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3 Int'l J. L. Context 1 (2007)

handle is hein.journals/injwcext3 and id is 1 raw text is: International Journal of Law in Context, 3,J PP- r-17 (2007) Cambridge University Press DoI: I0.0I7/S74455230700rs12 Printed in the United Kingdom Locality, environment and law: the case of town and village greens Donald McGillivray Senior Lecturer, Kent Law School and Jane Holder Reader in Environmental and European Law, University College London* 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 ofpeople 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 ofland as a town or village green a certain degree oforganisation and selfselection 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 ofshared nature and natural resources, in this case providing aform 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 importantfeatures 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. Introduction The role of law in reinforcing the local and parochial is often overshadowed by the globalising force of current legal practice (mirrored, increasingly, by the work of legal academics), but a strong example of the tendency of law to'localise' social conditions is the law relating to commons. To take one sort of commons,' land, including (increasingly) 'brownfield' sites, glebes, dells and beaches, may fall within the definition of 'town or village green' if it is land on which, for not less than 20 years, a significant * We would like to thank the Editorial Board of Social and Legal Studies for supporting a seminar on Commons at which a version of this paper was given, and Tatiana Flessas, Nick Jackson and Chris Short for their help. Contact for correspondence: d.mcgillivrayakent.ac.uk. I The relationship between town and village greens and commons is complex, with greens not always easily falling within the category of 'commons'. Some greens are subject to rights of common, in which case the

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