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TOWARDS A TAXONOMY FOR PUBLIC AND COMMON PROPERTY

Published online by Cambridge University Press:  23 April 2019

Christopher Rodgers
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Abstract

This article argues that public property rights should be recognised as a separate category of property interest, different and distinct from private and common property interests and conferring distinctive rights and obligations on both “owners” and members of the public. It develops a taxonomy to differentiate private, public and common property rights. The article concludes that it is a mistake to think in terms of “private property”, “common property” or “public property”. The division and allocation of resource entitlements in land can result in private, common and public property rights subsisting over the same land simultaneously, in different combinations and at different times. The categorisation of property interests in land (as private, common or public) may also shift and change from time to time. The article considers the importance of distinguishing between private, common and public property interests for developing new strategies for environmental governance, and for implementing the effective protection of natural resources.

Keywords

property theorypublic propertycommon propertyresource utilityenvironmental governance
Type
Articles
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The Cambridge Law Journal , Volume 78 , Issue 1 , March 2019 , pp. 124 - 147
Copyright
Copyright © Cambridge Law Journal and Contributors 2019 

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Footnotes

*

Professor of Law, Newcastle University.

I am grateful to Alison Clark, David Grinlinton, Ken Palmer, Ole Pedersen and Ting Xu for comments on earlier drafts of this paper. Any errors or misconceptions that remain are mine alone.

References

1 There is a large literature. See e.g. .Waldron, J., “What Is Private Property?” (1985) 5 O.J.L.S. 313Google Scholar; Harris, J.W., “Private and Non Private Property” (1995) 111 L.Q.R. 421Google Scholar; Honore, A., “Ownership” in Guest, A. (ed.), Oxford Essays in Jurisprudence (Oxford 1961)Google Scholar, ch. V; Harris, J.W., Property and Justice (Oxford 1996)Google Scholar, especially 140ff.; Pennock, J.R. and Chapman, J.W. (eds.), NOMOS XXII: Property (New York 1980)Google Scholar.

2 Wood, M., Nature's Trust: Environmental Law for a New Ecological Age (Cambridge 2014), 308Google Scholar.

3 Cf. Blomley, N., “Enclosure, Common Right and the Property of the Poor” (2008) 17 Social and Legal Studies 311CrossRefGoogle Scholar, at 320

4 For example, Underkuffler, L., “On Property” (1990) 100 Yale L.J. 127CrossRefGoogle Scholar; Singer, J., “No Right to Exclude” (1996) 96 N.W.U.L.R. 1283Google Scholar.

5 See Alexander, G., Singer, E.M. Penalver, J.W. and Underkuffler, L.S., “A Statement of Progressive Property” (2009) 94 Cornell L.R. 743Google Scholar.

6 Freyfogle, for example, draws attention to the replacement of the notion of “secure” property rights with that of “entitlements” that are “interconnected and relative”: Freyfogle, E., “Context and Accommodation in Modern Property Law” (1989) 41 Stan.L.Rev. 1529CrossRefGoogle Scholar, at 1530.

7 Hohfeld, W.N., “Some Fundamental Legal Conceptions as Applied in Legal Reasoning” (1913) 23 Yale L.J. 16CrossRefGoogle Scholar; Penner, J., “The Bundle of Rights Picture of Property” (1996) 43 U.C.L.A.L.Rev. 711Google Scholar.

8 See Gray, K. and Gray, S.F., “The Idea of Property in Land” in Bright, S. and Dewar, K. (eds.), Land Law: Themes and Perspectives (Oxford 1998), 15Google Scholar, at pp. 39ff.

9 See e.g. C.P. Rodgers, “Nature's Place? Property Rights, Property Rules and Environmental Stewardship” [2009] C.L.J. 550.

10 See e.g. Bromley, D.W., Environment and Economy: Property Rights and Public Policy (Oxford 1991)Google Scholar. Also Demsetz, H., “Towards a Theory of Property Rights” [1967] 57 Am.Econ.Rev. 347Google Scholar; Colby, B., “Bargaining over Agricultural Property Rights” (1995) 77 American Journal of Agricultural Economics 1186CrossRefGoogle Scholar.

11 Holder, J. and Flessas, T., “Emerging Commons” (2008) 17 Social and Legal Studies 299CrossRefGoogle Scholar, at 302ff.; Mitchell, J., “What Public Presence? Access, Commons and Property Rights” (2008) 17 Social and Legal Studies 352CrossRefGoogle Scholar.

