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

  • Donald McGillivray (a1) and Jane Holder (a2)

Abstract

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

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References

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