II. Private, Common and Public Property – Problems of Definition

The growth in legislation restricting the ownership privileges of private property in English law has given rise to claims that much land is now “public space”.Footnote ¹¹ This does not mean, however, that all land over which restrictions on ownership privileges have been placed should be viewed as either common or public property. To establish a taxonomy for differentiating and organising different categories of property rule, including those creating what may be truly regarded as “public” property rights, we first need to consider the fundamental legal conception of “property” itself. Waldron describes property as a system for determining access to, and control of, material resources that will usually assign to different people rights in the same resource.Footnote ¹² This article will argue that the ways in which it does so will determine whether elements of resource utility in land can be categorised as having been granted by public, private or common property rights.

In the case of private property, the rules governing access to the land resource are organised around the idea that resources are assigned to and belong to some individual. Each person to whose name that object is assigned decides how that resource is to be used and by whom.Footnote ¹³ This conception of “property” is usually called the “ownership model”: property is about rights over things and the people who have those rights are called “owners”.Footnote ¹⁴ Where common and/or public property rights have been created over land, however, the “owner” will lose the sole right to control access to the resource. Access to the resource is instead vested in several others, or in a group or “community” of others (in the case of common property rights); or rights of access will be vested in the public at large (thereby creating a public property right). This tells us that the land resource may be subjected to a mix of common property rights, private property rights and public property rights. In many cases, therefore, it is not possible to characterise the property relationship simply as one of “private property”, or as one of “common” or “public property”.

The analysis can be deepened if we adopt a “progressive property” perspective of the kind advocated by many modern property theorists.Footnote ¹⁵ If we accept that an inherent value underpinning private property is the recognition of social obligations owed by the property “owner” to the wider community, then obligations as to the way land is to be managed that are imposed by common law (or applied externally by statute) may be seen as aspects of the integral qualities of the private property right itself.Footnote ¹⁶ We are not concerned here, however, with what we might term property-management norms or rules,Footnote ¹⁷ or with the symbiotic relationship between property rights and environmental regulation, by virtue of which it may be claimed that regulatory measures not only vary but also shape property rightsFootnote ¹⁸ – but rather with the primary property rules that allocate elements of resource utility, and whether these can be characterised as creative of either “private”, “public” or “common” property rights. And in this regard, the key normative question is to whom, and how, the law grants the right to allocate and control access to the property resource.

In the case of common property Waldron's analysis suggests that the resource must be held for the use of every member of a group and that allocative decisions are based on what is fair for all.Footnote ¹⁹ This does not, however, capture the essence of some types of property rule in English law that are widely considered to create or support “common” property rights. Take, for example, the law governing common land in England and Wales. Common land, and the common rights exercisable over it, has to be registered on the commons registers maintained by each local authority.Footnote ²⁰ Decisions on the allocation of the land resource (for example grazing rights over a registered common) are not based on what is “fair” to members of the group but are instead based solely on the rights reflected in the common registers. The customary practices on which registrations were originally claimed may have been based in notions of equitable access to the resource.Footnote ²¹ But in the modern context, the right to resource use on common land is determined solely by the commons registers, and not by issues of collective fairness or through a collective allocative process.Footnote ²² It is not, in any event, necessary for allocative decisions made by a group (or a community) holding common property rights to be based on notions of their internal fairness inter se. They may have an internal constitution and make whatever resource allocation decisions they wish. Communities may be dominated by the most powerful amongst the members and run for their benefit, or in a way which perpetuates an unequal hierarchy. Institutional scholars would argue that they would not in this case be efficient resource users – their management of the common resource would, for example, fail to exhibit the widely accepted design principles for successful communal resource use.Footnote ²³ But they would still be using their resources communally and exercising “common” property rights.