12 Waldron, “What Is Private Property?”, p. 324; see also Honore, “Ownership”, pp. 107ff.; and J.W. Harris, Property and Justice, especially pp. 140–42.

13 Waldron, “What Is Private Property?”, p. 327.

14 Singer, J., Entitlement: The Paradoxes of Property (Yale University Press, 2000)CrossRefGoogle Scholar, 2, 3.

15 See e.g. Rose, C., Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (Westview Press 1994)Google Scholar; Alexander et al., “A Statement of Progressive Property”; Underkuffler, “On Property”; Singer, “No Right to Exclude”.

16 See e.g. France-Hudson, B., “Surprisingly Social: Private Property and Environmental Management” (2017) 29 J.E.L. 101Google Scholar, at 107 (illustrating this using the examples of the New Zealand Emissions Trading System and quota management system for fish catches).

17 On which see Rodgers, C.P., “Agenda 2000, Land Use and the Environment: Towards a Theory of Environmental Property Rights” in Holder, J. and Harrison, C. (eds.), Law and Geography (Oxford 2003)Google Scholar.

18 As to which, see Scotford, E. and Walsh, R., “The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context” (2013) 76 M.L.R. 1010CrossRefGoogle Scholar; cf. Blandy, S., Bright, S. and Nield, S., “The Dynamics of Enduring Relationships in Land” (2018) 81 M.L.R. 85CrossRefGoogle Scholar.

19 Waldron, “What Is Private Property?”, p. 327.

20 Constituted as a commons registration authority for this purpose: Commons Registration Act 1965, s. 2; Commons Act 2006, s. 4.

21 On this see Winchester, A.J.L. and Straughton, E.A., “Stints and Sustainability: Managing Stock Levels on Common Land in England c 1600–2006” (2010) 58 Agricultural History Review 29Google Scholar.

22 Custom retains an important role in the management of common land, but not in the allocation of property rights per se: see further Rodgers, C.P., “Commons Governance: Legal Pluralism and the Enduring Role of Custom” in Clarke, A. and Xu, T. (eds.), Legal Strategies for the Development and Protection of Communal Property (Oxford 2018)Google Scholar, ch. 2.

23 As to which, see Ostrom, E., Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge 1990), 90CrossRefGoogle Scholar. Ostrom identified eight design principles for successful common resource management. These included the adoption of clearly defined boundaries and use rights, the adoption of collective choice arrangements in which all affected individuals can participate, the monitoring of resource use and the application of graduated sanctions for breach of resource allocation rules. There is now a substantial literature critiquing, refining and developing the design principles. See e.g. T. Dietz, E. Ostrom and P.C. Stern, “The Struggle to Govern the Commons” (2003) 302 Science 1907; Dietz, T., Stonich, N. Dolsak, E. Ostrom, P.C. Stern, S. and Weber, E.U., The Drama of the Commons (Washington, DC 2002)Google Scholar; Ostrom, E., Understanding Institutional Diversity (Princeton, NJ 2005)Google Scholar.

24 See e.g. Page, J. and Brower, A., “The Four Dimensions of Public Property” in Conway, H. and Hickey, R. (eds.), Modern Studies in Property Law, vol. 9 (Oxford 2017)Google Scholar, ch. 16. Page and Brower refer to the “paradox” of public property in land, “a resource critical to our well-being and propriety, yet … sorely under-theorised in the common law … an ill-defined topic into which few legal scholars wade” (ibid., at p. 297).

25 See Singer, Entitlement, pp. 2, 3.

26 But note the spectrum of ownership models for “public” property identified by Page and Brouwer, “The Four Dimensions” – including the “state as owner” model, the “many owners” model and the “unorganised public” as owner (pp. 297ff.).

27 In England, this is Natural England; in Wales, Natural Resources Wales: Natural Environment and Rural Communities Act 2006, ss. 1, 32 as amended; Conservation of Habitats and Species Regulations 2017, SI 2017/1012, reg. 5.

28 See National Parks and Access to the Countryside Act 1949, s. 20. This power also extends to European wildlife sites: Conservation of Habitats and Species Regulations 2017, SI 2017/1012, reg. 32.

29 National Parks and Access to the Countryside Act 1949, ss. 60, 64, Sch. 2. The power to dedicate land by an access agreement only applies to “open country”, i.e. “any area appearing … to consist wholly or predominantly of mountain, moor, heath etc. or foreshore” (s. 59(2)).

