The Protection of Land, as part of the Environment, for the Future

by

Melanie McGlone

Submitted for the Degree of Doctor of Philosophy

School of LawFaculty of Arts and Social Sciences

University of Surrey

Supervisors: Prof R Malcolm and Dr I Lindsay

© Melanie McGlone 2019

Declaration of Originality

This thesis and the work to which it refers are the results of my own efforts. Any

ideas, data, images or text resulting from the work of others (whether published or

unpublished) are fully identified as such within the work and attributed to their

originator in the text, bibliography or in footnotes. This thesis has not been

submitted in whole or in part for any other academic degree or professional

qualification. I agree that the University has the right to submit my work to the

plagiarism detection service TurnitinUK for originality checks. Whether or not drafts

have been so assessed, the University reserves the right to require an electronic

version of the final document (as submitted) for assessment as above.

Signature:

Date:

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Abstract

The land is a precious resource, vital for humanity’s survival, yet it is under threat

from deforestation, climate change and biodiversity loss. Despite awareness and

acknowledgment of the need to tackle these issues, little truly effective has been

implemented to-date. This research proposes property theory synthesised with

sustainability as the mechanism to affect the change needed to protect the land, as

part of the environment. Two clear limbs form the framework of this research: the

theory of property and sustainability.

Property theory provides an already acknowledged mechanism for change and

private property has been selected to reflect humanity’s resistance to modify its

behaviour (most notably our reluctance to restrict consumption); to facilitate a new

approach using a familiar and recognisable paradigm; and to create a modified

model (described as the Land Model) implemented through legislation

Sustainability then forms the basis of this new restriction, developed through a

critical analysis of sustainability and sustainability indicators (the means of

measuring sustainability), ultimately placing a restriction (described here as the

Sustainability Restriction) on the rate of biodiversity loss, change in land use and

tree cover loss. Strong sustainability, with its emphasis on the land as part of the

environment, underpins the ethical approach taken in this research.

Finally, post-devolution legislation in England and Wales (together Britain, the

geographical area selected for this research) is analysed to propose that Wales

would best support the use of the new paradigm.

This research advocates pro-active change but, acknowledging that good

intentions rarely reach fruition through radical change, a series of incentives are

proposed to encourage reactive change. The proposal is for slow, but steady,

ground-up change: a velvet property revolution.

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Acknowledgments

As my word count is tight, I’ll be brief but I am hugely grateful to all of the following:

My family (Andy, Robert, Lexi, Bear and Belle) for their continued support and

patience through all my ups and downs; to my principal supervisor, Rosalind, who

has shared her knowledge and challenged me to produce exciting and rigorous

work; to Ira, who stepped in late in the day with new perspectives and challenges;

to my peers, Nick and Katrien, who have made this PhD journey so much better; to

the library and other support staff (especially Di) who have helped me along the

way; and finally, to the many other researchers and academics who have

generously offered their time in sharing literature, and giving feedback.

Thank you!

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Table of Contents

Declaration of Originality 2

Abstract 3

Acknowledgments 4

Chapter 1 Introduction1.1 Introduction 9

1.2 Research Design and Methods 21

1.2.1 The Research Question 21

1.2.2 Scope, Definitions and Aims 22

1.2.3 The Theory of Property 27

1.2.4 The Liberal Paradigm, Stewardship and Progressive Property 29

1.2.5 Sustainability 30

1.2.6 Creating the New Sustainability Restriction 31

1.2.7 The Most Effective Model 33

1.2.8 Methods 33

1.2.9 Doctrinal Research 35

1.2.10 Comparative Theoretical Analysis 36

1.2.11 Reductionism 39

1.3 Structure of Thesis 40

1.3.1 The Theoretical Framework – The Theory of Property (Chapter 2) 40

1.3.2 The Theoretical Models of Property (Chapter 3) 40

1.3.3 The Theoretical Framework – Sustainability (Chapter 4) 41

1.3.4 The New Sustainability Restriction (Chapter 5) 42

1.3.5 The Comparison (Chapter 6) 42

1.4 Conclusions 43

Table 1.1 The Sub-Research Questions 21

Chapter 2 Property Theory2.1 Introduction 44

2.2 The Meaning of Property 46

2.2.1 The Commodification of Property 40

2.2.2 Modes of Property Holding 53

2.3 The Bundle of Rights – Ownership 56

2.4 The Major Estates 69

2.5 Connecting the Metaphysical to the Physical 77

2.6 A New Incident – Linking Sustainability to Property in Land 79

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2.7 Conclusions 82

Table 2.1 The Incidents of Ownership 58

Table 2.2 The Top Landowners in Britain 75

Chapter 3 Theories of Property – The Liberal Paradigm, Stewardship and Progressive Property

3.1 Introduction 82

3.2 The Liberal Concept of Property 83

3.2.1 The Historical Context 85

3.2.2 Duties within the Liberal Paradigm 89

3.2.3 Rights within the Liberal Paradigm 91

3.3 The Stewardship Theory 96

3.3.1 The Origins of Stewardship 98

3.3.2 The Steward’s Duties 100

3.3.3 The Rights of the Steward 105

3.3.4 Stewardship in Action 108

3.3.5 An Alternative Duty 111

3.4 Progressive Property Theory 113

3.4.1 A Statement of Progressive Property 114

3.4.2 US Takings 116

3.4.3 Human Flourishing and Virtue 125

3.4.4 Duties within Progressive Property 128

3.4.5 Rights within Progressive Property 130

3.5 Conclusions 131

Chapter 4 Sustainability4.1 Introduction 133

4.2 Background 134

4.3 Defining Sustainability and Sustainable Development 135

4.3.1 Sustainability 136

4.3.2 Sustainable Development 138

4.4 Strong Sustainability, Ethics and Psychology 142

4.4.1 Strong Sustainability as the Approach 142

4.4.2 Ethics 146

4.4.3 Environmental Psychology 149

4.5 Sustainability, beyond the definitional 151

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4.6 Mind the Gap 155

4.7 ‘Shows promise, but must try harder’ 162

4.8 Conclusions 167

Chapter 5 The New Sustainability Restriction5.1 Introduction 169

5.2 Reductionism 170

5.3 Measuring Sustainability 172

5.4 The Bellagio Principles 177

5.5 The New Framework 181

5.5.1 The Environmental Performance Index (‘EPI) 183

5.5.2 Planetary Boundaries 187

5.5.3 The Sustainability Framework 192

5.6 The Structure of the New Sustainability Restriction 195

5.7 Conclusions 200

Table 5.1 A Synoptic Comparison of the Bellagio STAMP and the Bellagio Principles

176

Table 5.2 The Environmental Performance Index 2018 184

Table 5.3 Planetary Boundaries 183

Table 5.4 A Comparison of the Framework Components 193

Table 5.5 The New Sustainability Framework 194

Chapter 6 The Most Effective Model

6.1 Introduction 202

6.2 The Most Effective Jurisdiction 203

6.2.1 English Legislation 208

6.2.2 Welsh Legislation 213

6.3 Testing the Liberal Paradigm, Stewardship and Progressive Property

220

6.3.1 The Right to Exclusive Control 222

6.3.2 The Right to Use, Manage and to Income 225

6.3.3 The Right to Capital 228

6.3.4 The Right to Security 230

6.3.5 The Power of Transmissibility 233

6.3.6 The Incidence of Absence of Term 234

6.3.7 Liability to Execution 235

6.3.8 The Incident of Residuarity 236

6.3.9 The Duty to Prevent Harm 237

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6.3.10 Mapping the Theories 239

6.3.11 Incorporating the Sustainability Restriction 240

6.3.12 The Land Model 243

6.4 Proposals 244

6.4.1 Implementation 246

6.4.2 Financial Incentives 250

6.4.3 Regulating Body 254

6.4.4 Biodiversity Offsetting 255

6.5 Conclusions 258

Table 6.1 Jurisdictional Overview 205

Table 6.2 Influences upon Property Models 214

Table 6.3 Formulating the New Land Model 213

Chapter 77.1 Introduction 260

7.2 How are the theories of property in land utilised to promote/support sustainability?

262

7.3 What are the rights and duties demonstrated by the Liberal paradigm, Stewardship and Progressive Property?

263

7.4 What is the connection between sustainability and the theories of property in land?

264

7.5 Is there a viable measure of Sustainability and, if so, how is it used to develop a sustainability restriction?

265

7.6 Which jurisdiction in Britain is best placed to support the new Land Model, and how do the property theories rank against each other in comparison?

265

7.7 Conclusion - a Velvet Property Revolution 266

Abbreviations and Glossary 268

Appendix 1 269

Bibliography 270

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Chapter 1 – Introduction

1.1 Introduction

Conservation is getting nowhere because it is incompatible with our

Abrahamic concept of land. We abuse land because we regard it as a

commodity belonging to us. When we see land as a community to which we

belong, we may begin to use it with love and respect.1

This research focuses on one of the world’s most precious resources – land2 –

something totally fundamental to the planet’s on-going existence, providing

enjoyment, consumption, investment, exploitation, aesthetic appreciation,3 shelter

and sustenance for humanity, animals and organisms together with a suite of

nature’s services (ecosystem services4) such as water filtration.5 Ghandi said, ‘You

must be the change you wish to see in the world’6 and a new mechanism is now

desperately needed to protect the land from the numerous and wide ranging issues

caused either directly or indirectly by humanity. Our planet is at risk with humanity

the culpable species; change is unquestionably needed.7

Climate change is, ‘beyond dispute’8 and the damage caused by drought, flooding

and the destruction of ecosystems and species is clearly visible from space.9 On-

going loss of wildlife habitat, natural flood control and hurricane protection

1 Aldo Leopold, ‘The Land Ethic’ in Aldo Leopold, A Sand County Almanac; Sketches here and there (OUP 1968) viii.2 Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) 8; see 1.2.3 Kevin Gray and Susan Francis Gray, 'The Idea of Property in Land' in (eds) Susan Bright and John K Dewar, Land Law: Themes and Perspectives (OUP 1998) 20 <http://trin-hosts.trin.cam.ac.uk/fellows/kevingray/870.pdf> accessed 23 July 2016.4 See 2.2.1.5 Gretchen C Daily, ‘Introduction: What are Ecosystem Services’ in G C Daily (ed), Nature’s Services Societal Dependence Natural Ecosystems (Island Press 1997) 3 describes ecosystem services as, ‘the conditions and processes through which natural ecosystem, and the species that make them up, sustain and fulfil human life’; see 2.2.1.6 Attributed to Mahatma Ghandi.7 United Nations Framework Convention on Climate Change, The Paris Agreement (2016) CN 63 2016 Treaties-XXVII 7d and CN 922016 Treaties-XXVII 7d (COP21).8 Johan Rockström et al, ‘A safe operating space for humanity’ Nature 461 (2009) 472, 472. See also Naomi Oreskes, 'Beyond the Ivory Tower: The Scientific Consensus on Climate Change' (2004) 306 Science 1686; COP21.9 NASA <https://climate.nasa.gov/> accessed 29 March 2018.

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exacerbate flood damage and cause biodiversity loss, and fluctuations in climate

are destroying coastal wetland.10 Soil erosion, salinization and waterlogging has

resulted in 30% of the world’s farmland becoming unproductive and much of it

abandoned,11 itself leading to habitat loss, biodiversity loss, erosion of natural

barriers and loss of food production. Almost 10,000 species become extinct every

year12 and whilst some of this is attributable to Darwin’s law of natural selection,13

much of it is not. Nitrogen, critical for all living organisms, is being removed from

the atmosphere beyond safe operating boundaries14 through the use of fertilisers

and fossils fuels. Humanity has and continues to alter the landscape, often with

radical consequences; the Aral Sea has lost 75% of its surface area as a direct

consequence of water diversion to increase cotton production in an arid region of

Uzbekistan.15 Humanity is responsible for deforestation either directly (through

logging and agricultural expansion) or indirectly (through climate variations),

estimated to be occurring at a rate of 460-580 thousand square miles per year16

causing yet further long-term damage to ecosystems, particularly to the high

percentage of animals and plants that live in forests.17

Recognising the need to halt biodiversity loss as long ago as 1992, the UN set

targets for 2010.18 Yet of the 198 parties involved, not one government could claim

to have met their target at a national level19 reinforcing deep rooted concern around 10 Joel Bourne, ‘Louisiana’s Vanishing Wetlands: Going, Going …’ (2000) 289 (5486) Science 1860, 1860 between 1956 and 1990 Louisiana lost 3,460 square kilometers of coastal wetlands.11 David Pimentel and Michael Burgess, ‘Soil Erosion Threatens Food production’ (2013) (3) Agriculture 443, 448. See also David Pimentel et al, ‘Environmental and Economic Costs of Soil Erosion and Conservation Benefits’ (1995) Science, New Series 267(5201) 117.12 WWF <wwf.panda.org/about_our_earth/biodiversity/biodiversity/> accessed 6 April 2018.13 Charles Darwin, On the Origin of the Species (first published 1859).14 Rockström et al, ‘A safe operating space’ (n8) 472-74. 15 Mario Carmelo Cirillo, 'Science and environmental stewardship' (2014) 25(2) Global Bioethics 114, 119.16 WWF <wwf.panda.org/about_our_earth/about_forests/deforestation/> accessed 8 April 2015. See also Sumit Chakravarty et al, 'Deforestation: Causes, Effects and Control Strategies' in Clement A Okia (ed) Global Perspectives on Sustainable Forest Management (2012) <www.intechopen.com/books/global- perspectives-on-sustainable-forest-management/deforestation-causes-effects-and-control-strategies> accessed 4 April 2017.17 WWF <www.worldwildlife.org/habitats/forest-habitat> accessed 6 April 2018 estimated to be as high as 80% of the world’s terrestrial biodiversity.18 UN The Convention on Biological Diversity (1992) 1760 UNTS 69.19 UN Convention on Biodiversity Press Release <www.cbd.int/doc/press/2010/pr-2010-05-10-gbo3-en.pdf> accessed 6 April 2018. See also Reid C T and Nsoh W, 'The Privatisation of Biodiversity? New Approaches to Nature Conservation Law'

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whether humanity – regardless of nationality – is seriously prepared to tackle these

issues.