We are presented with similar definitional problems when we consider the nature of public property rights. Despite its importance, the nature and legal parameters of “public” property, as a distinct type of property interest, has received scant attention from property theorists in English law.Footnote ²⁴ The term “public property” (or sometimes “crown” property) is often loosely used to describe property collectively owned by the state for the benefit of citizens. In English law it is, however, subject to the same rules of entitlement (“ownership” rules)Footnote ²⁵ as private property – the only difference being that the “owner” is a public body.Footnote ²⁶ In an English context this might, for example, be a government department such as the Ministry of Defence or a local government body. The public are not given access to the land resource owned by a public (or “crown”) body simply by virtue of that fact. But they may be given a legally enforceable right of access to it by statute or by agreement with the “owner”, subject to specific terms and conditions – as for example in the case of nature reserves managed by the statutory conservation bodies,Footnote ²⁷ who can grant public access by the use of their statutory powers to make bye-laws,Footnote ²⁸ or by an access agreement concluded with the local planning authority by the landowner.Footnote ²⁹

The position in English law is very different to that in civil law jurisdictions, where land dedicated to public service use is treated as a distinct category of “public property” which is not alienable, and not subject to the acquisition of private or common user rights by prescription. This has its origins in the Roman law concept of res extra patrimonium – that is, land that could not be in the ownership of an individual. This could take one of two forms: res communes or res publicae.Footnote ³⁰ Res communes comprised things of common enjoyment available to all citizens by virtue of their existence, and that were therefore incapable of private appropriation because their use was an incident of personality – for example air, sea or the seashore. Res publicae, on the other hand, belonged not to humanity as a whole but to the state, and included (for example) public roads, public baths, or flowing rivers.Footnote ³¹ Citizens therefore enjoyed use and access to res publicae as citizens of the state. They were also treated as res extra commercium, in that they could not be bought or sold. By contrast, the feudal origins of English property law dictate that all property – irrespective of whether we may characterise it as “public”, “common” or “private” – must have an “owner”.

III. A Taxonomy for Common and Public Property

Many of these definitional problems can be resolved if we adopt a new taxonomy for identifying – and then recognising the interactions of – private, common and public property rights. Developing a model for characterising common and public property rights requires a nuanced interpretation of the way that access to a resource is defined by property rules. In particular, we need to recognise the multiplicity of, and the differences in the nature and types of, property right that give access to land and to elements of its resource utility.

Scholarship on the resource allocation function of property rights has stressed the role of property as an “allocative mechanism for promoting the efficient or ecologically prudent utilization of resources”,Footnote ³² and the stewardship function that property rights can fulfil and promote.Footnote ³³ To develop a taxonomy differentiating common and public property rights, however, we need to think not only of the role of property rules in allocating resource utility, but also about to whom different elements of resource utility are allocated, and the terms on which that access is granted (including any restrictions that may be placed upon it). The taxonomy suggested here would organise different classes of property right by reference to whom access to elements of resource utility is given and on what terms – they may enjoy access to a resource subject to restrictions, or only for some and no other purposes, and the type of access may differ from case to case. A key consequence of the adoption of this approach would be the recognition that private, common and public property rights can subsist over land separately or in combination at any one time, depending upon the overall distribution of its constituent elements of resource utility.

Applying this taxonomy, the key attributes of private, common and public property rights would be the following:

1. (1) Private property rights: in this case, access to the resource is controlled by the “owner”. This person or those licenced (only) by him/her have access to the resource. It may be necessary, in this context, to distinguish private and “individual” property rights. Private property is defined by reference to whether an “owner” controls access to the resource. The “owner” may be an individual, but may also be a corporate body, a public body, a charity or a group of such persons or bodies. It is, therefore, also important to distinguish between (1) those “owners” who can do whatever they like with their resources subject to general law restrictionsFootnote ³⁴ and to contractually agreed constraints, and (2) not-for-profit “private” owners bound by their constitutions, or by legislation, to use their assets only for designated purposes.Footnote ³⁵ In all these cases, however, the system of property rules supporting the institution of private property is distinguished by its focus on the way in which access to the resource is sanctioned by the “owner” – and not by reference to the identity of those by whom it is exercised. By contrast, in the case of common and public property rights, access to the resource can be sanctioned otherwise than by the “owner”, such as by legislation or by an administrative act by a public body.Footnote ³⁶ Additionally, the property rules supporting the institutions of common and public property are distinguished by their focus not only on the way in which access to the resource is sanctioned, but also by the identity of its recipients, and how they are defined (individually or as a class), as explained below.