30 The distinction is probably attributable to the late classical jurist Marcian: see Buckland, W.W., A Textbook of Roman Law from Augustus to Justinian, 3rd ed., revised by Stein, P. (Cambridge 1963)Google Scholar, 182.

31 See generally ibid., at pp. 182–83; Thomas, J.A.C., Textbook of Roman Law (Oxford 1976), 127–29Google Scholar.

32 Gray, K.J. and Gray, S.F., Elements of Land Law, 5th ed. (Oxford 2009), 1.5.57Google Scholar; see also Gray, K.J. and Gray, S.F., “Private Property and Public Property” in McLean, J. (ed.), Property and the Constitution (Oxford 1999), 11–39Google Scholar.

33 Lucy, W.N.R. and Mitchell, C., “Replacing Private Property: The Case for Stewardship” [1996] C.L.J. 566CrossRefGoogle Scholar; Raff, M., “Environmental Obligations and the Western Liberal Property Concept” (1998) 22 M.U.L.R. 657Google Scholar; Frazier, T.W., “The Green Alternative to Classical Liberal Property Theory” [1995] Vermont L.R. 299Google Scholar; Metzger, M.B., “Private Property and Environment Sanity” [1976] 5 Ecology L.Q. 792Google Scholar; Freyfogle, E.T., “Land Ownership and the Level of Regulation: The Particulars of Owning” (1999) 25 Ecology L.Q. 574Google Scholar; Rodgers, “Nature's Place?”, pp. 550–74.

34 For example, restrictions applied by the common law of nuisance; or by statutory nuisance under Part 2 Environmental Protection Act 1990; or by the requirement for planning permission for “development” under the Town and Country Planning Act 1990.

35 For example, the National Trust, whose management of its property estate is constrained by the objectives and requirements set out in the National Trust Act 1907, the National Trust Act 1937 and the National Trust Act 1971.

36 This is the case for “access land” mapped by public bodies for public recreational access under the Countryside and Rights Act 2000, for example: see note 38 below.

37 But note that in some circumstances this type of grant may constitute the dedication of the field as a Town or Village Green: see note 69 below.

38 See Countryside and Rights of Way Act 2000, s. 1(2) and Sch. 1; and for criticism see Mitchell, “What Public Presence?”.

39 Cf. J. Page, “Towards an Understanding of Public Property” in N. Hopkins (ed.), Modern Studies in Property Law, vol. 7 (Oxford 2013), ch. 10. Page classifies this as “corporeal” public property, i.e. “alienated land held by the state or the Crown, state agencies, or public lands leased to long term private rights-holders” (ibid., at p. 197).

40 G. Hardin, “The Tragedy of the Commons” (1968) 162 Science 1243.

41 See Commons Registration Act 1965, s. 22(1); Commons Act 2006, s. 49 and Sch. 5, para. 7.

42 See e.g. instances drawn from the commons registers for Norfolk (Brancaster) of registered rights held by appropriators living elsewhere: Rodgers, C., Winchester, E. Straughton, A.J.L. and Pieraccini, M., Contested Common Land: Environmental Governance Past and Present (London 2010)Google Scholar, ch. 9, especially pp. 179 ff.

43 Pursuant to Wildlife and Countryside Act 1981, s. 28.

44 Pursuant to Conservation of Habitats and Species Regulations 2017, SI 2017/1012, regs. 12–16.

45 Although important, commons and village greens are not the only land over which public access may be secured. Land can be voluntarily dedicated by the landowner for open air recreation under an access agreement if it is in “open country”, i.e. “any area appearing … to consist wholly or predominantly of mountain, moor, heath etc. or foreshore”: National Parks and Access to the Countryside Act 1949, s. 60, Sch. 2. Or it may be “dedicated access land” that the landowner dedicates under the Countryside & Rights of Way Act 2000, s. 16. Coastal access rights can also be dedicated under the Marine & Coastal Access Act 2009, Part 9.

46 Commons Registration Act 1965, s. 22; Commons Act 2006, s. 61(2).

47 For example, the National Trust, which has an extensive landholding of common land.

48 On the history of common land in English law, see Rodgers et al., Contested Common Land, chs. 1, 2; Winchester, A.J.L., The Harvest of the Hills: Rural Life in Northern England and the Scottish Borders 1400–1700 (Edinburgh 2000)Google Scholar; and Hoskins, W.G. and Stamp, L.D., The Common Lands of England and Wales (London 1963)Google Scholar.