‘[L]and is essential to our right of survival’20 yet throughout history – and across

countries – land has been (and continues to be) subjected to damage through

conflicts arising from a desire to acquire or control for political, social and/or

economic motives.21 Ancient battles caused significant local environmental damage

to crops and destroyed cattle. Today, the land is devastated through conflicts22

exacerbated by modern technology and warfare such as bombs.23 Even

unexploded ordinances, in particular land mines in some cases dating back to the

American Civil War24 continue to pose worldwide problems. Whilst the human toll is

unquestionably horrific,25 there are also social and economic consequences26 and

specific issues for the land such as loss of biodiversity, soil contamination, habitat

destruction and toxic waste in the form of depleted uranium.27 When the Falkland

Islands were invaded in 1982, Argentine soldiers laid tens of thousands of land

mines to slow British troops. The minefield at Yorke Bay subsequently became a

de facto nature reserve with the penguin population not heavy enough to trigger

the mines, but to comply with the Ottawa Mine Ban Treaty28 the entire beach may

(2011) 23(3) J Environmental L 203, 204 fn 2.20 James P Karp, 'A Private Property Duty of Stewardship: Our Changing Land Ethic' (1992-93) 23 Environmental L 735, 748.21 Bart J Wilson, ‘The Meaning of Property in Things’ (Surrey Centre for Law and Philosophy, May 2017) 4 <https://ssrn.com/abstract=2867734> accessed 18 April 2018. See also Greg Cashman, What Causes War? (2nd edn, Rowman and Littlefield 2014).22 ‘People kill to possess land, as attested by recent events in Kosovo, Israel/Palestine, Rwanda and Zimbabwe,’ Robert Home, 'This land was made for you and me': The global challenge of land management (2007) Papers in Land Management, Anglia Ruskin University, 4.23 Karl Mathiesen, 'What's the environmental impact of modern war?' The Guardian (6 November 2014) <www.theguardian.com/environment/2014/nov/06/whats-the-environmental-impact-of-modern-war?CMP=share_btn_link> accessed 27 December 2017.24 Rae McGrath, Landmines and Unexploded Ordnance: A Resource Book (Pluto Press 2000) 1.25 ibid 29-67; Brian Melican, 'They haven't lost their potency': Allied bombs still threaten Hamburg’ The Guardian (Hamburg, 23 April 2018) <www.theguardian.com/cities/2018/apr/23/allied-bombs-still-threaten-hamburg-ww2?CMP=share_btn_link> accessed 5 October 2018.26 John Vidal, ‘Aftershock: Remnants Of War: The Social And Humanitarian Effects Of Unexploded Ordnance Are Far-Reaching’ The Guardian (6 November 2002).27 Imtiaz Ahmed, ‘Landmines: A Threat to Sustainable Development’ (2104) 19(3) IOSR J of Humanities And Social Science 1, 5.28 The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction 1997.

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have to be dug up, potentially destroying the penguins’ habitat and the

ecosystem.29

Nor is land in limitless supply.30 The world’s population continues to expand

relentlessly31 and a time where demand for land exceeds its supply must be

inevitable – the scenario Malthus32 and Ehrlich33 predicted – unless solutions are

identified and implemented. In 1979 China introduced the One Child Policy having

concluded that if the birth rate seen between 1949-197134 continued, it would

damage both economic and living standards.35 But, whilst this succeeded in

slowing the rate of population growth the policy has now been abandoned with the

government finally acknowledging the disastrous social consequences of gender

imbalance,36 an increasingly elderly population,37 the social impact of missing girls38

and the related problems arising from such a fundamental alteration to the basic

social and economic unit.39 So, if restricting population growth is not the answer we

must look to other solutions that address behaviours; INRA Agrimonde estimate

that 9 billion people can be sustained on the earth in 2050 but, critically, subject to

29 Matthew Teller, ‘The Falklands penguins that would not explode’ BBC News (7 May 2017) <www.bbc.co.uk/news/magazine-39821956> accessed 8 April 2018.30 The landmass of the earth has expanded through land reclamation but there are concerns as to the long-term damage and in some countries this practice has been stopped see Johor Straits, ‘Controversial reclamation project in Johor Straits halted’ Today (24 June 2014) <www.todayonline.com/world/asia/controversial-reclamation-project-johor-straits-halted> accessed 10 October 2014. See also David B Hunter, 'An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources' (1988) 12 Harvard Environmental L Rev 311, 314.31 World population recorded as 7,634,655,780 on 29 July 2018 at 09.57 on the world clock and 48 hours later as 7,635,109,403 <www.worldometers.info/world-population/>. 32 Thomas Robert Malthus, An Essay on the Principle of Population (first published 1798). See also David Begg, Stanley Fischer and Rudgier Dornbusch, Economics (7th edn, McGraw Hill 2003) 427; Tim Jackson, Prosperity Without Growth (Earthscan 2009) 6.33 Paul Ehrlich, The Population Bomb (Ballantine Books 1968). See also Paul R Ehrlich and Anne H Ehrich, ‘The Population Bomb Revisited’ (2009) 1(3) The Electronic J of Sustainable Development 63.34 Yuanting Zhang and Franklin W Goza, 'Who will care for the elderly in China? A review of the problems caused by China's one-child policy and their potential solutions' (2006) 20 J of Aging Studies 151, 152. 35 Therese Hesketh and Zhu Wei Xing, 'The Effect of China's One-Child Family Policy after 25 Years' (2005) 353(11) New England J of Medicine 1171, 1171.36 ibid 1173.37 ibid 1174. See also Zhang and Goza (n34).38 Zhang and Goza (n34) 151-54.39 John Bongaarts and Susan Greenhalgh, ‘An Alternative to the One-Child Policy in China’ (1985) 11(4) Population and Development Review 585, 595.

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certain factors one of which is particularly pertinent to this research – stopping over

consumption by the wealthy.40

Our planet is on the brink of catastrophe so an awareness of the need to restrict

and modify humanity’s behaviour is now critical, something recognised and

addressed from multiple disciplines in different ways, some of which provide

proposals for the means of affecting change. Alarmingly, none of these proposals

(many of which are discussed in more detail below) have yet made a meaningful

impact due to a combination of being fundamentally at odds with humanity’s

reluctance to slow down consumption; not yet sufficiently precise or formed; and/or

confronted with too much political resistance to be implemented effectively.

Recognising the problems facing Earth and representing a call for action, this

research proposes a new paradigm (here called the Land Model) to address the

clear gap in current thinking, a product of a new interdisciplinary approach – the

merging of a property based mechanism with a sustainability based restriction –

placing the land at the forefront. This seeks to affect change in an individual’s

relationship with the land through gradual steps, offering a sustainable future

(discussed in more detail at 4.3 and 4.5). This radical re-conceptualisation of

property and sustainability recognises humanity’s resistance to change and

presents proposals that acknowledge and work within these parameters; a more

pragmatic alternative.

The proposals made to-date have not achieved meaningful traction, and even

acknowledging that those made in this research will take time to reach fruition,

there is a clear argument in favour of implementation. The proposals made thus far

are addressed in greater detail in the applicable sections of this thesis but the key

points are set out below to provide context. Brown Weiss suggests

Intergenerational Equity41 (creating a trust relationship between present and future

generations, discussed at 3.3.3 and 4.6) implemented through international law.

Yet, given the considerable difficulties to-date passing this type of legislation on a

national basis, there must be questions around how realistic it is to expect

successful expansion across international borders. Additionally, and critically, she

40 INRA Agrimonde, Summary Report on Scenarios and Challenges for Feeding the World in 2050 (2009) <www.cirad.fr/en/content/.../7/.../1209Agrimonde_SummaryReport.pdf> accessed on 18 August 2014; see 3.4.41 Used interchangeably with Planetary Trust.

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fails to address how the present generation might be persuaded to curb

consumption.42 Lucy and Mitchell propose replacing the current landholding

paradigm with Stewardship (discussed at 3.3), which would undeniably better

protect the land but they do not make proposals as to how the current private

property paradigm could be replaced.43 Alexander, Peñalver, Singer and

Underkuffler44 (collectively known as ‘the Progressives’ and discussed at 3.4) also

propose a change to the landholding paradigm, seeking to promote virtue ethics

and redistribution of wealth. Admittedly, this theory is in its infancy45 but so far it

fails to tackle implementation and (as with Lucy and Mitchell) how the current

paradigm could be replaced.46 Burdon proposes an ecocentric paradigm through

the medium of private property using a reconfigured bundle of rights.47 At first

glance this appears similar to the proposals made in this research however, whilst

there is common ground, there are also fundamental differences (discussed at

4.4.1). In his conclusion, Burdon articulates that he is providing groundwork48

whereas this research offers practical proposals for implementation. Jackson offers

a potentially more viable option – restraint on economic growth49 (discussed at 4.5)

– yet (as he acknowledges) to achieve this humanity must curb consumption,50

something that has so far proved too great a challenge; and, as a potential policy,

restraint on growth is not something that any political party would be likely to

propose. Raworth’s research aims to provide for every individual’s needs whilst

safeguarding the planet,51 developing a similar approach to Jackson toward

restricting growth yet facing similar implementation issues in curbing consumption.

Rockström et al (discussed at 5.5.2) have proposed Planetary Boundaries to

evidence the planet’s limits visually, indicating where action is most urgently

42 Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (Transnational Publishers Inc 1989); Tim Jackson, Prosperity Without Growth (Earthscan 2009) 50-1; 77; 143; 187.43 William N R Lucy and Catherine Mitchell, 'Replacing Private Property: The Case for Stewardship' (1996) CLJ 566, 567.44 Deriving from their first collective statement Gregory S Alexander, Eduardo M Peñalver, Joseph William Singer and Laura S Underkuffler, 'A Statement of Progressive Property' (2009) 94 Cornell L Rev 743.45 Ezra Rosser, 'The Ambition and Transformative Potential of Progressive Property' (2013) 101(1) California L Rev 107, 110-11.46 See 3.4.1.47 Peter D Burdon, Earth Jurisprudence: Private Property and the Environment (Routledge 2015) 101-34.48 ibid 136.49 Tim Jackson, Prosperity Without Growth (n32); see 4.5.50 ibid 173-84.51 Kate Raworth, Doughnut Economics (Random House 2017) 45.

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needed;52 and more recent research proposes a five-point plan.53 Again, however,

to apply Rockström’s research and halt (or even simply reduce) damage to the

planet, humanity must change its behaviour, which Rockström et al suggest could

be achieved through the 17 Sustainable Development Goals (the ‘17 SDGs’).54

Ross proposes legislation as a mechanism for change55 (discussed at 4.7) yet

whilst in many ways this would be the ideal, there are reasons why this too is

unlikely; governments would surely make it impossibly difficult to implement

wholesale legislation over the more conflicting realities of seeking re-election,

retaining flexibility to react to crises, the fragmentation of government departments,

and public support generally.56 In contrast, potential legislation suggested in this

research could take the form of additions to proposed legislation, such as the draft

Environment (Principles and Governance) Bill, in much the same way as the

proposed Conservation Covenants.57

The issues facing the planet today will not be solved easily. This research presents

a more viable alternative to the proposals referred to above because it recognises

and acknowledges humanity’s resistance to change, and our unwillingness to

modify behaviour particularly evident in efforts to reduce consumption. These

issues are multifaceted with many diverse parties involved often with vested

interests (particularly from political and economic perspectives), further

exacerbated by the perception of property as a commodity (discussed at 2.2.1).58

Over-consumption is unquestionably more prevalent in more developed countries

with recent focus on the excessive production and consumption of plastics, of

which it is estimated that by 2034 we will globally consume 600 million tonnes per

52 Rockström et al, ‘A safe operating space’ (n8) 472 creating boundaries for the planet. See 5.5.2.53 Johan Rockström et al, Transformation is Feasible (Stockholm Resilience Centre, October 2018) <www.stockholmresilience.org/publications/artiklar/2018-10-17-transformation-is-feasible---how-to-achieve-the-sustainable--development-goals-within-planetary-boundaries.html> accessed 31 March 2019.54 ibid; UNGA ‘Transforming our world: the 2030 Agenda for Sustainable Development’ UN Doc A/ Res 70/1 (2015) (17 SDGs).55 Andrea Ross, 'It's Time to Get Serious: Why Legislation Is Needed to Make Sustainable Development a Reality in the UK' (2010) 2 Sustainability 1101. See also 4.8.56 See 4.8.57 DEFRA, Environment Bill summer policy statement: July 2019 <www.gov.uk/government/publications/draft-environment-principles-and-governance-bill-2018/environment-bill-summer-policy-statement-july-2019> accessed 1 September 2019.58 See 4.5.