2. (2) Common property rights: in this case, access to the resource is shared by a defined category of users. This may be large or small but is distinguished by the fact that some restriction on the identity of potential users is imposed. The property rules defining common property rights are both inclusionary and exclusionary. They will define the category of users (or “appropriators”) to whom a right of access to the resource is granted, and by implication exclude all others. An example might include, for instance, a right granted to the residents of Blackacre village by a private act of Parliament to fish in the river Blueacre. Or a right granted to the residents of Greenacre to use a privately owned field for hosting cricket matches.Footnote ³⁷

3. (3) Public property rights: access to the resource is granted by a property rule that does not limit potential access solely to those permitted by the “owner”, or to the members of a group (however defined). Access to the resource is granted to everyone – although there may be restrictions on what members of the public may do on it, or take from it, and there may be restrictions on the quantity of a resource that may be taken. There may be land-use restrictions, but they are not definitive of the public's entitlement to access some element of the land's resource utility. So, for example, “access land” over which the “right to roam” applies is land over which public property rights have been created in this sense; access for recreational use is granted to all members of the public, albeit subject to restrictions as to what is, and is not, permitted on the access land in question.Footnote ³⁸ Land held by public bodies for the benefit of the citizen is not subject to public property rights in this sense – unless the public are given direct access to the resource, such as for recreational use.Footnote ³⁹ And where access to a resource is granted to everybody without any restriction as to the type or quantity of resource that may be taken or used, then this will characterise it as a “common pool resource”. Where access is granted to everybody, but subject to quantitative restrictions, or restrictions as to the elements of resource utility that may be used, then the property rules in question may also fulfil a stewardship function. But if there are no property rules qualifying the public's land-use entitlement, then the common pool resource will be potentially open to the “tragedy of the commons”, namely its uncontrolled depletion and degradation by overuse.Footnote ⁴⁰

Several further distinctions can be made to complete the taxonomy. Common property must be distinguished from “communal” and “collective” property systems. For property to be “communal” there must be a link between the appropriators of the resource and a “community” – however that community is defined. So, access to, or use of, a resource may be limited to the residents of a village or town (the “community”) or some other geographically defined area. If we apply the taxonomy outlined above, then a resource will be subject to “common” property rights if access to it is granted to a group of individuals, however they be defined. Their social affiliation is not relevant. So, for example, common land will be subject to common property rights in this sense but may not support “communal” property rights – the social affiliation of the commoners entitled to use the common resource is not integral to its definition as common land in English law.Footnote ⁴¹ Indeed, commoners may (and sometimes do) live at great distance from the common over which they have registered common rights.Footnote ⁴²

The utility of the taxonomy outlined above can be tested by: (1) an examination of the property rules used in English law to grant recreational access to the public, principally those applicable to common land and town and village greens and; (2) its application to characterise the property rules used to promote nature conservation, both through regulatory measures (e.g. in protected area such as Sites of Special Scientific InterestFootnote ⁴³ or European wildlife sitesFootnote ⁴⁴) and (second) by the use of conservation covenants with landowners. These are all cases where private property rights have been adjusted in order to protect and promote the “public interest” – to protect natural resources, to protect wildlife or wildlife habitats, or to promote public recreational access to privately owned land. In some cases, this has resulted in the creation of public property rights in the sense described above, while in others it has not.

IV. Testing the Taxonomy: Property Rules for Public Recreational Access

Common land and village greens offer two of the most important examples of land over which public rights of access are secured in English law.Footnote ⁴⁵ They are frequently also subject to a multiplicity of other land-use rights, the character and interactions of which can be explained using the taxonomy outlined above. The Commons Registration Act 1965 introduced registration for both common land and for town and village greens, although registration operates very differently in each case.