49 For the classification of the various common rights recognised in English law, see Cousins, E., Gadsden on Commons and Greens, 2nd ed. (London 2012)Google Scholar, paras. 2-34 to 2-65. Many established rights are difficult to place within one or more of the recognised categories described here.

50 There are several subcategories of the profit of estover; “house bote” (the right to take timber for repairing houses or as fuel); “plough bote” (to take timber for making or repairing agricultural implements); and “hay bote” (to take timber shrubs or brush to make or repair hedges and fences). See Cousins, Gadsden, para. 2-38.

51 Ibid., at paras. 2-39, 2-41.

52 That is, as not attached to land that they are intended to benefit, i.e. they are not attached to a dominant tenement.

53 Commons Act 2006, s. 9, Sch. 1. There are limited exceptions allowing for the transfer of rights to public bodies such as Natural England, for example. The 2006 Act reversed the decision in Bettinson v Langton [2001] 1 A.C. 27.

54 In England this would be the County Council, or in areas with no county council the District Council or London metropolitan boroughs; In Wales it was the county council or county borough councils: Commons Registration Act 1965, s. 2(1).

55 Commons Registration (General) Regulations 1966, SI 1966/1471, reg. 5; and Commons Registration (objections and Maps) Regulations 1968, SI 1968/989. Two periods for objections were specified: 1 October 1968 to 30 September 1970 in the case of provisional registrations made during the first registration period, and 1 May 1970 to 31 July 1972 for those made in the second registration period.

56 Commons Registration Act 1965, s. 17, as amended by the Courts and Legal Services Act 1990, s. 71 and Sch. 10, para. 26.

57 Commons Registration Act 1965, s. 10.

58 For examples, see Cousins, Gadsden, para. 3.17.

59 See Corpus Christi College v Gloucestershire C.C. [1982] 3 All E.R. 995.

60 See Clarke, A., “Land Titling and Communal Property” in Barr, W. (ed.), Modern Studies in Property Law vol. 8 (Oxford 2015)Google Scholar, 225.

61 That is, “stints”.

62 See Winchester and Straughton, “Stints and Sustainability”, pp. 29–47.

63 See Cousins, Gadsden, paras. 2-69ff.

64 Part 1 of the 2006 Act is being introduced in stages. By virtue of the Commons Registration (England) Regulations 2014, SI 2014/3038, it applies in: Cumbria, North Yorkshire, Devon, Kent, Cornwall, Hertfordshire, Herefordshire, Lancashire (excluding metropolitan districts) and Blackburn with Darwen. It has also been implemented in all other registration authorities in England for certain “corrective” applications to amend the registers (under s. 19(2) and Sch. 2, paras. 6–9 of the 2006 Act). The transitional period for correction of the registers in these areas ran to 14 December 2018.

65 Countryside and Rights of Way Act 2000, s. 2. These are subject to restrictions set out in Sch. 2 of the 2000 Act.

66 See Cousins, Gadsden, paras. 2-03ff.

67 Beckett (Alfred F.) v Lyons [1967] Ch. 449.

68 For an example, see the Birmingham Water Acts 1892, 1896 and 1902. These give the residents of the town of Rhayader the right to fish in the river Elan and other standing waters in the Elan Valley water catchment in central Wales, some of which is also registered common land.

69 Commons Act 2006, s. 15.

70 See Newhaven Properties and Port Ltd. v East Sussex County Council [2013] EWCA Civ 2013 (a tidal portion of a beach, covered by water for part of each day, was held to be in principle registrable as a TVG); R. (Beresford) v Sunderland City Council [2014] 1 A.C. 889 (sports arena maintained by the local authority, with seating etc. provided); R. (Lewis) v Redcar Borough Council [2010] UKSC 11 (golf course over which public also exercised recreational use).

71 Commons Act 2006, s. 15(8), (9).

72 “The law relating to greens produces a public right to land but in private form”: McGillivray, D. and Holder, J., “Locality, Environment and Law: The Case of Town and Village Greens” (2007) 3 Int.J.L.C. 1Google Scholar, at 3.

73 Oxfordshire County Council v Oxford City Council and Robinson [2006] UKHL 25.

74 R. v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 A.C. 335.

75 Clarke, “Land Titling and Communal Property”, p. 227.

76 R. (Oxfordshire and Buckinghamshire Mental Health Foundation Trust) v Oxfordshire County Council and others [2010] EWHC 530 (Admin).

77 For an exploration of the implications of this aspect, see McGillivray and Holder, “Locality, Environment and Law”.

78 Adamson v Paddico (267) Ltd. [2012] EWCA Civ 262.

79 See R. (Lancashire County Council) v Secretary of State for Environment Food and Rural Affairs and Janine Bebbington [2016] EWHC 1238 Admin, especially para. 28. The further issue arose in this case viz. whether the “locality” had to have remained the same geographical unit during the 20 years for which recreational use was claimed to have been exercised, thus leading to the claim for registration. Electoral ward boundaries had changed during this period, but it was held on the facts that in substance the “locality” was unchanged. Also R. (NHS Property Services Ltd.) v Surrey County Council and Timothy Jones [2016] 4 W.L.R. 130.

80 Oxfordshire County Council [2006] UKHL 25.

81 On which, see inter alia Reid, C.T., Nature Conservation Law, 3rd ed. (Edinburgh 2009)Google Scholar; Rodgers, C.P., The Law of Nature Conservation: Property, Environment and the Limits of Law (Oxford 2013)CrossRefGoogle Scholar.

82 Council Directive 92/43/EEC on the Conservation of Habitats and Species, [1992] OJ L 206/7; Directive 2009/147/EC of the European Parliament and the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L 20/7 26.1.2010 (replacing Council Directive 79/409/EC, OJ L 103 25.4.79 p.1).

83 For detailed statistics on SSSIs in England, see further <https://designatedsites.naturalengland.org.uk/ReportConditionSummary.aspx?SiteType=ALL>. For SSSIs in Wales, see further <https://designatedsites.naturalengland.org.uk/ReportConditionSummary.aspx?SiteType=ALL>.

84 Wildlife and Countryside Act 1981, s. 28L; National Planning Policy Framework (DCLG 2012), paras. 113ff.; and revised National Planning Policy Framework (DCLG 2018), especially para. 173, available at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/685289/Draft_revised_National_Planning_Policy_Framework.pdf>.

85 Namely Natural England or (in Wales) Natural Resources Wales: note 27 above.

86 Wildlife and Countryside Act 1981, s. 28(4)(b).

87 1981 Act, s. 28E(1).

88 Namely an agreement under National Parks and Access to the Countryside Act 1949, s. 16, Countryside Act 1968, s. 15, or Natural Environment and Rural Communities Act 2006, s. 7.

89 Conservation of Habitats and Species Regulations 2017, SI 2017/1012, Part 2, regs. 12–16, 23–26.

90 To take just one example, the site notification for the Ingleborough SSSI, a large upland protected area in the Yorkshire Dales, sets out 28 OLDSIs, including a prohibition of cultivation, of any change in livestock numbers or livestock management practices, or the application of pesticides or fertilisers to the land: see <https://designatedsites.naturalengland.org.uk/PDFsForWeb/Consent/1001537.pdf>. The list of prohibited operations in most other notified SSSIs is similar in extent, although the operations listed will depend upon the type of land management practised such as whether arable farming, livestock farming, or other operational use is practised (quarrying for example).

91 This is an example of what Scotford and Walsh have described as the contextualisation and reconstitution of property rights by an administrative regime regulating land use: “the decision-making process surrounding SSSIs involves the determination of land-use rights through administration, which takes account of a variety of interests and overriding legislative considerations and results in a democratic reshaping of property rights”: Scotford and Walsh, “The Symbiosis”, pp. 1027, 1038. For the purposes of the argument pursued here, the key point is that it is only private or common property interests that are reconstituted in this way.

92 For example, as in R. v Secretary of State for the Environment ex parte Royal Society for the Protection of Birds [1997] Q.B. 206; [1996] ECR 1-3805.

93 That is, by the statutory conservation body serving a list of OLDSIs on the owner or occupier of the land in question.

94 Namely in the case of SSSIs under Wildlife and Countryside Act 1981, s. 28, as amended by Countryside and Right of Way Act 2000, Sch. 9; and in the case of a European Site under the Conservation of Habitats and Species Regulations 2017, SI 2017/1012, regs. 23–26.

95 National Trust Act 1937, s. 8.

96 See The Potential Of Conservation Covenants: A Report by Green Balance to the National Trust (National Trust 2008), Appendix 3, p. 51. The remaining 11% were taken to protect land or buildings from anticipated future development or were taken upon the disposal by the trust of alienable land in its ownership. A small number were concluded with former owners gifting land to the trust.

97 Law Commission, Conservation Covenants (Law Comm. 349, 2014).

98 Ibid., at paras. 2.82ff.

99 That is, someone with a freehold interest in the land burdened with the covenant, or someone with a lease of at least seven years’ duration (see ibid., at para. 2.82).

100 This is a similar model to that in Scotland, where only designated conservation bodies can hold the benefit of a conservation covenant: Title Conditions (Scotland) Act 2003, 38.

101 The New Zealand template is reproduced as Appendix G in Law Commission, Conservation Covenants, p. 229.

102 Queen Elizabeth the Second National Trust Act 1977, s. 22(1) (New Zealand).

103 Ibid., at s. 2.

104 Queen Elizabeth II National Trust, Annual Report 2017: Covenant Statistics (Wellington 2018), 26. The average covenant size is 38.5 ha. The largest covenant covers 21,910 ha. of the Coronet peak in Central Otago, available at <https://qeiinationaltrust.org.nz/wp-content/uploads/2018/02/MHL157_QEII_AnnualReport_Final-2017-1.pdf>.

105 Law Commission, Conservation Covenants, para. 3.05.

106 Ibid., at paras. 3.35ff.

107 The wider use of conservation covenants for these purposes is an integral element of the proposed implementation of the UK Government's 25 Year Environment Plan: see DEFRA, A Green Future: Our 25 Year Plan to Improve the Environment (2018), 62, available at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/693158/25-year-environment-plan.pdf>.

108 Queen Elizabeth the Second National Trust Act 1977, s. 22(1) (New Zealand); Law Commission, Conservation Covenants, para. 5.44.

109 Some Queen Elizabeth II National Trust covenants provide for open public access to covenanted land, while the majority provide for permissive access only. For examples of both, and the varied uses to which covenants are put in New Zealand, see the Queen Elizabeth the Second National Trust's 2017 Annual Report, available at <https://qeiinationaltrust.org.nz/wp-content/uploads/2018/02/MHL157_QEII_AnnualReport_Final-2017-1.pdf>.

110 As to which see generally Rose, C.M., “Crystals and Mud in Property Law” (1988) 40 Stan.L.Rev. 577CrossRefGoogle Scholar.

111 On the continuing role of custom in this context, see Rodgers, “Commons Governance”.

112 For an example of the latter, see Dance v Savery [2011] EWCA Civ 1250.

113 This is a phenomenon recognised by Rose, “Crystals and Mud”.

114 Ibid., at pp. 577, 580ff.

115 As e.g. in Dance [2011] EWCA Civ 1250.

116 Cf. Holder and Flessas, “Emerging Commons”, p. 300.

117 On this, see e.g. Blomley, N., “Performing Property: Making the World” (2013) 23 C.J.L.J. 23Google Scholar, at 35.

118 Ibid., at p. 34.

119 Hardin, “The Tragedy of the Commons”.

120 Cf. Marella, M.R., “The Commons as a Legal Concept” (2017) 28 Law & Crit. 61Google Scholar.

121 See A. Clarke, “Creating New Commons: Recognition of Communal Land Rights Within a Private Property Framework” [2006] C.L.P. 319.

122 Commons Act 2006, s. 15.

123 Hardin, “The Tragedy of the Commons”.

124 Clarke, “Creating New Commons”, p. 322.

125 Ibid., at p. 323.

126 On which there is a substantial economics literature. See e.g. Ostrom, Governing the Commons; Ostrom, E., “The Rudiments of a Theory of the Origins, Survival, and Performance of Common-Property Institutions” in Bromley, D.W. (ed.), Making the Common Work: Theory, Practice and Policy (San Francisco 1992), 293Google Scholar; Dietz et al., “The Struggle to Govern the Commons”; T. Dietz et al., The Drama of the Commons.

127 For example, McGillivray and Holder argue for the adoption of a public trust approach in English law to get beyond the narrow public/private property rights analysis of the kind pursued by the courts in the case law on town and village greens in English law: see McGillivray and Holder, “Locality, Environment and Law”, pp. 15–17. And see Page, “Towards an Understanding”, pp. 206ff.

128 See Bosselmann, K., The Principle of Sustainability: Transforming Law and Governance, 2nd ed. (London 2017), 21Google Scholar.