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year.59 This is partially being addressed in Britain through government proposals to

introduce a bottle-recycling scheme60 but society is still to address sufficiently the

throwaway coffee cup culture.61 Similarly, sugar consumption is also a real concern

with obesity rates in GB placed at a third of children aged between 2 and 15.62

Whilst the 2017 introduction of a sugar tax63 may, in time, change behaviours there

are widespread and legitimate concerns that industry has reacted by reducing

sugar levels in products to just below the relevant limits rather than genuinely

engage with the challenge of changing humanity’s attitude towards consumption.

This reluctance to change, noted by academics such as Jackson,64 is further

evident in the recognition of the limitations of an aggressive legislative agenda.65

Arguably a pro-active overarching legislative agenda is what is needed but (as

discussed above) there is reluctance on the part of governments to seek to impose

their will in a way that would most likely impede their ability to secure re-election;

again, this in contrast to the proposal for legislation discussed in this research (at

6.4). It should be acknowledged that a couple of recent developments might prove

to be the start of a more proactive agenda towards achieving the goal (and notably

derived from outside government). Last summer, a non-profit shareholder

advocacy group elicited a commitment from a group of multinational consumer

goods behemoths (Nestle, Pepsi, Procter & Gamble and Unilever) to reduce plastic

59 Ellen MacArthur Foundation, The New Plastics Economy Rethinking the future of plastics <www.ellenmacarthurfoundation.org/assets/downloads/EllenMacArthurFoundation_TheNewPlasticsEconomy_15-3-16.pdf> accessed 1 April 2018. See also Karel F Mulder, ‘Sustainable Consumption and Production of Plastics? (1998) 58 Technological Forecasting and Social Change 105. 60 Damian Carrington, ‘Bottle and can deposit return scheme gets green light in England’ The Guardian (27 March 2018) <www.theguardian.com/environment/2018/mar/27/bottle-and-can-deposit-return-scheme-gets-green-light-in-england> accessed 1 April 2018. 61 Ashley Cowburn, ‘Government fails to back 'latte levy' on disposable coffee cups and rejects outright ban’ The Independent (9 March 2018) <www.independent.co.uk/news/uk/politics/latte-levy-disposable-coffee-cups-ban-recycling-government-pollution-plastic-a8246246.html> accessed 1 April 2018.62 National Health Service, Health Survey for England 2014 <www.hscic.gov.uk/pubs/hse2014> accessed 1 April 2018.63 The Finance Act 2017; The Soft Drinks Industry Levy Regulations 2017; The Soft Drinks Industry Levy (Enforcement) Regulations 2017. 64 Jackson, Prosperity Without Growth (n32) 171; 173-84; see 4.5.65 See 4.7.

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packaging by 30%66 under the UK Plastics Pact;67 and, later last year, Sky UK

(another corporate) launched Sky Ocean Rescue to bring further awareness to the

widespread abuse of plastics.68 These initiatives provide clear evidence that

society, pressure groups, NGOs etc. can push for change with a specific issue

indicating that the pro-active change sought in this research is feasible. Yet these

initiatives alone will not be sufficient to protect the land, as part of the environment.

To achieve the goal of better protecting the land a two-part change is sought: a

fundamental shift in perception to accept that change is needed (acknowledgment)

followed by a willingness to act accordingly (action). Acknowledgment of this need

for change is clearly evident in current thinking across property theory,69

sustainability literature70 and the UN,71 and is further supported in this research

through environmental ethics (discussed at 4.4.2). The second aspect, the need for

action, is addressed through the creation of the Land Model, a new paradigm to

provide better protection for the land. Yet, whilst the panacea would be a shift to

this new Land Model (incorporating the new Sustainability Restriction72) in terms of

seeking a sustainable solution, it would still require change.

To implement this new model, proposals are outlined for two distinct approaches.

First, the ideal scenario is that voluntary steps are taken to accept the

Sustainability Restriction as a mechanism to restrict humanity’s consumption of the

land, as part of the environment. The second is perhaps a more pragmatic

approach, one that proposes financial incentives being offered to encourage

humanity to accept the Sustainability Restriction. The restriction would take the 66 Emily Chasan, ‘Investors Demand Nestle, Pepsi and Others Cut Plastic Use’ Bloomberg (21 June 2018) <www.bloomberg.com/news/articles/2018-06-21/investors-demand-nestle-pepsi-and-others-cut-plastic-packaging> accessed 24 June 2018; As You Sow <asyousow.org> accessed 24 June 2018.67 WRAP, The UK Plastics Pact <www.wrap.org.uk/content/the-uk-plastics-pact> accessed 25 November 2018.68 Sky UK, Sky Ocean Rescue <https://skyoceanrescue.com/about-sky-ocean-rescue/> accessed 25 November 2018.69 Lucy and Mitchell (n43) 566; Helena Howe, 'Lockean Natural Rights and the Stewardship Model of Property,' (2013) 3 Property L Rev 36, 36-37.70 Tim Jackson, Prosperity without Growth: Economics for a Finite Planet (Earthscan from Routledge 2017) 1-8; Brown Weiss, In Fairness to Future Generations (n42) 5-15; Stephen Morse, Sustainability (CUP 2010) 201-05; Andrea Ross, Sustainable Development Law in the UK From rhetoric to reality? (Earthscan from Routledge 2012) 37-40.71 Report of the World Commission on Environment and Development: Our Common Future (United Nations 1987) annex to document A/42/427; COP21 (n7).72 See 5.6.

17

form of something substantially similar to the proposed Conservation Covenant73 or

a Tree Preservation Order (‘TPO’)74 and is discussed in more detail at 6.4.

However, given humanity’s resistance to such change, a realistic approach is

proposed through an incentive scheme75 that acknowledges good intentions often

take time to reach complete fruition but that, over time, it would bring about the

necessary paradigm shift. Potential financial incentives could also be offered

through combinations of reductions to Stamp Duty (Stamp Duty Land Tax Act

2015); Income Tax Relief for charitable contributions (Finance Act 2010); and/or

lower Council Tax (Local Government Finance Act 1992) and the likely resultant

need for an appropriate regulatory body is discussed at 6.4.3. The submission is

that the action needed is found in the form of a burden of responsibility over the

land – in the form of the new Sustainability Restriction – whereby the radical

necessity of such a restriction on our behaviour can be implemented within

something familiar, something which looks and operates in the same way as the

current land holding paradigm so is more a modification of the existing paradigm.

The focus of this research is land held as private property and, within this, one key

group has been identified – the major estates76 – where, were they willing to accept

the Sustainability Restriction, a significant impact is likely based on volume alone.

The owners and managers of these major estates can be connected further

through environmental psychology, to demographics indicating factors that may

make certain groups of society more willing to take such steps.77

Whilst a legal framework will be needed to implement and manage the restriction

(together with an appropriate regulatory body78), the type of legislation envisaged is

distinct from the overarching legislation proposed by Ross (discussed at 4.7) and, it

is argued, should therefore face less political resistance79 on the grounds of being a

voluntary scheme (either with or without a financial incentive). The proposals are

not significantly dissimilar from others put forward in that the adoption of the

Sustainability Restriction will not provide an immediate response, but it will trigger

73 Law Commission, Conservation Covenants (Law Com No 349, 2014) (Conservation Covenants).74 Town and Country Planning (Tree Preservation) (England) Regulations 2012 (Tree Preservation Regulation).75 See 6.4.76 See 2.4.77 See 1.2.2; 4.4.1.78 ibid.79 See 4.7.

18

change. Whilst a better relationship between humanity and the land clearly cannot

immediately solve all the planet’s problems it can have a materially positive impact

on the land itself, with a consequential impact on humanity evidenced in this

research through, for example, the proposed restriction on tree cover loss.80 Trees

are vital as they provide protection against soil erosion, food and habitat for birds

and other animals, whilst also absorbing carbon dioxide and potentially harmful

gasses from the air, releasing back oxygen in the process.

This research seeks the most effective model of property to protect land, as part of the environment, for the future81 with three clear results. The first (and

perhaps most fundamental) aspect is the creation of the new Sustainability

Restriction which forms part of the Land Model and which, if added to any of the

theories analysed in Chapter 3 (Liberal, Stewardship and Progressive Property),

would have a significantly beneficial impact on the protection of the land; it places a

restriction on humanity’s relationships in respect of the land evidenced here in the

form of a restriction on biodiversity loss, tree cover loss and change of use

(discussed at 5.6). Critically, this is not an absolute prohibition on use but one that

restricts how much may be used (subject to offsetting82) to reflect strong

sustainability. Secondly, it is established that the most effective property model is

actually a modification of the current landholding paradigm (here called the Land

Model), which could bring about the increased level of protection sought for the

land. Finally, it will be shown that the most effective jurisdiction to support the new

Land Model in the future is Wales, based on a political analysis of post-devolution

legislation in Chapter 6.

The research begins in Chapter 2 using property theory as a mechanism for

change,83 specifically using the private property paradigm to look to seek change

from within an existing, known paradigm. It is argued that as well as Honoré’s

Incidents of Ownership providing a descriptive analysis of private ownership, they

can also be used to map the three models of private property through a rights

based approach, thereby providing a series of points for comparison more than

simply rights and duties alone.84 In turn, this can form the basis of the test criteria

80 See 5.6.81 See 1.2.1.82 See 6.4.4.83 Lee Ann Fennell, 'Ostrom's Law: Property Rights in the Commons' (2011) 5 Intl J of the Commons 1, 17. 84 See1.2.10.

19

developed in Chapter 6 for the comparative analysis of the three theories of

property selected in Chapter 3 as being representative of Western Common Law

perspectives85 (Liberal, Stewardship and Progressive Property). Scholarship in

relation to Stewardship and Progressive Property proposes that both of these

theories could exist with real world application within the sphere of private

property,86 the primary focus of this research.87 However, there are significant gaps

in the literature and tensions between perspectives, possibly as a consequence of

a difference in approach between the temporal and ethical.88 This research will

map the contours of these three theories (to the extent they exist) and take forward

existing research to hypothesise the missing aspects of Stewardship and

Progressive Property. The use of Honoré’s Incidents of Ownership as a means of

mapping affords the opportunity to consider what these two theories could look like

within a private property paradigm, and this will subsequently be developed to

consider what Stewardship and Progressive Property will look like once the

Sustainability Restriction has been imported into all three theories (at 6.3). The

new restriction takes the form of the newly created Sustainability Restriction

(discussed in Chapter 5) to be incorporated into the test criteria. This creates the

new Land Model through which the Sustainability Restriction ultimately places a

restriction on the amount of biodiversity loss, change in land use and tree cover

loss on the land89 to provide better protection for the land.

Sustainability (defined as, ‘a duty to protect and restore the integrity of the earth’s

ecological systems’90) has been selected as the second limb of the theoretical

framework for this research for several reasons. First, for its ability to provide an

encompassing agenda as shown by the UN framework with the 17 SDGs and

where competing needs such as gender equality are balanced with issues such as

life on land and climate action.91 This enables detailed analysis of a specific

problem whilst retaining awareness that land is not an isolated issue but one that

sits in the context of the environment. Secondly (and more critically), sustainability

85 See 3.1.86 Emily Barritt, 'Conceptualising Stewardship in Environmental Law' (2014) 26 J of Environmental L 1 2-3; 5 in relation to Stewardship; Alexander, Peñalver, Singer and Underkuffler (n44) 743 in relation to Progressive Property.87 See 1.2.2.88 Barritt (n86) 6.89 See 5.6.90 Ross, Sustainable Development Law (n70) 292; see 4.3.1.91 17 SDGs (n54)

20

informs and provides the ethical support to the strong sustainability approach92

taken in this research, placing emphasis on land as part of the environment.