Common land comprises land that was formerly the waste of a manor, or over which common rights subsist entitling common appropriators to take the produce of the land.Footnote ⁴⁶ It is not communally owned – rather, it is land owned by individuals, not-for-profit bodiesFootnote ⁴⁷ or public bodies, over which others possess land-use rights, giving them legal access to particular resources. Its use was underpinned until the Commons Registration Act 1965 by a stable framework of property rights, which vested ownership of “waste” in the hands of the lord of the manor, while recognising the user rights of the local community.Footnote ⁴⁸ As owners of the soil, manorial landowners generally retained a wide range of property rights, including mineral and game rights and a right to any residual grazing over and above the use rights of commoners.

English law developed a sophisticated classification of commoners’ land-use rights,Footnote ⁴⁹ the most significant of which is common of pasture – the right to graze livestock on the common. Common of turbary gives the right to take peat or turf for fuel – a right that must in principle always be attached (appurtenant) to a dwelling and limited to taking what is necessary for its heating. Common of estovers gives the right to take wood or other vegetation necessary for the maintenance and use of the dominant tenement to which it attached.Footnote ⁵⁰ Other rights of common include the right of pannage – the right to graze pigs in woodland or forests – and rights to take fish, wild animals and the soil itself.

The rules for the creation and transfer of common rights are focused on the preservation of a link between “common” land and the “community” it is intended to benefit. Most rights are “appurtenant” – that is attached to a nearby land holding or dwelling (the “dominant tenement”) as a subsidiary right. It is generally accepted that neither estovers or turbary rights can be severed from the land they benefit.Footnote ⁵¹ Rights can also be held “in gross”Footnote ⁵² but since 28 June 2005 it has not been possible to sever rights of common from the land to which they are “appurtenant” and thereby convert them into rights in gross.Footnote ⁵³ This is intended to reinforce the “community” focus of common rights.

There is no national register of common land or common rights. The Commons Registration Act 1965 designated local authorities as “commons registration authorities” and requires them to maintain registers of both common land and the common rights subsisting over it.Footnote ⁵⁴ The act provided for a once and for all registration of land and rights before a cut-off date in 1970Footnote ⁵⁵; those claiming to enjoy common rights were invited to register, and if there were objections then a commons commissioner was appointed to resolve the claim and investigate the historical accuracy of the claims made.Footnote ⁵⁶ Once registration became final under the 1965 Act, land was conclusively deemed to be common land.Footnote ⁵⁷ The registration process was seriously deficient.Footnote ⁵⁸ No provision was made for correcting inaccurate registrations, or for rectifying incorrect registrations of land as “common” land, or for reviewing provisional registrations when they became final.Footnote ⁵⁹ Neither was provision made for updating the registers to take account of subsequent changes in landownership or land-use rights – an important oversight given the need for pro-active registration arrangements in communal property systems, where changes in customary land use can frequently occur.Footnote ⁶⁰

Notions of equitable resource distribution that were implicit in the customary origins of common land were also lost in the registration process. For example, the practice of “stinting” on many commons originally required the calculation of the total available grazing resource on the common, and this was then allocated as fixed numbers of livestock grazing rightsFootnote ⁶¹ by agreement between the appropriators.Footnote ⁶² Similarly, on large open upland commons the number of grazing rights was usually fixed by the custom of levancy and couchancy, which entitled an appropriator to put to the common only the number of sheep or cattle that his farm could support during the winter.Footnote ⁶³ This meant that common rights were allocated by reference to the relative size of the farms which exercised grazing rights over each common. These reflexive and customary principles were lost when the commons registration system was introduced. New registers are to be introduced under the Commons Act 2006, but the original registers will remain an important source for ascertaining legal entitlement to common ownership and use.Footnote ⁶⁴

