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Locality, environment and law: the case of town and village greens*

Published online by Cambridge University Press:  30 July 2007

Donald McGillivray  and
Jane Holder
Donald McGillivray
Affiliation:
Senior Lecturer, Kent Law School
Jane Holder
Affiliation:
Reader in Environmental and European Law, University College London*
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Abstract

In this paper we explore one type of commons – town and village greens – which are an important feature of the rural and, increasingly, the urban, English landscape. Greens are an ancient form of commons, but they are increasingly recognised as having contemporary significance, particularly because of their potential to act as a reservoir for natural resources and their enjoyment. They are, in other words, emerging out of a ‘feudal box’. We focus on the fact that town and village greens are recognised in law by their association with a group of people defined by their physical proximity to the land which is to be registered. Although this does not in itself constitute a community, the law requires for the registration of land as a town or village green a certain degree of organisation and self-selection and this has in the past fostered both a sense of subjective belief in ‘belonging’, as well as exclusion (the rights of local people being potentially ‘diluted’ by the use of the land by those from outside the locality). As well as helping to produce and recognise community and community identity, then, commons may simultaneously produce the conditions for disassociation and exclusion. In this context, we consider how law defines and upholds notions of locality, and also the ways in which an increasingly powerful environmental discourse might be seen to challenge the primacy given to locality as a way of defining and creating greens and, more generally, the practical effects of this on how decisions are made about preserving these spaces as ‘common’. We consider the scope of the public trust doctrine as providing an example of how law is capable of accommodating ideas of shared nature and natural resources, in this case providing a form of public ownership over natural resources. Whilst our analysis is rooted firmly in the law relating to town and village greens in England and Wales, this body of law displays certain important features more broadly applicable to a range of other types of common land, and raises more general issues about how law supports certain interests in land, often to the exclusion of others.

Type
Research Article
Information
International Journal of Law in Context , Volume 3 , Issue 1 , March 2007 , pp. 1 - 17
Copyright
Copyright © Cambridge University Press 2007