As discussed in Chapter 4, ethics challenge our values and therefore the right thing

to do; essentially they are the moral principles that govern and inform our

behaviour. The land, as part of the environment, is the focus of this research and

environmental ethics (in particular Leopold’s Land Ethic93 discussed at 4.4.2)

provides an anchor for much of the sustainability literature that is similarly reflected

in the strong ethical concerns evident in much of the literature around the three

theories of property. This mutual empathy supports the concept of integrating the

two theoretical limbs. Environmental ethics therefore underpin the calls for change

(acknowledgment) and for a pro-active response (action) expressed throughout

this research which proposes a synthesised property and sustainability based

solution for the dilemma facing humanity: first, by convincing humanity to accept

that such a change is necessary, evidenced here through literature such as Lucy

and Mitchell,94 Burdon,95 Brown Weiss,96 Jackson,97 Rockström,98 Ross99 and

through the various UN Reports ranging from Brundtland100 to the Paris Agreement

(‘COP21’);101 and secondly, convincing humanity to act (here drawing on proposals

for incentives in relation to Stamp Duty, Income Tax, and/or Council Tax). This

research challenges the rights of those holding private property, as well as

humanity’s on-going obligations towards the planet. 102

1.2 Research Design and Methods

Research design is the overall strategy to integrate component elements in a

coherent and logical way, to address the research problem most effectively. In this

section the primary research and sub-research questions will be identified and the

methodology behind how these are addressed will be discussed.92 See 4.4.93 Leopold (n1).94 Lucy and Mitchell (n43).95 Peter Burdon, Earth Jurisprudence (n47).96 Brown Weiss, In Fairness to Future Generations (n42).97 Jackson, Prosperity Without Growth (n32).98 Rockström et al, ‘A safe operating space’ (n8).99 Ross, Sustainable Development Law (n70)100 Report of the World Commission on Environment and Development: Our Common Future (United Nations 1987) annex to document A/42/427 (Brundtland Report).101 COP21 (n7).102 Leopold (n1).

21

1.2.1 The Research Question

Table 1.1 The Sub-Research Questions

Chapter 2 how can the theories of property in land be utilised to

promote/support sustainability?

Chapter 3 what are the rights and duties demonstrated by the three selected

theories of property?

Chapter 4 what is the connection between sustainability and the theories of

property in land?

Chapter 5 is there a viable measure of sustainability and, if so, how can it be

used to develop a sustainability restriction?

Chapter 6 which jurisdiction in Britain is best placed to support the new Land

Model and, how do the property theories rank against each other

in comparison?

The primary research question is: What is the most effective model of property to protect land, as part of the environment, for the future? This will be

answered in component elements through addressing the sub-research questions

outlined in Table 1.1 and explored fully in sections 1.2.3 to 1.2.7; concluding that

the ‘most effective model of property’ is a new model (the Land Model) formed

from elements of three existing theories – Liberal, Stewardship and Progressive

Property – and the jurisdiction best placed to support the Land Model in the future

is Wales.

Before addressing each of these questions in more detail, some overarching points

that set the scope of this research are addressed below.

1.2.2 Scope, Definitions and Aims

This section details the scope of this research, addresses the aims, and outlines

some of the key definitions adopted. Humanity’s resistance to change (most

notably the resistance to reduce consumption) defines the scope of this research,

for which a solution within the current framework of private property is proposed.

Accordingly, the primary focus is on land held as Private Property (being the rights

22

held by the legal person(s) in respect of the land103) albeit acknowledging that the

Crown is the ultimate holder of land.104 The closest to owning land in England and

Wales (‘Britain’) is fee simple105 and the concept behind this research is to affect

change through a reimagining of the theoretical property paradigm, with a primary

focus on land held as fee simple in England and Wales.106 This represents a

sizable portion of the land in Britain107 and, consequently, an acceptance of a new

vision of humanity’s relationship with the land would have a significant beneficial

impact. Taking this further, it is argued that one key group of landowners (within

private property) could be targeted for implementation of the Sustainability

Restriction, the major estates (discussed in Chapter 2108), on the grounds that were

they to be persuaded to implement the proposals (again, either voluntarily or in

response to financial incentives),109 it would impact a significant quantity of Britain’s

land given that over 4.6 million acres (nearly 12% of the landmass of the Britain) is

in the hands of just 20 landowners.110 This further draws on environmental

psychology (at 4.4.3) in which it is evidenced that demographics indicate sections

of society most likely to be willing (either pro-actively and/or in response to the

financial incentives) to accept the Sustainability Restriction; the most likely

segment would be women who have been in higher education for a number of

years and this will be developed further at 6.5.2. Furthermore, with its high profile,

if the National Trust (for example) were to accept the Sustainability Restriction, it is

more likely that others would follow.

Clearly defined boundaries are critical111 and the geographical parameter of Britain

– England and Wales – has been selected as a direct consequence of the political

evolution of this island. Ireland has been excluded for three reasons: first, it

separated into the Republic of Ireland (leaving the UK in 1949112) and Northern 103 Alison Clarke and Paul Kohler, Property Law Commentary and Materials (CUP 2009) 77.104 See 2.5; 3.3.5.105 Law of Property Act 1925 (LPA), s1(1)(a) in England and Wales.106 LPA, s1(1)(a). 107 HM Land Registry <www.gov.uk/government/organisations/land-registry/about>accessed 30 March 2019, 86% of the land mass in England and Wales is Registered.108 See 2.5.109 See 4.4.3.110 Guy Shrubsole, Who Owns England? (William Collins 2019) 297-308; Appendix 1. See also Kevin Cahill, Who Owns Britain (Canongate 2001) 18.111 Paul Pennings, Hans Keman and Jan Kleinnijenhuis, Doing Research in Political Science (2nd edn, Sage Publications 2006) 5; Robert K Yin, Case Study Research Design and Methods (4th edn, Sage Publications 2009) 9.112 Republic of Ireland Act 1948.

23

Ireland; second, unlike Scotland and Wales, Ireland retained its own parliament

until the 1920s; and third, the physical boundary of the Irish Sea. Scotland has

been excluded on the grounds that under the Acts of Union 1707,113 when Scotland

came together with England and Wales to form Great Britain, Scotland retained its

own legal system; a mixed common law and civil law country. A conclusion is that

the most effective model (the Land Model) could also have application to land held

as private property in the Republic of Ireland and Northern Ireland.

As set out above, the focus of this research is Land held subject to private property

in Britain with a focus on major estates, selected primarily due to the sheer amount

of land held this way114 that could be better protected should the owners be

persuaded to adopt the new Land Model or the Sustainability Restriction.

Furthermore, focusing on private property taps into humanity’s reluctance to

change115 seeking a solution from within an existing structure but with greater

potential application. Land – it should be acknowledged – is more than just the soil

under our feet and will be defined using Gray and Gray’s five dimensions: physical

land, which includes physical boundaries; land created or diminished by alluvion or

diluvion (including the statutory definition of land);116 physical land from the ground

to airspace;117 temporal (which encompasses the estates in land); and equitable

(including the distinction between legal and equitable rights).118 Water (covering

over 70% of the planet’s surface area) has its own rules119 and is excluded from

113 The Union with Scotland Act 1706 and the Union with England Act passed in 1707.114 Cahill (n110) 18. HM Land Registry <www.gov.uk/government/organisations/land-registry/about>accessed 30 March 2019, 86% of the land mass in England and Wales is Registered.115 See 4.5; 17 SDGs (n54).116 LPA, s205(1)(ix). Aspects of this have been eroded by subsequent case law such Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479.117 Cuius est solum …. (whoever owns the soil, it is theirs up to heaven and down to hell).118 Gray and Gray, Elements of Land Law (n2) 8.119 Water is beyond the scope of this thesis. See Donald McGillivray, 'Water rights and environmental damage: an enquiry into stewardship in the context of abstraction licensing reform in England and Wales' (2013) Environmental L Rev 205; Bettina Lange and Mark Shepheard, 'Changing Conceptions of Rights to Water? - An Eco-Socio-Legal Perspective' (2014) 26 J Environmental L 215; Alison Clarke and Rosalind Malcolm, ‘The Role of Property in Water Regulation: Locating Communal and Regulatory Property Rights on the Property Rights Spectrum’ in Christine Godt (ed), Regulatory Property Rights: The Transforming Notion of Property in Transnational Business Regulation (Brill Nijhoff 2016) 121; Rosalind Malcolm and Alison Clarke, ‘Water: A Common Treasury' in Ting Xu and Alison Clarke (eds) Legal Strategies for the Development and Protection of Communal

24

this research because it does not provide humanity’s dominant choice of shelter

and food source, albeit the continual technological advances being made should

be recognised.120

In England and Wales the predominant mode of land ownership is through the fee

simple absolute in possession and term of years absolute,121 registered at HM Land

Registry in England and Wales. The subject matter of this research is Private

Property, the physical land (defined above), together with any building or structure,

privately owned by private individual(s), partnership, limited company (limited

liability or public limited) or form of trust, creating property rights held in respect of

the land. Yet, it is humanity’s relationship with each other that defines how the land

is used and treated; property provides the framework, as Clarke and Kohler point

out, for this relationship.122 This is distinct to other modes of property holding which

will be outlined here and addressed further in Chapter 2.123

There are two pertinent elements in this research: first, the use of property as the

relationship framework to implement the proposed change; and second, the land

itself where the purpose is the proposal of a modified property paradigm which

together with the new Sustainability Restriction forms the new Land Model. It will

be argued that the results of this research could also have potential application to

land held as Commons or Common Land which is owned by someone, but used by

others in specific ways124 or where no single person is in a position of privilege over

a resource125 and which can also be the subject of private property (or state owned)

and includes all types of landscape and habitat. This is based on the requirement

(in Britain) that only a legal entity can own land,126 the potential application of this

being based on the concept of estates in land127 that facilitate a layering of rights

Property, Proceedings of the British Academy (OUP 2018).120 Rich McEachran, ‘Under the sea: the underwater farms growing basil, strawberries and lettuce’ The Guardian (13 August 2015) <www.theguardian.com/sustainable-business/2015/aug/13/food-growing-underwater-sea-pods-nemos-garden-italy> accessed 22 October 2017.121 LPA, s1(1)(a) and (b). See also Law Commission, Leasehold enfranchisement: A summary of proposed solutions for leaseholders of houses 2018 (Consultation Paper No 238, 2018).122 Clarke and Kohler (n103) 3.123 See 2.2.2.124 Edward Cousins and Richard Honey (eds) Gadsden on Commons and Greens (2nd ed, Sweet & Maxwell 2012).125 Jeremy Waldron, The Right to Private Property (OUP 1988) 41.126 Alison Clarke, 'Creating New Commons: Recognition of Communal Land Rights within a Private Property framework' CLP (2006) 59 (1) 319, 348.127 LPA, s1(1)(a) and (b) including the Scottish equivalent.

25

and interests over one piece of land. To illustrate, land held by the Albury Estate

(part of the Duke of Northumberland’s landholding)128 is held as private property but

part of the estate (Albury Downs) is also registered as Common Land;129 hence

there are two distinct rights and interests over the same land. Clarke suggests

Commons can be broken down into three categories:130 first, No Property where

the world is free to use a resource but no person has a right to do so131 (such as

leaves falling from a tree132); second, Open Access Common Property, where

everyone in the world is deemed a part of the community, with a right to use the

resource (such as roads and footpaths over which there are public rights of way);133

and third, Limited Access Communal Property where access to a resource is

restricted to those who form part of that community134 (such as living in a specific

block of flats or membership of a club). Another type of property holding to be

considered is Anticommons Property (the mirror image of open access common

property) where everyone has a right to exclude, but no positive right to use.135 An

illustration of this was Moscow post-communism, where many of the shops stood

empty while street kiosks thrived because of the multiple state and quasi-state

organisations that had become stakeholders with competing interests following

attempts to decentralise land ownership,136 creating layers of rights over the retail

space that stifled its use. In contrast to private property is Public Property where

ownership of the land vests with a group such as a community, a city or a state137

but individuals can be granted rights flowing from this, such as a right to use.138

Public Property could also benefit from the conclusions reached in this research

because there is a single decision maker. To illustrate, State Property – one form

of public property – could have application as the state could accept the

Sustainability Restriction over state-owned land. Gray identifies a sub-category of

property called Quasi Property139 as, typically, being private property accessible to

the public such as shopping centres but to which this research could also apply.

128 See 2.4; Table 2.2.129 Commons Registration Act 1965. Register held by Surrey County Council for this land.130 Clarke, 'Creating New Commons’ (n126) 322.131 ibid 322; Clarke and Kohler (n103) 36.132 ibid 322.133 ibid 322.134 ibid 322.135 Clarke and Kohler (n103) 41-42.136 Michael A Heller, ‘The Tragedy of the Anticommons: Property in the Transition from Marx to Markets’ (1998) 111(3) Harvard L Rev 621, 633-37.137 Stephen Munzer, A Theory of Property (CUP 1990) 25. 138 Clarke and Kohler (n103) 40.139 Kevin Gray, 'Equitable Property' (1994) 47(2) CLP 157, 172-73.

26

Even though the proposed tax incentives would have no benefit to a state,

arguably the long-term benefit of protecting the land, as part of the environment,

should be sufficient in itself.

Within the bounds of this thesis are aims vital to informing the scope of the

research. In this context, neither an ecocentric approach (valuing nature for its own

sake)140 nor an anthropocentric approach (valuing nature because of the material

or physical benefits it can provide for humans)141 prove to be entirely satisfactory.

