to a close, we conceded on the car park, and resubmitted a plan showing the Terminal, Cafe, and Patio as the suggested curtilage.
We submitted this position on 30th November 2022, and after the other parties were given time to make additional representations, the matter was left to the Inspector on 17th January 2023 to redetermine. On 20th March 2023 we were informed that Inspector Alan Beckett would shortly be leaving the Planning Inspectorate, and a new inspector, Mark Yates has been appointed and would be considering it in August 2023. When we queried why the original inspector couldn’t determine it prior to leaving, given the material had been with him for over 2 months, we were informed he had actually already left.
A New Inspector
The new inspector conducted an unaccompanied site visit on the 15th August 2023. Following this, he raised queries regarding the size and extent of the Cafe Patio and invited further submissions on the point. Once again, in the interests of expediting the matter and not commencing rounds of submissions and cost for all parties, we reiterated the matters raised by all parties previously, confirmed we did not seek to make any further comments on the matter, and stated if the inspector was not convinced that the cafe patio satisfied the test for curtilage then he should determine the matter restricted to the footprints of the two buildings, which was not in dispute. This exchange concluded on 25th August 2023.
On 10th November a decision was finally issued by the Planning Inspectorate. The inspector has determined that neither the Terminal Building nor the Cafe has a curtilage which has remained consistent between 1967 and the present day and so neither building has a curtilage that meets the legislative criteria. He therefore determined that the building footprints should therefore be deregistered and no additional land.
Blackbushe Airport welcomes the decision which finally brings to a close a legal process that has lasted for 7 years. This decision now offers clarity and from this position the airport can move forward with a separate application for deregistration and exchange which we expect to submit in early January 2024.
You can read the inspector’s full decision here:
Summary
In summary, the Airport only seeks to re-develop the airfield itself, to provide better facilities and to generate future employment for the area, without having a detrimental impact on the local community and its recreational activities. We remain of the view that it was not a correct and proper decision to register an active aerodrome as a common initially, and that this status conflicts with measures within Civil Aviation legislation, as well as the Countryside and Rights of Way Act 2000 which recognise aerodromes as areas not subject to open access for obvious practical reasons.
We have been consistently frustrated by the delays presented at many of the stages. Since submitting the initial application 7 years ago, the airport has continued to operate in a state of uncertainty which has made investment very difficult, and has resulted in missed commercial opportunities as customers have lacked confidence in the long-term stability of the airport.
We remain committed to developing the airport as a centre of aviation excellence. Crucial to this is resolving the long-term issue of the common land in a way that is satisfactory for both the airport, as well as the local community and other stakeholders.