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References

ADAS (2006) Town and Village Greens Report: Market Research Report Stages 1 and 2. Wolverhampton: ADAS UK Ltd.Google Scholar
Barry, B. (1999) ‘Sustainability and Intergenerational Justice’, in Dobson, A. (ed.), Fairness and Futurity. Oxford: Oxford University Press.Google Scholar
Been, V. (1993) ‘What’s Fairness Got to do with it? Environmental Justice and the Siting of Locally Undesirable Land Uses’, Cornell Law Review 78: 1001.Google Scholar
Blomley, N. (1994) Law, Space and the Geographies of Power. New York: Guilford Press.Google Scholar
Blomley, N. (2002) ‘From “What?” to “So What?”: Law and Geography in Retrospect’, in Holder, J. and Harrison, C. (eds.), Law and Geography. Oxford: Oxford University Press.Google Scholar
Blomley, N. (2004) Unsettling the City: Urban Land and the Politics of Property. London: Routledge.Google Scholar
Clarke, A. (2004) ‘Use, Time and Entitlement’, Current Legal Problems 57: 237.CrossRefGoogle Scholar
Cotterrell, R. (1998) ‘Law and Community: A New Relationship?’, Current Legal Problems 51: 369.CrossRefGoogle Scholar
De sousa santos, B. (1995) Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. London: Routledge.Google Scholar
Delaney, D. (1993) ‘Geographies of Judgment: the Doctrine of Changed Conditions and the Politics of Judgment’, Annals of the Association of American Geographers 83(1): 48.Google Scholar
DETR (2001) Countryside and Rights of Way Act 2000, DETR Circular 04/2001. London: Department of the Environment, Transport and the Regions, now Department for Environment, Food and Rural Affairs.Google Scholar
Economides, K. (1996) ‘Law and Geography: New Frontiers’ in Thomas, P. (ed.), Legal Frontiers. Aldershot: Dartmouth.Google Scholar
Editorial (2001) ‘Are Greens Good for You?’, Planning and Environmental Law Bulletin, Sept: 63–4.Google Scholar
Farber, D. A. (1996) ‘Stretching the Margins: the Geographic Nexus in Environmental Law’, Stanford Law Review 48: 1247.Google Scholar
Farber, D. A. (2003) ‘From Here to Eternity: Environmental Law and Future Generations’, University of Illinois Law Review 2: 289.Google Scholar
Gadsden, G. D. (1988) The Law of the Commons. London: Sweet & Maxwell.Google Scholar
Hannum, H. (ed) (1997) People, Land and Community. New Haven, CT: Yale University Press.Google Scholar
Harvey, D. (1997) Justice, Nature and the Geography of Difference. Oxford: Blackwell.Google Scholar
Holder, J. (2004) ‘Overriding Public Interest in Planning and Conservation Law’, Journal of Environmental Law 16: 401.Google Scholar
Holder, J. and Fessas, T. (2008) ‘Emerging Commons’, Social and Legal Studies 18(3) (forthcoming).Google Scholar
House of Commons Select Committee on Environment, Transport and the Regions (2001) Walking in Towns and Cities (Session 2000-01) HC 167-I.Google Scholar
Huffington, J. L. (2003) ‘Fish out of Water: The Public Trust Doctrine in a Constitutional Democracy’, in Issues in Legal Scholarship. Berkeley, CA: Berkeley Electronic Press.Google Scholar
Jackson, N. and Wightman, J. (2002) ‘Spatial Dimensions of Private Law’, in Holder, J. and Harrison, C. (eds.), Law and Geography. Oxford: Oxford University Press.Google Scholar
Klass, A. (2006) ‘Modern Public Trust Principles: Recognizing Rights and Integrating Standards’, Notre Dame Law Review 82: 699.Google Scholar
Kohler, P. (1999) ‘Common Property and Private Trusts’, in Holder, J. and McGillivray, D. (eds.), Locality and Identity: Environmental Issues in Law and Society. Aldershot: Dartmouth.Google Scholar
Lazurus, R. J. (1993) ‘Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection’, Northwestern University Law Review 87: 787.Google Scholar
M’gonigle, M. (2006) ‘Minding Place: Towards a (Rational) Political Ecology of the Sustainable University’, Environment and Planning D: Society and Space 24: 325.Google Scholar
ODPM (2002) Living Places: Cleaner, Safer, Greener. London: Office of the Deputy Prime Minister.Google Scholar
Omar, M. (1998) ‘Examining Property Rights and Investment in Informal Settlements: the Case of Jordan’, Land Economics 69(4): 341.Google Scholar
Partridge, E. (ed.) (1981) Responsibilities to Future Generations. New York: Prometheus Books.Google Scholar
Razzaque, J. (2001) ‘Public Trust in Indian Environmental Cases’, Journal of Environmental Law 13: 221.Google Scholar
Richardson, B. and Wood, S. (eds.) (2006) Environmental Law for Sustainability. Oxford: Hart.Google Scholar
Rodgers, C. P. (1999) ‘Environmental Management of Common Land: Towards a New Legal Framework’, Journal of Environmental Law 11: 232.Google Scholar
Rose, C. (1986) ‘The Comedy of the Commons: Custom, Commerce and Inherently Public Property’, University of Chicago Law Review 53: 711.Google Scholar
Rose, C. (1994) Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership. Boulder, CO: Westview Press.Google Scholar
Rose, C. (1998) ‘The Several Futures of Property: of Cyberspace and Folk Tales, Emission Trades and Ecosystems’, Minnesota Law Review 83: 129.Google Scholar
Rose, C. (2003) ‘Joseph Sax and the Idea of the Public Trust’, in Issues in Legal Scholarship. California: Berkeley Electronic Press.Google Scholar
Royal Commission on Environmental Pollution (2007) The Urban Environment (26th Report, Cm. 7009).Google Scholar
Sale, K. (1997) ‘Mother of All: An Introduction to Bioregionalism’, in Hannum, H. (ed.), People, Land and Community. New Haven, CT: Yale University Press.Google Scholar
Sax, J. (1970) ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’, Michigan Law Review 68: 471.CrossRefGoogle Scholar
Selman, P. and Wragg, A. (1999) ‘Networks of Cooperation and Knowledge in “Wider Countryside” Planning’, Journal of Environmental Planning and Management 42(5): 649.CrossRefGoogle Scholar
Shiva, V. (1989) Staying Alive: Women, Ecology and Development. London: Zed Books.Google Scholar
Shoard, M. (1997) This Land is Our Land. London: Gaia Books.Google Scholar
Short, C. and Winter, M. (1999) ‘The Problem of Common Land: Towards Stakeholder Governance’, Journal of Environmental Planning and Management 42(5): 613.CrossRefGoogle Scholar
Society for Advanced Legal Studies (2002), Planning and Environmental Law Reform Group, New Town and Village Greens: Proposals for Law Reform (SALS).Google Scholar
Stone, C. D. (1996) ‘Locale and Legitimacy in International Environmental Law’, Stanford Law Review 48: 1279.Google Scholar
Theodossopoulos, D. (2000) ‘The Land People Work and the Land the Ecologists Want: Indigenous Land Valorisation in a Greek Island Community Threatened by Conservation Law’, in Abramson, A. and Theodossopoulos, D. (eds.), Land Law and Environment: Mythical Land, Legal Boundaries. London: Pluto Press.Google Scholar
Thomas, N. (2000) ‘The Town or Village Green Revisited’, New Law Journal 155: 1846.Google Scholar
Twining, W. (2006) ‘Law, Justice and Rights: Some Implications of a Global Perspective’, paper given at‘Justice and Jurisprudence’ Conference,Stockholm.Google Scholar
Wightman, J. (1998) ‘Nuisance – the Environmental Tort?: Hunter v. Canary Wharf’ Modern Law Review 61: 870.CrossRefGoogle Scholar
Wightman, J. and McGillivray, D. (1997) ‘Private Rights, Public Interests and the Environment’ in Hayward, T. and O’Neill, J. (eds.), Justice, Property and the Environment. Aldershot: Ashgate.Google Scholar
Wilder, L. (1997) ‘Local Futures? From Denunciation to Revalorization of the Indigenous Other’, in Teubner, G. (ed.), Global Law Without a State. Aldershot: Dartmouth.Google Scholar