The fundamental difference is illustrated by Bosselmann142 who references the

ecocentric approach of the Earth Charter143 by comparison to the Rio Declaration’s

stated aim where, ‘Human beings are at the centre of concerns for sustainable

development’.144 Both approaches are extremes145 favouring either the needs of

nature over and above the needs of humanity or vice versa, and appear to exist in

a vacuum whereas property law exists in a more, ‘moral, political, social and

economic context’.146 It is argued that a broader approach – favouring neither

humanity nor the land – can stem from sustainability literature, specifically that of

Strong Sustainability.147 Strong Sustainability encompasses several issues and is

described as having, ‘little, if any, consideration of the financial or other costs of

attaining sustainability;’148 has a primary focus on the environment149 (albeit also

140 Suzanne C Gagnon Thompson and Michelle A Barton, 'Ecocentric and Anthropocentic attitudes towards the Environment' (1994) 14 J of Environmental Psychology 149, 149.141 ibid 149.142 Klaus Bosselmann, ‘From Reductionist Environmental Law to Sustainability Law’ in Peter Burdon (ed) Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press 2011) 209 <http://ebookcentral.proquest.com/lib/surrey/detail.action?docID=875565> accessed 1 May 2018.143 The Earth Charter <http://earthcharter.org/discover/the-earth-charter/> accessed 30 May 2018.144 Report of the United Nations Conference on Environment and Development Rio de Janeiro, June 1992, Resolutions Adopted by the Conference UN Doc A/CONF 151, 26 (UNCED).145 Klaus Bosselmann, The Principle of Sustainability (2nd edn, Routledge 2017) 115.146 Clarke and Kohler (n103) 3. See also Gavin Little, 'Developing environmental law scholarship: going beyond the legal space' LS (2017) 36(1) 48, 49. 147 See 4.4.1.148 Simon Bell and Stephen Morse, Sustainability Indicators Measuring the Immeasurable (2nd edn, Earthscan 2008) 14 <ftp://ftp.geo.puc.cl/Pub/Apaulsen/TEXTOS/INDICADORES DE SUSTENTABILIDAD BELL.pdf> accessed 30 November 2015.149 ibid 14. See also Bosselmann, The Principle of Sustainability (n145) 27; Ross, Sustainable Development Law (n70) 292.

27

acknowledging a bigger picture/context150) seeking to connect to the planet’s ability

to self-regenerate; in contrast to weak sustainability where the, ‘costs of attainment

(financial or otherwise) are important and are typically based on a cost–benefit

analysis, which inevitably involves trade-offs between the environment and social

and economic benefits’.151 For the purpose of this research, Ross’s definition of

Sustainability will be used as the definition of what Strong Sustainability should be

namely, ‘a duty to protect and restore the integrity of the earth’s ecological

systems’152 whilst acknowledging the context and balancing Earth’s self-generative

abilities. This will be used for two reasons: first, the use of duty connects

favourably with the rights and duties analysis used; and second, it contains an

obligation to attempt to restore damage already done. The final reason for the

inclusion of sustainability (in general terms) is that whilst it places the earth as the

focus, the doing of sustainability (broadly, sustainable development153) is the

balancing of many elements154 (discussed in Chapter 4).

Each Chapter will be outlined in the sections below.

1.2.3 The Theory of Property

150 17 SDGs (n54).151 ibid 13 (Box 3.1); Bosselmann, The Principle of Sustainability (n145) 27.152 Ross, Sustainable Development Law (n70) 292; see 4.3.1.153 See 4.3.2.154 17 SDGs (n54).

28

Chapter 2 sets out the connection between the two theoretical concepts used in

this research, sustainability and property theory. Sustainability will form the basis of

the restriction inserted into a theoretical model of property based on one of the

three theories analysed in Chapter 3. This chapter also introduces property theory

and answers the sub-research question: how can the theories of property in land be utilised to promote/support sustainability?

The notion of property has a long heritage (arguably back to Ancient Greece155)

and this research will show that, as Clarke and Kohler suggest, property can be

used as a mechanism for problem solving156 under the premise that property is a

relationship we have both between each other and with a thing or a resource.157

Property provides the framework for these relationships. In Britain, the model has

been shaped over time to become what is considered to be the current liberal

paradigm,158 which (it is argued) does not sufficiently protect the land159 partly

resulting in the failures evident globally in the environment such as climate change.

Statutory restrictions in Britain dictate the way the land may be used160 but there is

no fundamental duty of care, no legal obligation for humanity to care for the land.

The concept of property as a framework is the ideal mechanism to regulate the

relationships we have with each other in respect of the land but a shift in the

paradigm is required (through voluntary steps in response to new legislation)

through the inclusion of the Sustainability Restriction proposed in this research.

155 Plato, The Republic (Desmond Lee trn, 2nd edn, Penguin Books 1987); David Lametti, 'The Object of Virtue' in Gregory S Alexander and Eduardo M Peñalver (eds) Property and Community (OUP 2010) 1-22; Sheri Breen, 'Citizens, Agriculture and Property in Plato's Republic and More's Utopia' (Western Political Science Association Conference, San Antonio, Texas, 2011) 6; Jeremy Waldron, ‘Property and Ownership’ in Edward N Zalta (ed) The Stanford Encyclopedia of Philosophy (2012) <http://plato.stanford.edu/archives/spr2012/entries/property/> s2 accessed 18 March 2015; Alejo José Sison and Joan Fontrodona, 'The Common Good of the Firm in Aristotelian-Thomisitic Tradition' (2012) 22(2) Business Ethics Q 211.156 Clarke and Kohler (n103) 60. See also Fennel (n83) 1.157 ibid 3.158 See 3.2; 6.2.1.159 Lucy and Mitchell (n43) 583.160 For example Town and Country Planning Act 1990.

29

By taking a qualitative,161 theoretical analytical approach (broken down by

Underkuffler as identifying, ‘what property is … [and] why property is what it is, and

whether it should remain that way’162), Chapter 2 concludes that property is rights-

based163 and uses this mechanism to springboard the proposal for changing

humanity’s relationship with the land. This chapter introduces the idea of using

Honoré’s Incidents of Ownership as a means of mapping the three theories:

Liberal, Stewardship and Progressive Property. First, to map the form of the three

theories (hypothesising to fill in the gaps in scholarship); and second, to introduce

a new restriction to be incorporated into the three theories of property; before re-

analysing them in Chapter 6. Sustainability theory provides the vehicle for the

creation of the new Sustainability Restriction to evidence that this restriction can

and should be included with the consequential positive impact upon the way in

which property in land is treated (in Chapter 6); thus combining the two elements of

the theoretical framework: property theory and sustainability.

1.2.4 The Liberal Paradigm, Stewardship and Progressive Property

Scholarship within the field of property theory abounds164 and three theories –

Liberal, Stewardship and Progressive Property – have been selected as

representing the major models emerging from Western common law tradition. This

develops the discussion from Chapter 2 in which it is argued that property provides

the theoretical foundation for the creation of the new paradigm (the Land Model)

and the creation of the new restriction (the Sustainability Restriction). The sub-

161 Ian Dobinson and Francis Johns, 'Qualitative Legal Research' in Mike McConville and Wing Hong Chui (eds), Research Methods for Law (Edinburgh UP 2007) 17 defined as non-numerical.162 Laura S Underkuffler, 'A Theoretical Approach: The Lens of Progressive Property' in Susan Bright and Sarah Blandy (eds), Researching Property Law (Palgrave 2016) 11.163 Wesley Newcomb Hohfeld, 'Some Fundamental Legal Conceptions as Applied to Judicial Reasoning' (1913-14) 23 Yale L J 16; ibid 12.164 Harold Demsetz, 'Towards a Theory of Property Rights' (1967) 57(2) The American Economic Rev 347; Tony Honoré, ‘Ownership’ in Making Laws Bind (Clarendon Press 1987); J W Harris, Property and Justice (Oxford 1996); Gray and Gray, ‘The Idea of Property in Land’ (n3); James Penner, The Idea of Property in Law (OUP 2003); Laura S Underkuffler, The Idea of Property (OUP 2003); Clarke and Kohler (n103); Eric T Freyfogle, ‘Taking Property Seriously’ in Prue Taylor and David Grinlinton (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011) ProQuest ebrary accessed 27 July 2016; Gregory S Alexander and Eduardo M Peñalver, An Introduction to Property Theory (CUP 2012).

30

research question that Chapter 3 addresses is: what are the rights and duties demonstrated by the three selected theories of property? This directs the

analysis of the three theories by considering the different interpretations around the

notion of property with variations as to the way land is held and controlled, by

whom and for whom; and critically the rights and duties over the land for the three

theories. There are significant gaps in the scholarship around Stewardship and

Progressive Property and this research maps the contours of these three theories

to the extent they exist, and hypothesises as to the form of the missing aspects to

assess the viability of real world application within private property.165 These

theories, in component parts, are subsequently compared first using the Incidents

of Ownership as a means of mapping the points of comparison, and then against

the Incidents of Ownership combined with the new Sustainability Restriction

(developed in Chapter 5) to consider what Stewardship and Progressive Property

might look like when the Sustainability Restriction has been imported into all three

theories.

This analysis forms the comparison in Chapter 6. The economic theory of property

is also touched on to demonstrate why it will not be included in the comparison,

essentially because it operates by viewing property (in land) in economic terms as

a capital good or asset166 which conflicts with the more ethical strong sustainability

approach taken in this research (discussed at 4.4).

1.2.5 Sustainability

Sustainability provides the second limb of the theoretical framework and is critical

to informing the more ethical strong sustainability167 approach (and in supporting

the creation of the new Sustainability Restriction developed in Chapter 5) that

provides the response to the sub-research question: what is the connection between sustainability and theoretical property in land? Stallworthy comments

that one aim behind writing Sustainability, Land Use and Environment a legal

analysis was to contribute a common lawyer’s perspective on possible roles of

legal mechanisms in the pursuit of sustainable solutions.168 This research advances

165 Barritt (n86) 2-3; 5 in relation to Stewardship; Alexander, Peñalver, Singer and Underkuffler (n44) 743 in relation to Progressive Property.166 See 2.2.1.167 See 4.4.1; 4.4.2.168 Mark Stallworthy, Sustainability, Land Use and Environment: a legal analysis (Cavendish Publishing 2002) xxxi.

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the theory of property as the mechanism to pursue a sustainable solution, thereby

connecting these two theories full-circle.

Sustainability presents challenges on both definitional and implementation levels.

Defining and interpreting sustainability169 and sustainable development (broadly

being the process of achieving sustainability) is the subject of much debate170 and

is explored in Chapter 4, predominantly through looking at the economic and ethics

based issues and conflicts within the concept itself. The definitions will be fully

developed in the chapter but, broadly, sustainability is the theoretical framework,

the concept; and sustainability is achieved through sustainable development. To

implement sustainability successfully presents a further, distinct set of issues with

Ross and Dernbach suggesting legislation as being the most effective way forward

because it, ‘can compel adherence to best practices and promote long term

consistency’.171 This will be challenged on the grounds that an overarching

legislative solution lacks political expediency. However, it will be argued that a

single piece of legislation (discussed at 6.4) to implement the Sustainability

Restriction could prompt a shift (over time) in the current property paradigm.172

169 ibid xxxiv.170 See 4.3.171 John C Dernbach and Andrea Ross, 'The Sustainable Relationship: What the United States and the United Kingdom Can teach Each Other About Climate Change and Sustainable Development at the National Level' (2013) 30(3) The Environmental Forum, Widener Law School Legal Studies Research Paper (No 13-26) 30, 32 <http://ssrn.com/abstract=2256983> accessed 16 January 2016.172 See 6.2

32

This section also provides the response to one other aspect of the main research

question – that of finding the most effective model of property … for the future.

This resonates with the idea of preserving the ecosystem/environment for future

generations; a concept that appears in multiple reports and legislation173 but where

the absence of an indication (let alone definition) as to who this group might be is

noticeable. This lacuna has almost certainly arisen as a consequence of the

practical difficulties of implementation and this research suggests scope for looking

further into the US doctrine of Public Trust as a potential means to facilitate this

(discussed at 4.5).

1.2.6 Creating the New Sustainability Restriction

Chapter 5 develops the previous chapter’s analysis of sustainability into the

creation of the Sustainability Restriction to be used in Chapter 6, drawing on a

distinct method – Reductionism174 – to do so. The sub-research question asks: is there a viable measure of sustainability and, if so, how can it be used to develop a sustainability restriction? This is answered through a developmental

process connecting back to Chapter 4’s definitions of sustainability175 and

sustainable development176 and an analysis of the issues around Sustainability

Indicators (‘SIs’), concluding that there is not currently an entirely satisfactory

measure of sustainable development (the ‘doing’ of sustainability).177 SI tends to be

used as a generic term representing the numerical indices that sit within a

sustainability framework. Having argued that there is not, as yet, an effective

measure of sustainable development, it is proposed that there is definite merit in

the use of a framework to direct the type of indices used. For example, the

Planetary Boundaries concept (discussed at 5.5.2) with its framework of nine areas

(which are subsequently measured) forms an element of the new Sustainability

Restriction.178 This research does not seek a numerical measure but rather uses a

synthesis of two well-established frameworks, the Environmental Performance

Index (the ‘EPI’)179 and the Planetary Boundaries concept180 (which themselves are

173 See 4.6.174 See 5.2.175 See 4.3.1.176 See 4.3.2.177 See 5.3.178 See 6.3.179 See 5.5.1; Table 5.2.180 See 5.5.2; Table 5.3.