Common land is an important community resource, with substantial economic value to appropriators, and often subject to multiple land-use rights vested simultaneously in different people – the owner of the soil, commoners (appropriators) and members of the public. All registered common land is “access land” giving the public recreational access to the land (the “right to roam”) once it has been mapped by the public authorities.Footnote ⁶⁵ If we recognise the allocation of different elements of resource utility to the landowner, appropriators and the public, we can see that common land simultaneously supports private, common, and public property rights. It supports private property rights – the owner of the soil retains the right to grant leases and other rights to third parties as long as s/he does not, in so doing, interfere with the commoners’ land-use rights. Further, common rights are themselves a form of profit a prendre Footnote ⁶⁶ – a private property right that confers on its owner the right to take part of the land, its natural produce or wild animals (animae ferae) from another person's land.Footnote ⁶⁷ They are also transferable, although for appurtenant rights their transfer presupposes a transfer of the “dominant” land to which they attach.

At the same time common land supports common property rights. The right to take the produce of the land is shared with those holding registered rights of common to graze livestock or to take its natural resources (estovers, turbary, etc.). And because it gives a right to a limited resource, it is likely that the appropriators will have developed customary or agreed norms for sharing the resource; these will define their relationship with other appropriators and with the owner of the common over which the rights are exercised. But it also supports public property rights viz. the statutory right of access over common land granted by the Countryside and Rights of Way Act 2000, which confers an element of resource utility (recreational access) on the public at large.

It is not unusual for local communities to hold additional rights over common land – for example under private acts of Parliament giving the residents of a town or village the right to fish in standing waters or rivers (a right of piscary) or to enjoy extended recreational access to the common.Footnote ⁶⁸ If these rights are vested in a defined group, for example the residents of Blackacre, then they will constitute a species of common property right. This must be distinguished, however, from the resource use rights vested in appropriators with registered common rights over the land. The members of the fluctuating Blackacre community will not be as readily identified, and there will be no exit point for them. Their rights cannot be transferred. If the land is also registered common land, then it will also be subject to “public” property rights viz. the statutory right of open access over common land granted to the public, irrespective of geographical residence restrictions.

Village greens are another important category of community property over which public access rights are recognised. Land can be registered as a town or village green (hereafter “TVG”) if it has been dedicated by an Act of Parliament for the recreation of the inhabitants of a locality; if the inhabitants of a locality have a customary right to indulge in local sports and pastimes; or if it is land on which, for not less than 20 years, a “significant number of the inhabitants of any locality, or any neighbourhood within a locality” have indulged in lawful sports and pastimes.Footnote ⁶⁹ There is no requirement for the land to conform to a specific physical description: it does not have to represent the traditional village “green” and may include, for instance, part of a beach or even land that has been “created” by the deposit or accretion of soil.Footnote ⁷⁰ The Commons Act 2006 introduced a new provision enabling landowners to voluntarily dedicate land as a TVG.Footnote ⁷¹ Unlike the provision for registration of commons, the land itself is registered as a TVG, and not the community rights over it. Importantly, registration of land as a TVG does not engage the “right to roam” under the Countryside and Rights of Way Act 2000: recreational access is limited to members of the local neighbourhood or locality, and registration gives no right of access to the wider public. Once registered as a TVG the land is protected as a common resource – but the legislation makes no provision for the vesting of individual property rights over it in members of the community, or for the registration of specific recreational rights in them.Footnote ⁷²

The recreational rights vested in the community are not defined in the 1965 or 2006 Acts – the land can be used for all “lawful sports and pastimes”, not just those that gave rise to the claim for registration.Footnote ⁷³ This has been widely construed by the courts. In R. v Oxfordshire County Council, ex parte Sunningwell Parish Council Footnote ⁷⁴ it was held that there is no need for a “communal” element to the recreational activity. Lord Hoffman endorsed the view that “lawful sports and pastimes” can include a wide range of recreational activities including dog walking, playing with children, blackberry picking and other forms of informal recreation. It is not necessary for the activity to be communal, and neither must it involve what is usually considered a “sport”. Moreover, the registration of a TVG will confer the same wide rights of lawful recreational use on all members of the community, irrespective of local circumstances or of the historical use of the green. This has been criticised as it arguably distorts the recreational land use that gave rise to the registration in the first place, if it is based on long usage exceeding 20 years.Footnote ⁷⁵ And in the case of a TVG the concept of locality – “connectedness” – is geographically bounded in that only members of the “neighbourhood” within the locality will have recreational access to the green.

