The hybrid nature of greens

Greens do not fall easily into existing (public and private) categories of property law. Greens are neither unowned nor ‘public’ land – as with commons more generally, they belonging to someone (although a significant amount have no registered owner). Greens are primarily created by the activities of those within the locality, or neighbourhood within the locality, over time. Their registration carries with it features of an easement – the enjoyment of rights over another’s land. But, as with public rights of way, this is an unconventional type of property right since its main method of creation is by the actions of communities rather than individuals, and the mechanism for registration is by application to a county council under statutory provisions. The registration of land as a green does not transfer property to the community or give it exclusive possession – the land remains in private ownership, whether by a private individual or public body – but the effect is to curtail severely the rights of the landowner so that, in effect, existing activities may continue but little more than this. In a sense, possession of land is shared between the owner and the community, with neither being able to oust the other over their respective pre-existing interests (Oxfordshire County Council v. Oxford City Council Footnote ³): the law relating to greens produces a public right to land, but in a private form.

The hybrid nature of greens also arises from the way in which they come into being. In line with the idea that designation as a green involves a measure of clashing private rights rather than public law control, the instigation of the right to register land is by individual citizens, campaigning groups, or representative bodies such as parish councils.Footnote ⁴ There is invariably a public inquiry, and challenges to the registration of land as a green is made by way of judicial review, both of which suggest a strong public law element in the acquisition of the public right to use greens without the threat of their future development. But the legal test for the registration of greens, requiring a connection between the land and its use by a significant number of the local community, also demonstrates features of property law (we see this combining of public and private law features in the Whitstable beach inquiry – discussed further below – in which the potential frustration of the application to register the beach as a green by the use of the land by ‘outsiders’ showed a veering towards a private property-oriented approach, fostering an idea of exclusive ownership).

The hybrid nature of greens is further revealed by the nature and significance of their boundaries. In English legal culture the boundary is a symbolic and practical marker of the bounds of private property, separating the owner from the non-owner (Blomley, Reference Blomley2004, pp. 3–7). With town and village greens, the boundary is similarly all important, but as a means of determining their legal status as greens, rather than marking their physical limits (the town or village green will invariably make up just one part of the physical space of the locality). The requirement that the land in question has been used for lawful sports or pastimes by the locality or neighbourhood within the locality for not less than 20 years establishes a spatial boundary (combined with a temporal condition) but this is one based on collective use and activity. The law therefore acknowledges the collective nature of town and village greens but, as with other examples drawn from the law relating to commons, this is ‘carefully hedged’ (Blomley, Reference Blomley2004, p. 3) by the language and tools of private property, particularly the need to establish the boundary of the ‘locality’ which forms the subject of the registration. By this, and other ways, it is argued, the ubiquity of private property is maintained (Blomley, Reference Blomley2004, p. 3).

Such a combining of public and private features in common land is not unusual. For example, Blomley finds it difficult to locate communal gardens in urban areas in either the public or private domains – they are at once public spaces, predicated upon localised communities, democratisation and interaction, but also the site of many functions conventionally equated to the private sphere (nurturing, nourishing the land) (Blomley, Reference Blomley2004, p. 9). With greens, recognition of their environmental significance, in particular, makes a more public and planned approach to their use and conservation seem more appropriate, at least when compared to the current approach which is complex, uncertain, and tends to be mediated (and preserved) by legal practitioners to a high degree (as we discuss further below as a matter of ‘legal practice/protest’). The registration of town and village greens might, then, be the subject of public debate about the use of particular pieces of land in a positive sense, rather than arising from the defensive establishment of greens by communities in an attempt to defeat unwanted development. This is to recognise that ‘the decision as to whether or not land is to be a town/village green is a decision about the land use needs of a community. It is – conceptually – a planning decision’, to which the prescriptive acquisition of rights is ‘wholly alien’ (Editorial, PELB, 2001).

Legal practice/protest

Above we considered that town and village greens span formal legal categories and that this hybrid formulation contributes to the complex nature of the law in this area. Three cases on greens have reached the House of Lords in recent yearsFootnote ⁵ suggesting that the residue of uncertainties about attributing land with the status of a green was not dealt with by the amendment and streamlining of the Commons Registration Act 1965 by the Countryside and Rights of Way Act 2000. The legal territory of registering land as a town or village green is now dominated by a small group of legal practitioners who have developed a specialist expertise and, whilst having an interest in the disputes arising in this area, also head up law reform working groups. One such group, consisting mainly of barristers working in the specialist field of town and village greens and other types of commons, reported on the detailed content of regulations to be made under the Countryside and Rights of Way Act 2000 (so that registration of land as a green could not be used to stall development after a ‘reasonable’ amount of time had passed).Footnote ⁶ This making of regulations under the 2000 ActFootnote ⁷ was designed to remedy the problem of proving 20 years’ continued use of the land in cases in which the use of the land is suddenly challenged and local people are excluded, thereby creating a significant interruption in use which is capable of preventing them from showing use up the date of their application to register the land as a town or village green, and making it difficult to bring together in time all the necessary evidence of use over a 20-year period. Although the stated objective of the group’s recommendations was ‘to do procedural justice to the competing interests as far as possible’ (Society for Advanced Legal Studies, 2002, para. 3.5), the overriding concern of the majority of the working group’s members seemed to be to ensure that objections to development in the guise of attempts to register land as a town or village green be ‘flushed out’ at an early stage in the interests of timely and efficient economic development of such land and to enable ‘landowners/developers to deal with and apportion risk on this issue’ (SALS, 2002, paras. 3.6 and 3.7). The main method suggested by the majority of the group (but not taken up in the Commons Act 2006) was a notice provision to trigger action on the part of potentially ‘aggrieved locals’ even before any proposal to develop land comes to light; the effect of an unchallenged notice would be to bar any future application to register land as a new green. The group proposed that the terms of the notice, to be set out in primary or secondary legislation, include a statement that ‘the land described and shown on [a] map is not a town or village green’ and that ‘[t]he owner(s) is/are willing for the time being to permit use of this land for recreation [subject to certain conditions]’ (thereby obviating the possibility of prescriptive use), or, more directly, ‘[T]his is private land. Keep out’ (para. 3.8). The notice would be compulsorily registrable in the Commons Register until it was decided whether the land was registrable as a green. The group recommended that the period within which the notice procedure should take place be no more than three months, which was far tighter than that of two to five years originally flagged up by the government, and a shorter period than, in practice, gathering the information necessary to prove use a green may actually take (ADAS, 2006, p. 58). The context in which these recommendations was made was undeniably pro-development, as shown in the following passage detailing how applications to register land as greens are so often triggered by development proposals. As in other areas, the reference to ‘the public interest’ is weighted heavily in favour of developmental interests (Holder, Reference Holder2004), albeit that these might be public in nature:

This legal territory is also claimed by the other side – protesters – who seek to deploy the law on greens, invariably as a means to protect from development the nature conservation value and ‘traditional’ uses of the land (ADAS, 2006, p. iv).

Development/conservation

The tendency of groups seeking to register land as a town or village green as a way of blocking proposed development has resulted in commons becoming physical sites within which disputes about development and conservation take place. Registration can act as a powerful barrier to development because, although there are some grey areas about the practical effects, it is an offence to encroach onto a green or deposit certain things on greens.Footnote ⁸ This gives local inhabitants a substantive means of preventing development, rather than just procedural rights to comment on development proposals and for these representations to be considered as material in the planning process, as at present. Registration of land as a village green therefore gives local communities the chance to assert substantive rights denied to them by the planning system in England and Wales, particularly given the current, and much-bemoaned, lack of third party rights of appeal against a grant of planning permission.Footnote ⁹

Such disputes about the establishment of new greens are also an effect of the reduction of uncertain protection generally accorded to common land by a legal system driven more generally by the protection of private rights and in particular by the advancing of developmental interests in the planning system. The main difficulty is that the legal definition and protection of common lands (including, in this context, greens) is premised upon rights to take from or use the land, rather than preserving any conservation value held by the commons (Shoard, Reference Shoard1997, p. 337):

A shift in favour of recognising and protecting the conservation value of greens is now taking place. The importance of commons in general as a distinctly environmental (as well as national) reference point has been taken up, even by the House of Lords – in a case about common land it was noted that: ‘what happens on the commons [is] a matter of general public concern. They are the last reserve of uncommitted land in England and Wales. They are an important national resource.’Footnote ¹⁰ Such expressions of concern might be seen as one aspect of a broader recognition of the sweeping privatisation (or enclosure) and ‘cloning’ of public space – shopping malls, high streets and universities (M’Gonigle, Reference M’gonigle2006) and, as a counter to this, the central role of public open spaces such as greens in bringing about an urban renaissance (House of Commons Select Committee on Environment, Transport and the Regions, 2001, especially para. 12; ODPM, 2002) and in contributing to other desired objectives such as improving public health and wellbeing (Royal Commission on Environmental Pollution, 2007). From this perspective, the ‘defensive’, or strategic, use of rights of common (as counsel put it in one case, ‘walking dogs to defeat housebuilding’Footnote ¹¹) may be environmentally beneficial, having the potential to stave off more harmful development, such as the ‘regeneration’ or ‘gentrification’ of stretches of beach,Footnote ¹² or the building of houses on a brownfield site, described as a ‘priceless haven for wildlife’,Footnote ¹³ and provides a good example of environmental protection potentially stemming from the custodial function of private rights (Wightman, Reference Wightman1998, p. 883).

Locality/exclusivity

The ‘local’ nature of town or village greens for the purpose of s. 15 of the Commons Act 2006 accords with a longstanding emphasis in the environmental literature on local and neighbourhood action, as necessarily feeding into, and stimulating, broader grassroots and political protective action. There is in particular an argument that local communities are closer to nature and more knowledgeable about their local environments and are therefore best placed to understand and appreciate the importance of local ecological features and environmental interests. This finds legal expression in principle 22 of the Rio Declaration (‘Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development’Footnote ¹⁴) and permeates the entire purpose and structure of Agenda 21, also a product of the 1992 United Nations Conference in Rio de Janeiro, which sets out a programme for local environmental democracy and action. But a further reason is that ‘nature’ is itself seen as constitutive of local communities and identity. As Harvey writes: ‘[D]ecentralisation and community empowerment, coupled with a certain degree of bioregionalism, is then seen as the only effective solution to an alienated relation to nature and alienation in social relationships’ (Reference Harvey1997, p. 181). Those advocating bioregionalism seek in particular to identify localities with bounded natural areas, based on physical, geographical and biological characteristics, and emphasise local self-sufficiency and co-dependency with natural resources (Sale, Reference Sale and Hannum1997). Such an approach is beginning to have practical effects, for example Natural England (the main landscape and conservation body in England) has mapped the countryside into ‘natural areas’ in an attempt to operate on the basis of their intrinsic ecological qualities and characteristics rather than according to existing administrative land units (Selman and Wragg, Reference Selman and Wragg1999, p. 654).

There is, however, a strong tendency for local knowledge and values to be idealised by the green movement and mainstream political parties alike and for simplistic naturalistic fallacies to be accepted, with sometimes very damaging consequences. Wilder (Reference Wilder and Teubner1997), for example, refers to the post colonial enslavement of ‘indigenous peoples’ because of the ‘respect for nature’ they show in their customs, beliefs, and treatment of the land. A similar story is told by Theodossopoulos (Reference Theodossopoulos, Abramson and Theodossopoulos2000) in the quite different context of indigenous protest against environmental conservation in a Greek island community. Shiva (Reference Shiva1989) draws attention to a related ‘enslavement’ of women, deemed to be ‘closer’ and therefore more responsible for the state of their immediate environment, and the ‘environmental education’ of their children. On a lighter note, we also see localism being used to restrict access to the ‘surfing commons’ in California, and thus governing ‘possession’ of the waves (Blomley, Reference Blomley2004, p. 18). In summary, appeals to locality give an appearance of inclusiveness and commonality, but an element of exclusivity might also be involved, as we discuss further below.

The strong emphasis on locality in law has been consistently advanced by the courts in this area, in particular by their holding that privately owned land may be subject to a custom for the inhabitants of a parish or other locality to enjoy rights to enter the land for recreational purposes (Gadsden, Reference Gadsden1988, ch. 13). Section 15 of the Commons Act 2006 retains this as a ‘locality’ or ‘neighbourhood’ test (that ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged in lawful sports or pastimes as of right’), in the case of certain town and village greens.Footnote ¹⁵ This creates a strong legal relationship between commons and locality in which the status of this form of commons is dependent upon the existence of a ‘community’, or at least those in the ‘locality’, or neighbourhood within a locality, and the long-term use of the land by its inhabitants. This test inevitably requires the courts to engage in a boundary drawing exercise, similar to that conducted in cases concerning customary rights, and which likewise involves questions of exclusion, identity and belonging (Clarke, Reference Clarke2004).

Such an exercise is a long-standing one. Fitch v. Rawling Footnote ¹⁶ established that for customary rights to exist (playing lawful games, sports and pastimes), the beneficiaries must be restricted to a particular local area, usually the parish, rather than the public at large. Similarly, in Edwards v. Jenkins Footnote ¹⁷ a custom claimed for inhabitants of three parishes was considered invalid because these could not be regarded as one district. The courts later adopted a less restrictive concept of locality, recognising that settlements might embrace more than one parish. Edwards v. Jenkins, for example, was disapproved by Lord Denning in New Windsor Corporation v. Mellor Footnote ¹⁸ with Brightman LJ considering in that case that one locality might provide facilities for surrounding localities. This liberalising trend was abruptly halted in R v. Suffolk County Council, ex parte Steed Footnote ¹⁹ in which it was held that the use of land ‘as of right’ meant that there had to be a belief on the part of the local inhabitants in their right not just to use the land, but also a belief that this was confined to them, to the exclusion of all other people.

The effect of this judgment was that virtually every subsequent application to register a green was turned down, at least until the House of Lords revisited this question of exclusive enjoyment of rights in its decision in Sunningwell. This case concerned an application by a parish council to register a glebe as a village green in an attempt to prevent the landowner, the Church of England, from building two ‘executive homes’ upon it. Those arguing for the green sought, successfully, to show that they had enjoyed lawful sports and pastimes – kite flying, dog walking, tobogganing and bramble picking – on the glebe for at least 20 years. The Inspector, following closely the authority in Steed, recommended not registering the glebe as a village green solely because, though witnesses said that they believed that they had a right to use it, they did not say that they believed that such a right was confined to the inhabitants of their village. The Inspector treated a subjective belief in the exclusionary nature of the locality test in s. 22 of the 1965 Act (now s. 15 of the Commons Act 2006) as a prerequisite for the registration of the land as common. However, the House of Lords directed the County Council to register the open space as a village green. Giving the only judgment, Lord Hoffmann considered that to require a belief in the exclusivity of rights would be contrary to the nature of prescriptive rights: a user which is apparently of right cannot be discounted merely because the users were subjectively indifferent as to whether a right existed.

The effect of Sunningwell was to objectify the meaning of ‘locality’, indicating that the higher courts had moved beyond requiring a subjective belief in belonging, in favour of a more pragmatic test of identifying the inhabitants of a particular locality, as well as those persons not included. But, the judgment in Sunningwell left unclear a key issue of the balancing of the use of the land by local inhabitants and others. All that was said by the Lords was that predominant usage by inhabitants of the village would be ‘sufficient’. With the changes to the law under the Countryside and Rights of Way Act 2000, however, that use must be by a ‘significant number’ of the inhabitants of the locality or neighbourhood, a particularly vague phrase which fails to make clear whether this is a standard which relates only to the locality or neighbourhood, or is relative to all use of the land (an issue at stake in the Whitstable Beach Inquiry, discussed below).

The locality condition amounts to a requirement to establish precise geographical and legal boundaries and is clearly central to how law and legal actors act in relation to greens. It particularly suggests a way in which spatial difference is formally recognised in some way by legal rules (Jackson and Wightman, Reference Jackson, Wightman, Holder and Harrison2002), and provides an example of a different approach to the geography of law than the more typical search for power-based spatial specificity of formally general rules (Blomley, Reference Blomley, Holder and Harrison2002; Economides, Reference Economides and Thomas1996). One example of the former approach is, of course, the ‘locality rule’ in private nuisance, under which the same activity may not be held to amount to an amenity nuisance depending on the location of the activity (the classic contrasting of activities in Bermondsey and Belgrave Square in Sturges v. Bridgman Footnote ²⁰). Wightman and McGillivray (Reference Wightman, McGillivray, Hayward and O’Neill1997) consider this rule to be problematic insofar as it is supposed to reflect the courts working with pre-defined boundaries, but might be better seen as reflecting the courts’ general acceptance, or otherwise, of certain kinds of behaviour. Similar findings emerge from Delaney’s analysis of legal decisions about the legality of restrictive covenants in the United States, the covenants being designed to exclude black residents from white neighbourhoods, which necessarily involves the judges in construing urban space, and thereby positions them as active participants in the construction of ethnic spatial segregation (Delaney, Reference Delaney1993). In the case of the registration of town and village greens, the legal concept of locality advanced tends not to fit with the reality of many aspects of life – commuting to work, the decline of the village or corner shop, pub or church, and the centralisation of many facilities such as schools, and health centres, the dispersal of families, and, above all, increased mobility, which underlies many of these trends (SALS, 2002, para. 2.6). Nevertheless, the strength of the legal requirement to establish use of land by local inhabitants involves protesters and legal practitioners engaging in an often artificial and anachronistic construction of locality and community, with sometimes exclusionary elements.

Dilution of claim: Whitstable beach and the ‘down from Londoners’

A number of the inhabitants of Whitstable in Kent were forced to stake out their community or ‘locality’ when they sought to register a stretch of beach as a village green. Their attempt to do so was in response to the perceived risks of ‘enclosure’ of the beach, in the form of its economic development (the likely extension of an existing restaurant on the beach front, and the development and use of beach huts as accommodation for visitors to the restaurant) from its present owners, the entrepreneurial proprietors of the Whitstable Oyster Fishery Company. When trying, in the course of a non-statutory public inquiry, to demonstrate a nexus between local inhabitants and the beach, there was the distinct possibility that their claim would be frustrated by the use of the beach by so-called ‘Down from Londoners’, the ‘outsiders’ in this story. Following the inspector’s recommendations, in 2002 the County Council rejected the application to register the beach as a town or village green under s. 22 of the Commons Registration Act 1965 (now superseded by s. 15 of the Commons Act 2006). What follows is based on our own attendance at the inquiry, and documentation made available at the inquiry and the inspector’s report and recommendations. The proceedings were adversarial, with at times a great deal of animosity expressed between the parties, and were governed by a select group of planning barristers, fully conversant with the complexities of this area of law, and who conducted an, at times, fierce cross-questioning of the applicant’s (Whitstable Preservation Society’s) witnesses.Footnote ²¹

In terms of locality, the central issues at the inquiry were first, ‘is there an identifiable locality or neighbourhood within a locality whose actions found the right to register the beach as a town or village green?’ and second, ‘what is a “significant” number of inhabitants of the locality or neighbourhood within a locality’. On the first issue, the objectors (the current owner and potential developer of the beach) made much of the difficulties of establishing the boundaries of any locality or neighbourhood in relation to the use of the particular stretch of the beach, and of establishing a sufficient nexus between the locality or neighbourhood and the prospective green. The applicant’s use of the ward (the local government boundary) in which the area of beach at issue was located was challenged as arbitrary or convenient. Although an area ‘known to the law’,Footnote ²² when the applicants’ witnesses were invited by the objectors to identify themselves with the ward, they could not establish that the ward was a sufficiently defined locality or neighbourhood. The principal objectors went to great lengths to show that none of the traditional activities that might be associated with a locality or neighbourhood – churches, schools, voluntary associations and so on – took their participants solely from that area. The argument was therefore that the locality or neighbourhood should enjoy some ‘innate identity’ or ‘community’, but that it did not.

The principal judicial authority for either of these tests for establishing a locality is found in Steed: (‘[W]hatever its precise limits, it [the locality] should connote something more than a place or geographical area – rather, a distinct and identifiable community, such as might reasonably lay claim to a town or village green as of right’Footnote ²³). Such an understanding of locality (as well as the newly introduced concept of ‘neighbourhood within a locality’) does not, as noted above, fit with the reality of many aspects of modern life. There is some relaxation of the test in government guidance, in force at the time of the Whitstable inquiry but not referred there, which notes that ‘locality, or neighbourhood within a locality’ does not necessarily have to equate to an administrative area ‘but rather to a suitable area which the land in question might reasonably be expected to serve as a green’ (DETR, 2001, para. 80). This relaxes the ‘known to the law’ test, but appears to maintain a community nexus. An alternative, and at present admittedly unlikely, approach might be to draw upon the public trust doctrine, as a means by which genuinely communal land rights (i.e. those flowing from the (imagined) claims of an abstract ‘public’, rather than a definable ‘locality or neighbourhood within a locality’) might be recognised, albeit in a private law form, as we discuss further below.

Beyond locality

The attempt to register the beach at Whitstable as a town or village green highlighted (in law, before the DETR guidance of 2001, and in practice, even after this) many difficulties, including marking out the boundaries of the locality, and establishing that a sufficient number of inhabitants of the locality or neighbourhood within the locality use this land, as opposed to ‘outsiders’. But a different order of conceptual and practical questions about the registration of common land in this manner is raised by adopting an environmental perspective. Primarily, the legal test for registering land as a town or village green is revealed as narrow, and incapable of capturing broader interests; this being dependent upon the existence and activities of those in a particular space (the inhabitants of a locality, or neighbourhood within a locality) and time (the present, and immediate (20-year) past), creating both spatial and temporal exclusivity. Upon such arguments about the inability of law to encompass a broader range of interests and values rests a large body of work from environmental lawyers and theorists about ‘future generationalism’ (Barry, Reference Barry and Dobson1999; Partridge, Reference Partridge1981; Farber, Reference Farber2003), distributive justice (Lazurus, Reference Lazurus1993), and how to secure through law the demands of ‘sustainable development’ as a prevailing policy of environmental governance, and more generally (Richardson and Wood, Reference Richardson and Wood2006).

In this context, there are several arguments in favour of transcending locality, or stretching the margins of the geographical nexus between land and locality. The first is the changing physical and functional nature of greens themselves. Whereas once these areas were commonly located at the centre of an easily defined conurbation, typically the village, they are increasingly created at the boundary of urban areas, where built up areas do not quite meet and where there is no central open space in which ‘community’ life takes place; examples are the recreation ground in Washington, Tyne and Wear, created using excavated soil from the development of a shopping centre, and which became the subject of dispute in R (Beresford) v. Sunderland County Council Footnote ²⁸ and the Trap Grounds in Oxfordshire County Council v. Oxford City Council.Footnote ²⁹

Socio-legal theorists have equally exposed the restrictive nature of a geographical or spatial conception of locality, looking instead at possibly broader understandings. Cotterrel’s sociological critique of theories of a unity of legal authority and his subsequent examination of legal pluralism, for example, involves him in identifying an expansion in legal and other communities (Cotterrell, Reference Cotterrell1998). This forms part of a much wider project ‘to develop theories of both legal transnationalism in its various, often contradictory forms and legal localization’ (389). In trying to do this, Cotterrell draws upon De Sousa Santos’s depiction of a foci of contemporary aspirations for law as being ‘rights to roots’, or the sense of moral security and belonging in contexts that are personally significant. These contexts, though, are less and less rooted in specific geographical localities (De Sousa Santos, Reference De sousa santos1995, ch. 4, and p. 262, cited by Cotterrell, Reference Cotterrell1998, p. 389). Instead, they are increasingly diverse and abstract, rooted in communities which are removed from a physical locality, and may be conceptualised as ‘webs of understanding’ about the nature of social relations. As Cotterrell sums up (Reference Cotterrell1998, pp. 389–90):

Interestingly, Cotterrell’s comprehensive list of what can make up modern ‘community’ does not include shared environments. This, though, is central to Farber’s thesis of ‘stretching the geographic nexus’. Primarily, Farber questions the geographic connection required to give an individual a legitimate interest in an environmental problem in a given locale, based as it is upon traditional notions of territoriality. He identifies instead a nascent tendency of some legal regimes, and environmental law in particular, to draw upon and recognise ideas of mutual interdependence – within law, and between law and other disciplines. Farber sees that the existence of transboundary communities, and the migration and exponential nature of environmental problems, inevitably creates a drive away from localism and any idea of environmental autarky (Reference Farber1996, p. 1271). Underlying all this, he argues, ‘is the recognition that environmental harms are not purely local, but instead are very much the business of “outsiders”’, remarking: ‘[A]lthough far from dead, localism has lost much of its authority in the environmental sphere’ (pp. 1271–2). Much of this analysis is dependent upon the basic idea of globalism that ‘what happens in one place affects everyone everywhere, and no particular geographic nexus should be required as a basis for legal action’ (p. 1272), although he is equally careful not to deny that, whilst transboundary environmental effects are common, local impacts are usually stronger. Farber concludes that both globalism and localism are fundamentally incomplete, each containing a partial normative vision that deemphasises the values promoted by the other (p. 1273). He therefore proposes an (ambitious) evolutionary legal framework, which would involve courts and tribunals at all levels and in various jurisdictions in delineating the geographic limits and level of environmental intervention. In sum, Farber’s work highlights that environmental discourse raises complex understandings about belonging and responsibility which might be recognised, but are not yet easily expressed, in law.

The idea of a public trust, in which common resources such as water are considered to be held in trust by the state for the use and enjoyment of the general public, rather than private interests, appears to give legal form to some of these arguments in favour of law moving beyond a rigid, geographical, conception of locality and community. Although originally applied to protect navigation routes and fisheries (and therefore particularly applicable to seashores and wet sand beaches), this common law doctrine is now an established part of natural resources law in the United States and other jurisdictions (it has been recognised, for example, by the Indian Supreme Court (Razzaque, Reference Razzaque2001), and has proved capable of expanding public access to land and stalling development (Sax, Reference Sax1970; Rose, Reference Rose1994). The doctrine, described as an easement that members of the public hold in common (Huffington, Reference Huffington2003), encourages a forceful recognition that the public at large, despite its unorganised state, seems to have property-like rights in the land held in trust for it, which may be asserted against the state’s own representatives (Sax, Reference Sax1970, pp. 556–7). In practice, the public trust concept can be used (as the basis of statutes or in the course of litigation) to constrain activities which significantly shift public values into private uses or uses which benefit some limited group, so, for example, a proposal which appears to be little more than a ‘giveaway’ of valuable public facilities to certain private interests would not be permitted unless the nature of the development is truly public (Sax, Reference Sax1970, pp. 538, 540).

Sax’s major contribution (as well as the dramatisation of important issues of environmental governance (Rose, Reference Rose2003)) was to suggest the expansion of the doctrine from its traditional coverage of ‘the public domain below the low-water mark on the margin of the sea and the great lakes, the waters over those lands, and the waters within rivers and streams of any consequence’, to its application ‘in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining or wetland filling on private lands’, in other words, a wide spectrum of resource interests which have the quality of diffuse public uses (Sax, Reference Sax1970, p. 556–7). Such analysis suggests the possibility (now realised) of legal recognition of a broader public interest, belonging, or sense of responsibility, owed to the infinite territory of nature, rather than one arising from primarily local, and community, use.

Although there are no recent examples of public trust arguments having been litigated in an English context in land management and access disputes, since the 1970s the public trust has been recognised in many US states as an important limiting device on the actions not just of the states but, to some degree, also on those who privately own land such as beaches. US academic opinion is sharply divided on the merits of the doctrine as against public regulation, and the degree of power it gives the state courts in determining both its scope and application (Klass, Reference Klass2006, pp. 699–700). Nevertheless, there are examples where the courts have transcended a narrow spatial nexus and prevented barriers to access, e.g. to beaches, imposed on those from outside the immediate locale (Klass, Reference Klass2006, pp. 707–13). The public trust doctrine is not the only mechanism that has been used to do so – constitutional free speech rights have also been argued successfully (Leydon v. Town of Greenwich Footnote ³⁰) – but where it has been accepted it has gone beyond a narrow private-property rights analysis, and applied in the context of the Whitstable case study (which is not without difficulty, as it would require a recognition that the registered owner’s title was held subject to a beneficial interest in the public at large) might provide a means of advancing both the interests of those within and without the immediate locality, recognising that property rights are means to what is socially desired and not ends in themselves (Rose, Reference Rose1986).