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compared at Table 5.4); together with the Bellagio STAMP guidelines.181 Critically,

these are not used as a sustainability indicator framework but as the Sustainability

Restriction, which ultimately places a restriction on a landowner’s use of his/her

land, as it relates to the rate of biodiversity loss, changes in land use, and tree

cover loss.182 This is a macro approach and, as such, connects directly to the major

estates (discussed at 2.4) where an acceptance of the Sustainability Restriction

could have a significant impact in terms of land mass. The new Sustainability

Restriction is not intended to be a complete prohibition on how the land is used, in

much the same way that a speed restriction does not completely restrict one’s

ability to drive a car. It is, however, a mechanism that prohibits tree cover loss,

biodiversity loss and change in land subject to consideration of other elements of

sustainability, reflected through offsetting.183

1.2.7 The Most Effective Model

The sub-research question addressed in Chapter 6 is: which jurisdiction in Britain is best placed to support the new Land Model and, how do the property theories rank against each other in comparison? This is a two-part

question. First, it represents the culmination of the research from the previous

chapters, connecting property theory and sustainability to create the new

Sustainability Restriction and the subsequent comparison of the three theories

against the new ownership criteria.184 The results facilitate a hypothesis around

how the Land Model – the most effective model of property – would be formed

using the Incidents of Ownership, as a mapping tool, as part of a pragmatic

solution that is consistent with the current paradigm. In seeking the ‘most effective’

model, the desired outcome – to achieve strong sustainability – is assessed in

Chapter 5 through the restriction on change in land use, tree cover loss and

biodiversity loss. The second part of the question is answered through the use of a

rights based theoretical comparative analysis – looking at the Landowner, the

Landowner’s Ownership Rights and Public Regulation, the latter in the form of

post-devolution sustainability legislation – primarily to support the jurisdictional

analysis used in this chapter. Devolution marks change in the law making process

within the UK and, accordingly, post-devolution sustainability legislation in England

and Wales is compared to facilitate the hypothesis from a political perspective. The 181 See 5.4; Table 5.1.182 See 5.6.183 See 6.4.4184 See 6.3.

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conclusion is that Wales would best support the Land Model going forward.185

Another (unexpected but significant) conclusion is reached: that the applicable

paradigm is of less relevance once the Sustainability Restriction is implemented;

that it is the Sustainability Restriction that will protect the land better. The

anticipated results were that Stewardship, with its emphasis on a positive duty

towards the land, would most likely prove to be the more effective. However, the

impact of the Sustainability Restriction is so great that, whilst there are discernable

differences between the three theories, these prove to be less than expected at the

outset. The final element of this research addresses the practicalities around how

this could be implemented through legislation, proposing something akin to a

conservation covenant and, as an alternative, something substantially similar to a

TPO.186 This could be entered into on a voluntary basis but, reflecting a more

pragmatic approach, could be accepted in response to financial incentives through

a combination of Stamp Duty and/or Council Tax reductions and/or through Income

Tax Relief for charitable contributions.187 The mechanism for the practical operation

of the Sustainably Restriction (voluntarily either with or without taking up a financial

incentive) is discussed as operating within a biodiversity offsetting programme.188

1.2.8 Methods

This research comprises elements from property law, environmental law and

Sustainability including economics and science; on one level it could be described

as cross-disciplinary or inter-disciplinary seeking to, ‘transcend traditional

boundaries’ to address the issues.189 Combining property theory with sustainability

requires a way of researching that ‘integrates, among other things techniques,

perspectives, concepts and theories from more than one language that would be

beyond the category of a single discipline’.190 Equally, this research could sit within

the broad umbrella of environmental law given its connection to the environment191

or, critical environmental research;192 Fisher et al acknowledge that environmental

185 See 6.2.186 See 6.7.187 ibid.188 ibid.189 Elizabeth Fisher, Bettina Lange, Eloise Scotford and Cinnamon Carlarne, 'Maturity and Methodology: Starting a Debate About Environmental Law Scholarship' (2009) 21(2) J Environmental L 213, 243.190 Little (n146) 61. 191 Fisher, Lange, Scotford and Carlarne (n189) 217.192 Andreas Philippopoulos-Mihalopoulos and Victoria Brooks (eds), Research Methods in Environmental Law (Edward Elgar Publishing Limited 2017).

35

law, ‘straddles many fault lines’193 and, ‘as an object of scholarship and research

does not yield easily to a single paradigm, methodology or explanation’.194

Accordingly, this research does not fall within one neatly defined method but draws

on several based on the goal of using the most appropriate to support the

scholarship195 and consequently will use a combination of methods to provide the

requisite support. There is however one overarching methodological approach –

comparative theoretical analysis of the three theories of property – to which

general methods from law, political science and sustainability are drawn to,

‘facilitate recognition of common criteria for good research among scholars who

use different tools’.196 The result is the formulation of the Land Model, following

which post-devolution legislation is analysed to establish the most effective

jurisdiction to support it. This section will provide a review of the principal methods

underpinning this research, explaining how their selection and application will

contribute to the thesis.

It is acknowledged that research can begin with grounded theory but this research

began (as Yin suggests) with a literature review of all relevant primary and

secondary sources (discussed at 1.3) followed by careful and thoughtful posing of

research questions or objectives (1.2.1-1.2.7). Yin outlines the components of the

research design by initially identifying the question (here, both the main and the

sub-research questions).197 The primary research question: what is the most effective model of property to protect land, as part of the environment, for the future is discussed above, as are the sub-research questions used as the means

to direct the formulation of the answer (at 1.2 and Table 1.1). Yin’s second step is

to outline propositions (if any) that are also set out (at 1.1 and 1.2.2). Third, Yin

suggests that any unit(s) of analysis must be clarified so the three theories of

property – the Liberal paradigm, Stewardship and Sustainability – are explored (in

Chapter 3) through rights and duties (the units) that these three theories display.

The secondary point of comparison is the two jurisdictions – England and Wales –

where the unit of analysis is post-devolution sustainability legislation. Finally, Yin

states that there must be logic linking the data to the propositions, and criteria for

193 Fisher, Lange, Scotford and Carlarne (n189) 219. 194 ibid 225.195 ibid 244.196 Henry E Brady, David Collier and Jason Seawright, ‘Refocusing the Discussion of Methodology’ in Henry E Brady and David Collier (eds), Rethinking Social Inquiry: Diverse Tools, Shared Standards (2nd edn, Rowman & Littlefield Publishers 2010) 7.197 See 1.3.1-1.3.5.

36

interpreting the findings.198 This requirement is satisfied in that each step of the

process is well detailed, as is the interpretation of the results in Chapter 6.

A common feature in scholarship is the need for clearly defined terms.199 Yin refers

to the need for reliability; the research should be capable of replication and still

reach the same conclusions. 200 The research parameters have been clearly stated

(at 1.2.1-1.2.7) together with the justification for the selections made.

1.2.9 Doctrinal Research

198 Yin (n111) 27.199 Simon Bell and Stephen Morse, 'Breaking through the Glass ceiling: Who really cares about sustainability indicators?’ (2001) 6(3) Local Environment 291, 295; Mark S Reed, Evan D G Fraser and Andrew Dougill, 'An adaptive learning process for developing and applying sustainability indicators within local communities' (2006) 59 Ecological Economics 406, 410.200 Yin (n111) 44. See also Pennings, Keman and Kleinnijenhuis (n111) 50.

37

Doctrinal research has been described as lying, ‘at the heart of common law,’ as a

‘core’ legal method201 and as a two-part process: first, locate the law; and second,

interpret and analyse the text.202 In this research, the three theories of property are

located predominantly through literature (detailed at 1.3.1-1.3.2) and are then

analysed using a rights-based analysis. As discussed above, this research is

conducted using mixed methods and here a doctrinal approach is used to provide

the foundation for the comparative theoretical analysis. Dixon has suggested that,

as an approach, doctrinal research can have a significant application to property

law203 but, as a method, it has been challenged for being too narrow and little more

than ‘puzzle solving’.204 Although perhaps a valid general comment, it is overcome

in this research by its inclusion as only part of a mixed method, here providing a

framework for the initial analysis needed to provide the substantive qualitative data

used for the comparative research.

1.2.10 Comparative Theoretical Analysis

Comparative law has a long heritage dating back to Plato’s The Laws – in which he

compared the legal systems of Athens, Sparta and Knossos205 – since when there

have been debates as to the merit of defining comparative law as a distinct

method.206 However, this research is not similarly comparable to the legal systems

of different countries; it compares concepts:207 first, the three theories of property –

the Liberal Paradigm, Stewardship and Progressive Property – against Honoré’s

Incidents of Ownership208 incorporating the new Sustainability Restriction;209 and

201 Terry Hutchinson, ‘Doctrinal Research: Researching the Jury’ in Dawn Watkins and Mandy Burton (ed), Research Methods in Law (Routledge 2013) 7, 12. 202 ibid 13.203 Martin Dixon, 'A Doctrinal Approach to Property Law Scholarship: Who Cares and Why?' in Susan Bright and Sarah Blandy (eds), Researching Property Law (Palgrave 2016) 7.204 Hutchinson (n201) 12.205 Benjamin Jowett (trs) Plato, The Laws (Cosimo Classics, Reprint edn, 2008) 456e-66d. See also Peter de Cruz, Comparative Law in a changing world (2nd edn, Cavendish Publishing Limited 2004) 7; Gerhard Dannemann, ‘Comparative Law: Study of Similarities or Differences?’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2006) 396.206 Morris and Murphy (n220) 100. See also Bram Ackerman, 'The Comparative Method in Property Law' in Susan Bright and Sarah Blandy (eds), Researching Property Law (Palgrave 2016) 91.207 Ackerman (n205) 90.208 ‘[C]omparison can be made between different rules in a single legal system’ Konrad Zweigert and Hein Kötz, Introduction to Comparative Law (Tony Weir tr, 3rd edn, OPU 1998) 2.209 See 6.3.10; 6.3.11.

38

second, jurisdictions, through an analysis of recent legislation from England and

Wales. There is little specific literature on comparative theoretical analysis although

Yin provides an overview of posing questions as to who, what, where, how and

why [something] is being compared.210 The art of comparison has been described

as a, ‘fundamental tool of analysis’211 with a vital role in the formation of hypothesis

by looking for similarities and contrasts to, ‘contribute to the inductive discovery of

new hypotheses and to theory building’.212 Here, comparison is used to align and

explain similarities and differences213 as the basis of a response to the research

question.214 This is a four-part process: first, the rights and duties of the three

theories are analysed (Chapter 3); second, the rights and duties are tested against

Honoré’s eleven Incidents of Ownership (Chapter 6); third, they are tested against

Honoré’s eleven Incidents of Ownership incorporating the new Sustainability

Restriction (Chapter 6); and finally, the results are compared against the post-

devolution legislation to locate the one that best supports the new Land Model

(also Chapter 6).

But, why compare at all? 215 Here, the purpose is to map the elements of the three

theories using clear points of comparison provided by the Incidents of

Ownership;216 and then, to establish the impact of the insertion of the Sustainability

Restriction into these three theories of property. In support of this approach, the art

of comparison has been described as one of the most important cornerstones to

developing knowledge about society and politics.217 It is argued that the results

prove that the Sustainability Restriction would have a positive impact towards the

better protection of the land, as part of the environment within the private property

paradigm through a restriction on change in land use, tree cover loss and

biodiversity loss. In support of this, Dannemann cites several purposes of

comparative law,218 the most pertinent being to solve a particular problem in an

effort to improve legal rules or institutions suspected as being a source of the 210 Yin (n111) 9. See also Pennings, Keman and Kleinnijenhuis (n111) 5 use what, when and how to compare; Ackerman (n205) 98 uses what and why.211 David Collier, ‘The Comparative Method’ in Ada W Finifter (ed) Political Science: The State of the Discipline II (American Political Science Association 1993) 105.212 ibid 105.213 Edward J Eberle, ‘The Method and Role of Comparative Law’ (2009) 93 Washington U Global Studies L Rev 451, 452.214 Zweigert and Kötz (n208) 43.215 Giovanni Sartori, ‘Comparing and Miscomparing’ (1999) 3(3) J of Theoretical Politics 243, 243.216 Honoré (n164) 161-79.217 Pennings, Keman and Kleinnijenhuis (n111) 4.218 Dannemann (n205) 402.

39

problem.219 This research is seeking a new solution to the issues facing our planet

which, as Morris and Murphy suggest, comparative research supports, ‘looking [for]

... legal responses to societal issues’220 (here a way to locate a more effective way

to protect the land). The purpose of the research is explicitly stated at 1.1–1.2.7

to, as Ackerman suggests, ‘make the results more intelligible and more

interpretable to those who support a different agenda’.221

Within the field of political science there is debate around the relative merits of

using a larger or smaller number of units to achieve a more effective comparison. A

smaller number better facilitates the ability to focus on very specific questions; ‘it

may be argued that the most interesting studies will often be those that focus on a

smaller number of cases’.222 This is supported by Seawright and Gerring who argue

that scholars researching a relatively small number of cases – in this research the

three theories of property and the two jurisdictions – develop more rigorous and

detailed explanations.223

The three theories of property share mutual properties – all are theoretical

concepts in academic literature; all are evident in policy and legislation; and all

share an ethical connection – rendering them sufficiently similar for comparison.