Viewed through the prism of the property rights taxonomy suggested above, the registration of a TVG creates common property rights because it confers elements of resource utility (recreational use) on a defined class of recipients, namely the inhabitants of the qualifying “neighbourhood” within a locality.Footnote ⁷⁶ This is an exclusionary property rule, as well as an inclusionary one.Footnote ⁷⁷ Admittedly, the boundaries of the class entitled to use the resource are imprecisely defined and may fluctuate from time to time. Once registered, the right to recreational use only extends to all residents of that locality, or those neighbourhoods, on which registration was based. And its geographic boundaries will also be potentially imprecise. The courts have given “locality” a wide meaning, to include all land “within legally significant boundaries”.Footnote ⁷⁸ A “locality” for these purposes will often be a local government unit and could include, for example, an electoral wardFootnote ⁷⁹ or parish council area.Footnote ⁸⁰ Nevertheless, limiting the use of recreational resources to a legally defined – albeit imprecisely bounded – group of recipients characterises a TVG as creating a common property interest. Despite being a model for creating “community” land-use rights in the widest sense, it is not constitutive of “public” property rights. Whereas, paradoxically perhaps, the registration of common land is, by virtue of the application of open recreational access under the “right to roam” legislation, creative of “public” (as well as common) property rights.

V. Testing the Taxonomy: Property Instruments and Nature Conservation

We can also interrogate the taxonomy by considering those legal instruments used to promote the public interest in nature conservation. This is a broad subject,Footnote ⁸¹ and we will limit our analysis to the property rules supporting two discrete instruments: the property restrictions imposed by regulatory measures to prevent damaging land-use operations in protected areas, and the use of conservation covenants to protect conservation features on privately owned land.

The principal land designations used to implement protected areas policy in English Law are Sites of Special Scientific Interest (“SSSIs”) and European sites designated under the European Union Habitats and Wild Birds Directives.Footnote ⁸² There are currently 4,126 SSSIs in England covering 1,092,780 ha. of land, and over 1,000 in Wales covering 12% of its land area.Footnote ⁸³ The key mechanisms for regulating land use in SSSIs are enhanced consultation and development control for the grant of planning permission for “development” by planning bodiesFootnote ⁸⁴; and the requirement of a statutory consultation with the statutory conservation bodyFootnote ⁸⁵ before a landowner can lawfully carry out operations that have been specified in the site notification as likely to damage the flora, fauna, or other special features of the site (“operations likely to damage the conservation interest” of the site, hereafter “OLDSI”).Footnote ⁸⁶ The conservation body can refuse operational consent indefinitely, subject to a right of appeal to the secretary of state,Footnote ⁸⁷ and an OLDSI can only be carried out with their written consent, or under the terms of a management agreement, management scheme or a management notice.Footnote ⁸⁸ Similar provisions apply to control land-use operations in European sites.Footnote ⁸⁹

The imposition of statutory consultation and operational consent requirements for carrying out OLDSIs has implications for the allocation of property rights in protected sites. If we adopt a resource allocation model of property rights, the overall impact of the mechanism is to transfer property rights from the landowner to the statutory conservation body notifying the SSSI. The site notification does not expropriate property; rather it reallocates key decisions on land use, and thereby on access to the land resource, to the conservation body. The extent of the rights transferred, and the nature of the decisions reallocated to the conservation body, will depend in each case upon the terms of the list of OLDSIs served on the landowner and/or occupiers of the site when the SSSI is notified. In practice, the list of notified OLDSIs in many SSSIs is extensive and will prohibit a wide range of land-use operations without prior consultation and the agreement of the statutory conservation body.Footnote ⁹⁰

Although these requirements restrict the owner's property rights, they do not directly allocate elements of resource utility to members of the public. They impose land-use restrictions on the owner or, in the case of common property, on appropriators, as the case may be. They therefore adjust, shape and potentially restrict private or common property rights – but without necessarily enlarging the rights of the public, and without conferring on them new rights relative to the land resource.Footnote ⁹¹ The only “right” that the public acquire is a referential one – to ensure that the public bodies carry out their statutory duties in the manner specified in the environmental legislation. This might be done by judicial review of the statutory conservation body's decision-making processes – for instance by challenging their refusal to designate an area for protection, or by challenging the terms on which an SSSI notification has been made.Footnote ⁹² It follows that the imposition of land-use restrictions in a protected area such as an SSSI, although introduced to implement public policy, is not constitutive of “public” property rights. The “owner” retains a private property interest, but one in relation to which his/her ownership privileges have been reduced by an administrative actFootnote ⁹³ pursuant to the relevant environmental legislation.Footnote ⁹⁴

Conservation covenants are a very different property instrument, grounded in private law and of an inherently consensual nature. They are therefore a more flexible medium for adjusting property rights and reallocating elements of resource utility.

Their use in England and Wales has been limited. Currently the only body with power to enter into conservation covenants in gross (that is, without owning adjoining land that can benefit from the covenant taken) is The National Trust, which has statutory power to take conservation covenants which impose conditions “restricting the planned use or development [of the land over which they subsist]”.Footnote ⁹⁵ They are enforceable against successors in title of the donor. This power can only be used to take restrictive covenants, neither does it enable the trust to take rights of access to private land. It has been used principally to protect buildings and heritage features from the impacts of development. So, 36,614 ha. of land in England and Wales was covered by National Trust conservation covenants in 2004, with 89% of the covenants taken being protective in purpose, aimed at protecting buildings or land from inappropriate development.Footnote ⁹⁶

The Law Commission has recommended the establishment of a new, and much wider, statutory scheme for conservation covenants in England and Wales.Footnote ⁹⁷ The “core conditions”Footnote ⁹⁸ for a covenant would be the requirement for an agreement between two parties, one of whom would be a landownerFootnote ⁹⁹ and the other a “beneficiary” holding the covenant on behalf of the public – this would be a “responsible body” with responsibility for monitoring and enforcing the obligations in the covenant.Footnote ¹⁰⁰ The covenant could be either positive or restrictive, would bind the land in the hands of successors, and be “perpetual” in effect, binding the land indefinitely.

The Law Commission also supported the introduction of a non-statutory code of practice to assist landowners and responsible bodies in drafting covenants, a recommendation influenced by the successful use of a standard conservation covenant template by the Queen Elizabeth II National Trust in New Zealand.Footnote ¹⁰¹ The legislation on conservation covenants in New Zealand has a wider purview. The Queen Elizabeth II National Trust has wide statutory power to enter into open space covenants where it is satisfied that private land ought to be maintained or established as “open space”.Footnote ¹⁰² “Open space” has a wide meaning that captures any area of land that preserves (or facilitates the preservation of) landscapes of aesthetical, cultural, recreational, scenic, social or scientific interest or value.Footnote ¹⁰³ Thus although the legislation facilitates the promotion of public access to private land, covenants are in practice extensively used in New Zealand to promote nature conservation and to protect important landscape features. It is a very flexible model and is widely used: at 30 June 2017 the Queen Elizabeth II National Trust held 5,720 Open Space covenants.Footnote ¹⁰⁴

If the English Law Commission proposals are adopted they would facilitate the wider use of conservation covenants for the public benefit; to preserve, protect, restore or enhance the land's natural environment (including flora and fauna), its natural resources, or any historical, cultural or built heritage features on the covenanted land.Footnote ¹⁰⁵ The provision of public recreational access to land under a conservation covenant would be optional, to be agreed between the landowner and the responsible body taking the covenant as beneficiary.Footnote ¹⁰⁶ The proposed covenanting model for English law is therefore primarily focused to the conservation of natural resources and the natural and built environment, and could provide an important element in the implementation of future environmental policy in England and Wales.Footnote ¹⁰⁷

The use of conservation covenants is illustrative of the fact that public property interests can be created by the exercise of ownership privileges by the “owner” – for example, if the owner allocates unlimited access to an element of resource utility, such as recreational access, to members of the public. The interest may have perpetual effect, provided the law makes provision for the owner's decision to be irrevocable, as is the case in New Zealand and in the Law Commission's suggested scheme for England and Wales.Footnote ¹⁰⁸ If it does not, and the re-allocation of property rights by the owner is time-limited, or is subsequently revoked, then the land will cease to support a “public” property interest when that element of resource utility reverts to the landowner. It will also support key private property rights throughout, however, in that the owner will retain the power to grant further interests to third parties and to deal with the land – including selling or bequeathing it by will – as long as this does not interfere with the covenant's objectives.

Whether a covenant creates a public property interest will depend on the terms on which it is entered in to by the owner, and this will vary from case to case. If it grants open public access to the covenanted land, then it will create a public property right. If, on the other hand, the covenant qualifies the section of the public entitled to use the land for recreational purposes – it opens land up to recreational use by the members of a village or town, or to specified birdwatching groups, for example – then it will create a “common” property interest within the meaning of the model suggested here. The wide range of individually negotiated conservation covenants held by the Queen Elizabeth II National Trust in New Zealand, for example, includes examples of both.Footnote ¹⁰⁹

VI. The Permeability of Common and Public Property

The examples given above illustrate that private, common and public property rights can (and often will) subsist over the same land simultaneously and in combination. The categorisation of the property interests subsisting in or over land may also shift and change from time to time – for example if a conservation covenant is revoked, varied or released this may change the extent to which it creates a “public” property interest in the land over which it was originally taken.

It is also important to recognise that the boundaries between private, common and public property rights are often permeable. Property interests may shift from one category to another independently of any consensual variation in property rights agreed by the owner and/or independently of any variation effected by statute or by administrative action by public bodies exercising statutory powers. The property rules characterising interests in land as “private”, “common” or “public” are not always established by “bright line” (or hard edged) rules. Sometimes they are established by blurred or “fuzzy” property rules.Footnote ¹¹⁰

Both “fuzzy” and bright line rules are present in the legal framework for public and common property rights, and the boundaries between the two are often blurred. The blurring is usually attributable to the use of “fuzzy” rules for identifying the nature of the resource utility rights that a property rule creates or conveys. This will often be because of the prominent role of custom in determining the precise ambit and content of the property right conveyed or created. In the case of common land, for example, custom often continues to play an important role in its management.Footnote ¹¹¹ It can, in particular, play an important role in filling out the detail of land-use rights held by common appropriators, because the commons register will usually only record a generic type of registered common right vested in an appropriator (e.g. a right to take “estovers” or “turbary”), or it may fail to clearly identify the land over which grazing rights for animals are to be exercised.Footnote ¹¹² If custom and practice regulating the access to the land resource by common appropriators changes from time to time, this may result in their property rights displaying characteristics of “common” property at some times and not others.

The blurring can also sometimes arise from judicial interpretation of the imprecise statutory terminology used to define common property rights. What start as bright line rules of classification may become “fuzzy” as the courts recognise exceptions and qualifications in individual cases when interpreting property rules.Footnote ¹¹³ But its manifestation in this context is specific to the context and mirrors the property rules applied to define common land and other “community” property in English law – many of which are of customary origin. It is perhaps noteworthy that the property rules applicable to common land in English law exhibit the opposite of the normal progression (bright line to fuzzy).Footnote ¹¹⁴ In the case of common land, most property entitlements were initially customary in origin and based in local practice, meaning that they were flexible and subject to adjustment to meet different circumstances. The registration system introduced by the Commons Registration Act 1965 established “bright line” rules for identifying commons entitlements by reference to the commons registers. This had unfortunate consequences, as we have seen – and in some cases still requires the courts to refer to custom to explain and interpret the full extent of the rights secured by registration.Footnote ¹¹⁵ This is a case, therefore, of property rules moving from mud to crystal, and (partially at least) back to mud again.