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

.”31.Mr Ormondroyd drew attention to the Tribunal’s statement at [55] regarding size: “…there is no rule that a large building, such as a barn or stable, cannot be appurtenant to a smaller building, such as a house”. At [59], having reviewed higher authority, it continued: “In general, therefore, stables are a category of building which falls readily within the scope of appurtenant property.” And at [64] it stated: “More important than the size of the facilities is their function of accommodating horses belonging to the owners of a private family home, which they keep for their own and their family’s pleasure including for competition. We do not regard that function as different in kind from stables attached to a house belonging to any other equestrian enthusiast and used by their family.”32.It was Mr Ormondroyd’s case that the same criteria should be applied in this case to find that the stables are domestic property. He accepted that ownership is a relevant consideration but submitted that it is not determinative or even particularly important. As the Tribunal noted in Bigwood at [50] in Attorney General ex rel Sutcliffe v Calderdale Borough Council (1982) 46 P & CR 399, a case concerning the curtilage of a listed building, Stephenson LJ identified three relevant factors in determining whether a structure was within the curtilage of an existing building, namely: the physical ‘layout’ of the listed building and the structure; their ownership, past and present; and their use or function, past and present. But these are relevant factors, not tests as they were later described by the President of the VTE in Cornwall v Alexander [2014] RVR 504.33.Taking each of those relevant factors in turn, Mr Ormondroyd submitted that the layout of the buildings comprising the hereditament shows that the stables are in the curtilage of the Oast House. Past ownership confirms this since, prior to purchase by the appellant in 1983 and transfer of the Oast House to one of its directors, there was unity of ownership of the Oast House and the area where the stables are now sited, on which stood dilapidated stables at that time. Finally, the use and function of the stables in both the past, prior to purchase, and at the material day has been associated with the house. Does separate ownership prevent common use and function? It could if there was an unconnected third party owner, but having separate ownership has not undermined the physical and functional relationship on this hereditament.34.Regarding enjoyment with the Oast House, Mr Ormondroyd submitted that both the stables and the arena are enjoyed with it, but the difference is that the arena is used for limited commercial purposes. This involves Francesca’s husband training people on their own horses and up to 17 competition events per year. Horses brought for training are stabled in the six temporary boxes inside the arena building. Horses brought for events are accommodated in rows of temporary stalls erected on land away from the arena. There is therefore no link between the commercial activities and the stables. They are used by the occupier of the Oast House for her own purposes. Whilst Jessica may have no proprietary right to use the stables she does not need one and has never been prevented from doing so. Just as Francesca has occupied her house at Old Place for 30 years without any formal documentation of rights, it is a family arrangement. The appellant pays the bills and costs of the stables and provides staff to do maintenance work, all as a benefit to its directors. It serves the purpose of the family and is not separate from it.35.The stables are also used by Francesca, who lives at Old Place, but this does not make them non-domestic. There is no requirement that the stables should be enjoyed with only one dwelling or be in common occupation with another dwelling. In Allen v Mansfield District Council [2008] RA 338 the Tribunal (HHJ Huskinson) found at [26] that a district heating system was not appurtenant to living accommodation unless it was situated within an identifiable curtilage used wholly for the purposes of living accommodation to which it belonged or with which it was enjoyed but, if that condition was satisfied, it would not cease to be satisfied merely because the system served other dwellings outside the property within whose curtilage it lay.36.Drawing a comparison with the findings in Bigwood, Mr Ormondroyd submitted that the stables at this hereditament are a category of building within the scope of appurtenant property and their function is to accommodate horses belonging to the owners of private family homes at the Oast House and Old Place. Moreover, there is proximity to the Oast House and the general layout does not separate them. Separate ownership is heavily relied on by the respondent as a reason for the stables being non-domestic property, but this must be considered in the round in the context of other factors. Historically the area where the stables are located was in the same ownership as the Oast House and separate ownership has not affected their use and function.Submissions for the respondent37.Mr Westmoreland Smith submitted that with regard to curtilage within which the stables could be appurtenant property, the only realistic candidate for living accommodation was the Oast House. The appellant had suggested that the house at Old Place, which is in common ownership with the stables, could also be considered as relevant living accommodation, but it is a mile away up a track and in another county. The stables cannot be within its curtilage, as concluded by the Tribunal in Martin v Hewitt [2003] RA 275 where three boathouses on the shores of Lake Windermere were found not to be domestic property because they were a substantial distance from the living accommodation of their owners and therefore not appurtenances within the curtilage of those houses.38.Regarding the requirement that the appurtenance should belong to or be enjoyed with living accommodation, the respondent suggested that because, as owner of the Oast House, Jessica has no personal right to use the stables which belong to the company they cannot be enjoyed with it. They are enjoyed with the arena, where the horses are ridden.39.Looking at their function, the stables support the Sternberg family in their sport of reining and the arena is integral to that. The current arena replaced an earlier indoor arena on that site. The accounts of the appellant give a feel of the activities on the site. The sale of horses belonging to family members involves using the arena to ride and show them for sale. The arena and stables are for specialist horses and there is no material boundary between them. They have a shared access road. Both the stables and the arena are owned by the appellant, who covers all the costs of keeping the horses, including the wages of staff. There is one meter and one bill for each of the services on site. Those using the stables do not spring from one single identifiable accommodation and the Oast House is not owned in common with the stables. The stables are not enjoyed with the Oast House, but with the arena, which ties everything together by providing the facility to train the horses kept in the stables. The stables are in close proximity to the arena and have access to it (from Doorways B and C).40.Mr Westmoreland Smith submitted that the need for an appurtenance to be within the curtilage of the house was folded into the Bigwood decision by reference to case law. The concept of curtilage had not been jettisoned. In Methuen-Campbell v Walters [1979] QB 525 (at 543H) LJ Buckley said “In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part of the latter.” In Bigwood at [61] the Tribunal referenced that observation, stating that the size of the equestrian buildings and the professional use of the facilities did not prevent them from being “intimately associated” with the house so as to form “part and parcel” with it. That is not the case at this hereditament.41.Mr Westmoreland Smith accepted that an appurtenance could be enjoyed with living accommodation as an alternative to belonging to it. In the Lands Tribunal decision of Head (VO) v Tower Hamlets LBC [2005] RA 177 it was held that district heating systems integral to the council’s residential buildings were appurtenant to living accommodation, even though not to any individual hereditament, and therefore fell to be treated as domestic property. However, in Allen the Tribunal found at [26] that a district heating system was not appurtenant to living accommodation unless it was situated within an identifiable curtilage used wholly for the purposes of living accommodation to which it belonged or with which it was enjoyed. In this case the stables are not integral to the curtilage of the Oast House.42.In Bigwood the key difference from this hereditament was the unified ownership between the house and the equestrian facilities. No reference was made to ownership in the decision as it was not relevant to that case. However, in Cornwall v Alexander, the President of the VTE, Professor Graham Zellick QC, had concluded from his summary of case law relevant to the meaning of “curtilage” that there were three tests: