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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