Case No. UKUT-0237-(LC)-UTLC-No:-LC-2021-261

. In this case ownership of the Oast House at the material day is a problem for the appellant because Jessica, as owner of the Oast House, did not become a director until 25 March 2013. There was therefore no connection between the ownerships at the material day. Moreover, although Rosanne has an option to purchase the Oast House, the appellant does not. It only has an option to purchase the courtyard area (outlined green on the plan above).43.Mr Westmoreland Smith concluded that the stables are not in the curtilage of the Oast House. They are entered from the appellant’s land, not from the Oast House and are more closely associated with the arena than the house. The stables are close to the Oast House, but closer to the arena. Although the access road passes between the stables and the arena there is only a physical barrier between them when a chain is hung across the opening beside Stables 2. The users of the stables come from Old Place as well as the Oast House and the unifying factor is the arena where horses from the stables are ridden.44.He submitted that there is no prospect of the stables passing in any conveyance of the Oast House as they are in different ownership and not part and parcel of it. They therefore fall outside of ss.66(1)(b).Discussion45.In Bigwood the Tribunal reviewed authorities on the meaning of “curtilage” in the context of listed buildings, but noted that the context of the 1988 Act is different and avoided further reliance on that word. Mr Westmoreland Smith’s submissions nevertheless insisted on addressing the question of whether the stables were in the curtilage of the Oast House. That is not the statutory question. At [54] the Tribunal in Bigwood stated that in considering whether the equestrian facilities were appurtenances for the purposes of rating they took into account “…the nature and function of the buildings and other facilities themselves, their proximity to each other and the general layout of the site.” I will use these criteria to consider first whether the disputed buildings are capable of being considered appurtenances for the purposes of rating, before moving on to the issue of separate ownership of the living accommodation with which they are enjoyed.46.This is a case where a site inspection can create a fresh perspective. It was apparent on site, as illustrated in the enlargement plan at paragraph 21, that although the two stables buildings are treated as a single entity by the parties, there are notable differences between them in the context of this preliminary issue. I look first at the nature and function of the buildings and facilities, both in the past and at the material day.47.Stables 1 was constructed at some time in the mid-1980s, to replace an older, dilapidated stables building. As I understand the evidence, until 1991 Stables 1 was used exclusively by Rosanne, who lived at the Oast House. The 10 stables were sufficient for her use as a rider and competitor and the functional link of use and enjoyment between the two buildings was established by that date. The provision of stabling at the hereditament was extended in 1991, by the construction of Stables 2, because Francesca had moved to Old Place and additional stabling was needed to accommodate her family’s horses. 48.Once Stables 2 had been constructed, twice as many horses could be stabled at Court Lodge Farm and, from 1991 onwards, the use and enjoyment of all the stables was shared between Rosanne, her sister Francesca and their respective families. So, the functional link with the Oast House continued through to the material day, with an additional functional link of use and enjoyment with the living accommodation at Old Place.49.Turning now to the proximity of buildings to each other and the general layout of the site, the enlargement plan shows that there is an open space and ungated connection between Stables 1 and the Oast House through the courtyard. Access to the courtyard can also be gained from the cloister building in the Oast House garden. Standing in the courtyard the connection between the two buildings is apparent and, in my view, this layout reinforces the functional link between the Oast House and Stables 1 which has existed since the stables were constructed. At the material day, the Mess room in the courtyard between the two buildings was in use as a grooms’ rest room, tack room and hay store associated with both Stables 1 and Stables 2. 50.As the Tribunal confirmed in Bigwood, in the context of this sort of building, size is less important than function so, had their proximity and layout been different, it might have been possible to conclude that both stable buildings and all 20 stables had a functional link with the Oast House. But the Stables 2 building is situated outside the gated area and has no direct connection with Stables 1, the courtyard or the Oast House. The Hay store sits beyond Stables 2 and has no obvious functional link with the Oast House.51.I therefore consider that at the material day Stables 1 and the Mess room were appurtenant to the Oast House, by reason of their historic and continuing nature and function, their proximity to each other and the general layout of the site. Stables 2 and the hay store were not appurtenant to the living accommodation and are not domestic property within the meaning of s.66(1).52.I now consider whether the fact that Stables 1 and the Mess room were in separate ownership from the Oast House, with which they were and are enjoyed, prevents them from being appurtenances, and therefore domestic property, for the purposes of the 1988 Act. Does separate ownership trump the finding on other well established criteria? This seems to me to be a matter of degree, very much depending on the identity of the different owners.53.It was not, in the end, Mr Westmoreland Smith’s submission that an appurtenance cannot be domestic property if it is enjoyed with living accommodation held in separate ownership. He accepted that s.66(1)(b) allows “enjoyed with” with as an alternative to “belonging to”. His submission was that in order to be called appurtenant to living accommodation the property must sit within its curtilage, and the definition of curtilage itself requires consideration of ownership. He relied on the criteria originally stated by Stevenson LJ in Sutcliffe, when considering the concept of curtilage for a listed building. Those criteria were physical layout, ownership (past and present) and use or function (past and present). In Sutcliffe common ownership was a factor which underpinned the decision to include 15 cottages within the curtilage of a listed mill building. Separation of ownership was not an issue that was considered, and the decision concerned listed buildings, so it can take us no further in the context of the 1988 Act.54.Considering the separation of ownership in this case, I bear in mind that at the material day the appellant owned not only the stables but also the courtyard area outlined green, which was not transferred to Jessica until nine months later in December 2010. Within the courtyard stand two buildings: the Barn and the Mess room. Both buildings were originally treated by the respondent as non-domestic but, by the date of the hearing, the respondent had conceded that the Barn was domestic property. I agree with this concession, which is supported by its function and the physical layout of the courtyard, and I apply the same approach to the Mess room. 55.Stables 1 is different because at all times since its construction it has been in separate ownership from the Oast House. However, in this case the appellant is a company which manages the commercial and financial affairs of one family. Mr Ormondroyd describes it as the agent for the family. The owner of the Oast House at the material day was a member of that family, although not at that time a director of the appellant. Her mother, the former owner of the Oast House, was a director of the appellant at the material day and retained a personal right of pre-emption over the Oast House. The separate ownerships have not diluted the functional link which has existed between the Oast House and Stables 1 since that building was constructed in the mid-1980s because in this case the separate ownerships are hand in glove.56.In Bigwood at [54] the Tribunal explained why it was appropriate to focus on the word “appurtenance” rather than “curtilage” in the context of the 1988 Act and I have already concluded that Stables 1 and the Mess room were appurtenances to the Oast House at the material day. The separate ownership of the Oast House did not prevent those buildings from being enjoyed with it for the purposes of s.66(1)(b) at the material day and does not prevent them from being appurtenances.