The theories have been selected from Western common law tradition –

predominantly British with some US literature and case law (principally relating to

Progressive Property) – driven by a desire for objectivity, as they offer different

perspectives on how land is treated. The Liberal paradigm represents an historical

evolution, with an emphasis on the right of exclusion; Stewardship has an

emphasis on a duty to protect the land; and Progressive Property places social

virtue and wealth distribution as priorities. Sartori observes that apples and pears

are comparable as they share mutual properties224 – both are fruit and both have

219 ibid 403.220 Caroline Morris and Cian Murphy, Getting a PhD in Law (Hart Publishing 2011) 37.221 Ackerman (n205) 99.222 Collier (n211) 110.223 Jason Seawright and John Gerring, 'Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options' (2008) 61(2) Political Research Q 294, 295.224 Sartori (n215) 245. See also Peter Leyland, ‘Oppositions and Fragmentations: In Search of a Formula for Comparative Analysis?’ in Andrew Harding and Erin Örücü (eds), Comparative Law in the 21st Century (Kluwer Academic Publishers 2002) 215; de Cruz (n205) 220-21; Dannemann (n205) 408.

40

seeds – and Zweigert and Kötz similarly argue that, in law, things that fulfil the

same function are comparable.225

The results of the comparison demonstrate some real differences but fewer than

were anticipated at the outset. In comparing the post-devolution legislation, the

geographical parameters of England and Wales are set by the scope of this

research226 but it is argued that they are sufficiently similar for comparison. England

and Wales have a mutual common law system and it is helpful that the post-

devolution comparison can be traced back to the same starting point with both

jurisdictions previously sharing the same legal system pre-devolution.227

1.2.11 Reductionism

In seeking the most appropriate methodology,228 Reductionism is employed

throughout this research but most notably in Chapter 5. As a distinct method it is

predominantly evident in science but is also used in sustainability scholarship; it is

an approach to understanding the nature of complex things by reducing them into

segments for analysis. Descartes argued the world was like a machine that could

be better understood by taking its pieces apart, studying them, and then putting

them back together to see the whole.229 Similarly, in this research the land can be

separated from the environment through the use of reductionism; it is still clearly

part of the ecosystem and on one level it is difficult to envisage disconnecting it

from the other elements. However, support can be found in UK legislation; for

example, whilst environmental legislation can be seen in general terms such as the

Environmental Protection Act 1990230 and the Environment Act 1995, water has

one set of rules231 whereas the atmosphere – equally a part of the environment and

ecosystem – is subject to different legislation.232 Similarly, Land is distinctly treated

within Britain, illustrated by the Law of Property Act 1925.233 .Further support for

225 Zweigert and Kötz (n208) 34.226 See 1.2.2.227 The Union with Scotland Act 1706 and the Union with England Act passed in 1707.228 Fisher, Lange, Scotford and Carlarne (n189) 227.229 Ian Maclean (trs) Descartes, A Discourse on the Method  (first published 1637, Oxford World Classics 2008) Part V.230 Environmental Protection Act 1990 includes separate sections addressing issues from control of dogs s149-51 to straw and stubble burning s152.231 Water is beyond the scope of this thesis see text to (n110).232 Climate Change Act 2008.233 LPA, s205(1)(ix).

41

this argument arises within sustainability literature, reports and legislation, where

the concept of sustainable development is still frequently shown as three

interconnecting ellipses: environment, social and economic.234 Reductionism, as it

is used in Chapter 5, is discussed further below (at 5.2).

Although an economic approach to property is not being pursued here because it

conflicts with the ethical strong sustainability approach,235 land has historically been

separated from other elements of the ecosystem on the grounds of economic

activity236 and therefore treated more as a commodity.237 Despite this research

pushing back against the predisposition to commodify land evident in Britain and in

the US (discussed at 2.2.1) – arguing that there are more relevant factors to

consider – it should be acknowledged that economic analysis would further support

the use of reductionist analysis here.

1.3 Structure of Thesis

This section provides an overview of the thesis and outlines the conclusions

reached in each chapter in response to the main and sub-research questions. The

research follows a development process beginning with the theory of property

(Chapter 2), which creates the framework for the analysis. Chapter 3 explores the

three theories of property subject to analysis: Liberal, Stewardship and Progressive

Property. Chapter 4 draws on sustainability as the second limb of the theoretical

framework and connects to the creation of the new Sustainability Restriction

formulated in Chapter 5. Finally, the culmination is the comparisons conducted in

Chapter 6.

1.3.1 The Theoretical Framework – The Theory of Property (Chapter 2)

In response to the sub-research question (at Table 1.1), appropriate literature is

reviewed including Alexander, Clarke, Gray, Honoré, Penner, Underkuffler and

Waldron.. The use of the bundle of rights as a framework for analysis is justified,

and Honoré’s Incidents of Ownership are detailed for use as the means of mapping

and comparing the three theories of property. The chapter provides the theoretical

support for Chapter 3 and concludes by connecting the theory of property to 234 Brundtland Report (n100) but now evolved to 17 SDGs (n54). 235 See 4.4.1. 236 Dixon (n203) 106.237 See 2.2.1.

42

sustainability, evidencing how this re-conceptualisation can be used as a

mechanism for the change proposed in this research.

1.3.2 The Theoretical Models of Property (Chapter 3)

This chapter investigates the three selected theories of property – Liberal,

Stewardship and Progressive Property – and addresses the sub-research question

(at Table 1.1) through an analysis of the rights and duties demonstrated within

each. These elements will be used in Chapter 6 to facilitate the comparative

analysis.

In considering the Liberal model, this research examines Blackstone and Locke,

together with literature from Clarke and Kohler, Lucy and Mitchell, Leopold,

Macpherson, Nozick, Olivecrona and Waldron. The formation of the Liberal

paradigm, the historical influences and subsequent changes are all analysed.

Stewardship is examined through legislation and literature beginning with Plato and

including, amongst others, Gray, Lange and Shepheard, Lucy and Mitchell,

Caldwell and McGillivray. The origins of the notion are explored, as are the rights

and duties demonstrated.

The final theory – Progressive Property – is explored predominantly from the

literature, notably Alexander, Peñalver, Singer and Underkuffler, but US eminent

domain case law (or ‘Takings’) is also explored in support, as is human flourishing

and virtue ethics, together with the rights and duties within Progressive Property.

The rights and duties demonstrated by all three are then put forward for

comparison in Chapter 6 against the Incidents of Ownership.

1.3.3 The Theoretical Framework – Sustainability (Chapter 4)

This chapter explores sustainability and sustainable development, the second

element of the theoretical framework in this research. The review includes relevant

UN Reports, International and UK legislation as well as literature from amongst

others Bell, Bosselmann, Brown-Weiss, Jackson, Leopold, Morse, Rockström,

Ross, Stallworthy and Traer in response to the sub-research question. The chapter

concludes by drawing on the ethics within sustainability as the connection is made

43

to the theory of property. Additionally, this chapter provides the theoretical basis for

the use of sustainability to create the new Sustainability Restriction (in Chapter 5).

Creating an effective mechanism to protect the land for the future presents a

complex set of challenges and, whilst no conclusions can be reached, it is argued

that there is scope for further development using the US doctrine of Public Trust.238

1.3.4 The New Sustainability Restriction (Chapter 5)

Chapter 5 sees the creation of the new Sustainability Restriction drawing on

literature from Bosselmann, Bell, Morse, Rockström and Ross together with various

UN and other reports. It explores the issues around measuring sustainability and

the development of the Sustainability Framework. The chapter addresses the

specific method used (reductionism); provides an overview of the issues

surrounding the use of SIs; develops the distinction between the indicator sets and

the frameworks; and shows that a new framework can be created based on the

Bellagio STAMP principles and a comparison of the EPI and the Planetary

Boundaries concept, to formulate the new Sustainability Restriction; thus

answering the sub-research question.

1.3.5 The Comparison (Chapter 6)

238 See 4.6.

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This chapter is the culmination of the thesis and pulls the previous research

together to form a two-stage comparison between the three theories of property (to

formulate the new Land Model) and between the two jurisdictions (to establish

where the Land Model is most likely to succeed). A number of conclusions are

reached including:

the addition of the new Sustainability Restriction239 would have a positive

impact regardless of whether the land holding paradigm is the Liberal

paradigm, Stewardship or Progressive Property;240

if even a small section of society adjust their behaviour towards the land

and then act accordingly, there will be a positive reaction;

creating an effective mechanism to protect the land for the future presents a

complex set of challenges but there is scope for further development using

something akin to charitable trust law or US Public Trust doctrine;241

recent legislation in Wales will, in time, change the formulation of the

property model in these jurisdictions;242

the most effective model of property would be a hybrid of the theories

analysed, called the Land Model;243

239 See 5.6.240 See 3.2-3.4.241 See 4.6.242 See 6.6.243 See 6.3.12.

45

for the immediate future, Wales presents the best opportunity to support the

Land Model.

1.4 Conclusions

This chapter has set out the format of this thesis and the methods used to support

the research. The central argument has been outlined in favour of creating a new

paradigm – a synthesis of property theory and sustainability – to protect land, as

part of the environment, through a velvet property revolution (a reference to the

Czech revolution and its non-violent transition of power).244 It is proposed that the

acceptance of the new Sustainability Restriction could revolutionise the way

humanity treats the land albeit through a gradual, steady metamorphosis.

244 16 November to 29 December 1989.

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Chapter 2 Property Theory

2.1 Introduction

‘There is nothing which so generally strikes the imagination, and engages the

affections of mankind, as the right of property’.245

Throughout history, the idea of property has been scrutinised and critiqued by

many including Aristotle,246 Plato,247 Acquinas, Grotius, Pufendorf, Locke, Bentham

and Blackstone, Rousseau, Proudhon, Hegel, Hobbes, Kant, Gray, Penner,

Waldron, Alexander and Underkuffler. The problems facing our planet today have

been outlined above248 and, in arguing that property can be used as a problem

solving mechanism,249 this research seeks to advance existing property theory by

proposing that it can be re-imagined in a new way to support the creation of a

sustainability paradigm to protect the land, as part of the environment. The

theory of property underpins the theoretical framework to this research and, when

linked to sustainability, provides a response to the sub-research question: How can the theory of property in land be utilised to promote/support sustainability? It provides the framework to the new sustainability-based

paradigm (described here as the ‘Land Model’ and formulated in Chapter 6)

connecting to sustainability through shared aims250 and the ethical contextual

considerations evident within much of the scholarship around both fields.251

Property theory in Britain has evolved252 to be sufficiently adaptive as a mechanism

to facilitate the promotion of the new Land Model.253

Property is frequently taken to mean, ‘things’,254 one’s possessions such as a bike,

a wallet or land but how property is conceptualised will be explored using a

245 William Blackstone, Commentaries on the Laws of England Book 2, Ch 1.246 William Ellis (trs), Politics of Aristotle: A Treatise on Government (The Floating Press 2009) ProQuest ebrary Accessed 28 July 2016, Book 2 ch 5; Waldron, ‘Property and Ownership’ (n155) s2.247 Plato,The Republic.248 See 1.1.249 Clarke and Kohler (n103) 60.250 See 4.4.251 See 4.2-4.4.252 Paul Kohler, 'The Death of Ownership and the Demise of Property' (2000) 53 (1) CLP 237, 244. See also 6.3.1.253 See 5.6; 6.3.10-12. See also Fennell (n83) 17.254 Underkuffler (n164) 11.

47

development of Clarke and Kohler’s analysis. 255 This chapter is broken down into

sections advancing the development of the new paradigm – the Land Model –

establishing that property is in fact a relationship between two or more persons in

respect of a thing – in this research the thing being the land – and supporting the

later development of the concept of inserting a restriction into that relationship.

The commodification of property is addressed (at 2.2.1) for two reasons. First, to

illustrate why exclusionism and economic analysis (which, despite appearing so

interconnected as to be two elements of one argument, have been separated as

far as possible into two distinct issues to support depth of analysis256) have not

been included as models to put forward for comparison in this research because

they conflict with the strong sustainability approach taken.257 Further, it is argued

that the principle elements – the right of exclusion and property as an asset – are

both evident in the Liberal paradigm, which is explored.258 Second, the section on

commodification of property also begins a connection developed later in the

chapter that argues humanity is restricted from forming a different type of

relationship with the land. The modes of landholding and property as a resource

allocation are addressed to illustrate the distinction with private property (one of the

major means of holding property in Britain,259 albeit not the only one260), which is

the primary focus of this research; within which is a secondary focus being the

major estates (as outlined above261) with their inclusion justified in section 2.4.

At 2.3, it is argued that extensive scholarship around property theory 262 focuses on

the relevant arguments surrounding the bundle of rights metaphor which, in turn,

leads to a critical evaluation of Honoré’s work on ownership.263 Honoré’s Incidents

of Ownership have been challenged (and this will be addressed) however, in the

context of this research, the Incidents provide a means of mapping the three 255 Clarke and Kohler (n103) 217.256 See 2.2.1; 2.3.257 See 4.4.1.258 See 3.2.259 See 6.2. 260 See Carol M Rose, 'The Comedy of the Commons: Commerce, Custom, and Inherently Public Property' (1986) 53 U Chicago L Rev 711; Elinor Ostrom, Governing the Commons (CUP 1990); Clarke, 'Creating New Commons’ (n126); Fennell (n83) Communal property is beyond the scope of this research. 261 See 1.1.262 Thomas W Merrill and Henry E Smith, 'What Happened to Property in Law and Economics?' (2001) 111 The Yale L J 357; Penner, The Idea of Property (n164); Gray and Gray, Elements of Land Law (n2); Clarke and Kohler (n103); Alexander and Peñalver (n164); Nicole Graham, Lawscape: Property, Environment and Law (Routledge 2011).263 Honoré (n164)166-79.

48

theories of property; and, further, that the insertion of the Sustainability Restriction

counters some of the challenges made against the validity of Honoré’s analysis.

The idea of expanding the Incidents by inserting the new Sustainability

Restriction264 will be developed to form the basis of a framework, against which the

property theories reviewed in Chapter 3 can be subsequently assessed in Chapter

6. Property provides the framework behind the crucial inclusion of the new

Sustainability Restriction within the current Incidents of Ownership, thereby

connecting property as the means of implementation and sustainability as the end

goal that is critical to this research; it provides the vital theoretical support for the

creation of the Sustainability Restriction. Finally, the legal theorists who draw on

the associations of place as they relate to the land will be explored thus re-

connecting property theory back to the land itself bringing the chapter full-circle,

answering the sub-research question and providing one element of the response to

the main research question by proposing a reform of the current private property

paradigm in land,265 supported by a strong sustainability approach.266

2.2 The Meaning of Property

This section will discuss the definitions used in this research, the varying modes of

landholding, and the commodification of property, arguing that there is a

disconnection between humanity and property in land. The notion of property

conjures powerful images from Bernard Shaw’s, ‘organised robbery’,267 to

Proudhon’s, ‘property is theft’,268 to Gray’s, ‘it is fraud’,269 and Tolstoy’s, ‘root of all

evil’;270 images that prompt what has been described as, ‘visceral outrage when

property needs and claims … are not honoured’.271 Property surrounds humankind

to the extent we lay claim to our ‘things’ from an age prior to being aware of

consciously doing so.272 Clarke observes that on one level property is about ‘things’

(say land, bikes, books) but it is up to us to determine whether certain ‘things’ may 264 See 2.3.265 ‘Private ownership is … a valuable, if not indispensible, component of the social order and of economic flourishing’ Freyfogle, ‘Taking Property Seriously’ (n164) 43. 266 See 1.1; 3.3.1; 4.4.1; 4.4.2.267 George Bernard Shaw, Preface to Major Barbara (first published in1907).268 Pierre-Joseph Proundhon, What is Property? (first published in 1840) (Donald R Kelley and Bonnie G Smith trns and eds, CUP 1993) 13. 269 Kevin Gray, 'Property in Thin Air' (1991) 50 C LJ 252, 252.270 Leo Tolstoy, What Then Must We Do (Aylmer Maude trns) 161 <www.arvindguptatoys.com/arvindgupta/whatthenmustwedo.pdf> accessed 24 July 2016.271 Underkuffler (n164) 1.272 Gray, 'Equitable Property' (n139) 159; ibid 1.

49

form the subject matter of property.273 The land, as part of the environment forms

the basis of this research so, whilst acknowledging that not all ‘things’ can be the

subject of property,274 there is no dispute that land is capable of forming the subject

matter. This is supported from a relationship perspective by Stewardship literature

where the object of the duty of the steward is, ‘generally considered to be a duty

towards the land’.275

273 Alison Clarke, 'Use, Time, and Entitlement' (2004) 57 CLP 239, 241.274 Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; Clarke and Kohler (n103) 360-68. 275 Barritt (n86) 5-6. See also Leopold (n1) 12-16; Charles E Little, 'Has the Land Ethic Failed in America?' (1986) U Illinois L Rev 313, 314; Karp (n20) 748-53; Lucy and Mitchell (n43); Christopher Rodgers, 'Nature's place? Property rights, property rules and environmental stewardship' (2009) Cambridge L J 550, 550.

50

Advancing the argument that, ‘property law is about the legally recognised

relationships we have with each other in respect of things’,276 the parties involved in

a property relationship must be considered to support the concept of adding a

Restriction into the relationship; this is picked up further in Chapter 6.Waldron

argues that legal relations must be between people not inanimate objects using, as

an illustration, ‘Susan’ and her ‘Porsche’. A car cannot have rights or duties or be

bound by rules, so legal relations must be between people.277 In driving her

Porsche, Susan is bound by all the relevant rights and duties involved in safely

driving a car; the Porsche itself cannot be bound because it is incapable of forming

the requisite legal capacity. It is suggested (at 3.3.5) that there is scope for the

development of living things to have rights by virtue of some form of guardian ad

litem, so this could potentially also be applied to inanimate objects278 but – whether

the Porsche or living things such as trees – inanimate objects do not have the

ability to communicate so the point ultimately comes full-circle in that the very act

of being a guardian ad litem is forming a relationship not between a person and a

thing but between two people (or more trustees). Clarke and Kohler enunciate

three different aspects of the relationship between people and things:

276 Clarke and Kohler (n103) 3.277 Jeremy Waldron, 'What is Private Property?' (1985) 5 OJLS 313, 314. See also Graham, Lawscape (n262) 134-47.278 See 3.3.5.

51

1. (adjective) to describe the nature of the right e.g. I have a property right

in the car, not just a personal right;

2. (adjective) to explain the nature of the relationship e.g. I lend the car to

you giving rise to a bailment; and

3. (noun) to denote the thing itself e.g. I rent a flat from you – we both have

property rights in the flat and the lease relationship is a property

relationship.279

This research argues that property law is most effective as a problem solving

mechanism when viewed as relationships between people in respect of things280

(when considered in a social, political and economic context281) reflected in this

research through sustainability. The in rem analysis could be used as it sees

owning land as giving rise to rights (to the owner) and a general duty to the world.

Arguably this is where the stewardship duty to care for the land could easily sit but

it is dependent on humanity choosing to accept the burden. The relationship

analysis is superior to the rights in rem analysis because it enables the creation of

a restriction (voluntarily accepted) to be incorporated within a familiar paradigm.

Within this research, the Sustainability Restriction forms one fundamental element

of the new Land Model as the restriction on the person-to-person relationship. To

illustrate, a landowner who enters into a Sustainability Restriction would then be

prevented from taking steps to change the use of his/her land in any way that

would negatively impact tree cover loss, biodiversity loss (specifically focussing on

land degradation282) or change in use. The word restriction is used as it is intended

to limit humanity’s consumption of the land, but not totally prohibit it,283 within a

context of strong sustainability, evidenced in the form of the Sustainability

Restriction and the relative merits being subject to offsetting (as discussed at

6.4.4). These relationships (and the role of private property) remain important

today because, irrespective of the ethical issues surrounding the commodification

of property, it is still considered aspirational to achieve home ownership;284 and,

279 Clarke and Kohler (n103) 17.280 ibid 3.281 Clarke, 'Use, Time, and Entitlement' (n273) 240; Little (n146)49-50; Brundtland Report (n100) ch2 (25) 46.282 See 5.6.283 See 1.2.6; 5.5.3; 6.3.11.284 Lawrence Yun, 'Why Homeownership Matters' Forbes (12 August 2016) <www.forbes.com/sites/lawrenceyun/2016/08/12/why-homeownership-matters/#290008e7480f> accessed 29 December 2017; Office for National Statistics, ‘UK Perspectives 2016: Housing and home ownership in the UK’ <https://visual.ons.gov.uk/uk-perspectives-2016-housing-and-home-ownership-in-

52

given the immovability of land, it is difficult to escape some type of property

relationship.

2.2.1 The Commodification of Property

For some, land undoubtedly equates to power; to claim property in land is to

declare control over that land.285 Gray comments, ‘Property is not a thing but a

socially approved power-relationship in respect of socially valued assets’.286 Offer

supports this stating that land allocation determines social, economic and political

relations.287 Private property is a legal, philosophical construct created by

humanity,288 one that yields power clearly derived from control of an asset.289 Here,

the asset in question is the land which is routinely monetised based on the

perceived value of the land and any buildings on it, frequently based on and

expressed in terms of the right to exclude; the owner of the land has the right to

exclude the rest of the world.290 There is an undeniable connection between the

exclusionist perspective and the commodification of property however, here, the

two will be separated as much as possible to facilitate analysis thereby providing

support for the decision to exclude these models and illustrate the presence of

these perspectives in On Property.291 Commodification of property is not new, it can

be traced back to jurists and theorists such as Locke who in Of Property weaves

land, property and money together;292 to Blackstone’s, ‘sole and despotic

dominion’;293 and to Bentham, ‘[P]roperty and law are born together, and die

the-uk/> accessed 29 December 2017 juxtaposed with the European perspective Agnès Poirier, ‘Why are Brits so obsessed with buying their own homes?’ The Guardian (14 January 2016) <www.theguardian.com/money/2016/jan/14/why-are-brits-so-obsessed-with-buying-their-own-homes> accessed 20 December 2017. See also Loi Duflot II, Loi ALUR (Accès au logement et urbanisme rénové) or Loi n° 2014-366 du 24 mars 2014; Gov.UK< Press Release <www.gov.uk/government/news/longer-tenancy-plans-to-give-renters-more-security> accessed 8 July 2018.285 Gray and Gray, 'The Idea of Property in Land' (n3) 1-3.286 Gray, 'Equitable Property' (n139) 160.287 Avner Offer, Property and Politics 1870-1914 (CUP 1981) 1.288 Burdon, Earth Jurisprudence (n47) 13-14; Sarah Blandy, ‘Collective Property: Owning and Sharing Residential Space, in Hopkins N (ed), Modern Studies in Property Law (Hart Publishing 2013) 159. 289 Malcolm and Clarke (n119) 202-29. 290 Emma Waring, 'Property and Exclusion – An Owners Right to Exclude' (SLS Conference, York September 2015).291 John Locke, Second Treatise of Government (first published 1690, ed C B Macpherson Hackett Publishing 1980) Ch5 On Property.292 Locke (n291). 293 Blackstone (n245) Book 2, ch 1.

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together … take away the laws, and property ceases’.294 Part of the power-

commodity relationship was contextual as proprietary rights in land had important

implications for man from the seventeenth century to Victorian England,295 most

notably the right to vote.296 This commodification or economic perspective has not

dissipated over time, land is still viewed as an asset whether it is manifested

through retail space,297 offices and/or the desire to own a home (as evidenced in

the UK by the rate of owner-occupation increasing from 10% to 68% of the

population from 1914 to 1999298).

Essentially, the argument is that control (evident in Locke’s ‘inclosure’299) facilitates

greater potential for financial gain by giving the landowner the right to determine

what does and does not happen in, on, over or under his/her land. This is effective

but is responsible at least in part for humanity’s disconnection with the land. Two

proponents of this argument, Smith and Merrill, suggest that the strongest

motivation for work is the desire for increased wealth300 and one of the most

palpable realisations of wealth is land ownership, with the rights to private property

effectively being traded in a market place. Economists see land as a capital good

or asset in fixed supply, its value subject to ebbs and flows depending on a range

of factors,301 removing the incentive to care for the land unless there is financial

benefit in doing so.

Burdon advances the argument that many of the problems facing the planet today

are a consequence of humanity’s dominion over nature.302 Whilst this is undeniably

true, Burdon misses the final element of the argument, that humanity’s historic

commodification of property was attributable to this desire. Land has wrongly been

294 Jeremy Bentham, Principles of Civil Code vol 1, pt 8 <www.laits.utexas.edu/poltheory/bentham/pcc/pcc.pa01.c08.html> accessed 20 July 2016. 295 Offer (n287) 2.296 James Tully, A Discourse on Property: John Locke and his Adversaries (CUP 1980) 173 only males over the age of 21 who owned property were entitled to vote.297 Alasdair Barrett, ‘Retail in London: Looking Forward’ (2015) Greater London Authority <www.london.gov.uk/sites/default/files/gla_migrate_files_destination/Retail in London - Final Version.pdf> accessed 18 November 2017.298 Joe Hicks and Grahame Allen, ‘A Century of Change: Trends in UK statistics since 1900’ (1999) Research Paper 99/111. See also Cassie Barton, ‘Home ownership & renting: demographics’ House of Commons Library Briefing Paper (Number CBP 7706, 2017) home ownership at 65% at the end of 2016.299 Locke (n291) s33. See also 3.2.3.300 Clarke and Kohler (n103) 71. 301 Begg, Fischer and Dornbusch (n32) 177-79.302 Burdon, Earth Jurisprudence (n47) 11.

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viewed solely for what it can yield for humans, quantified in terms of food yield,

shelter, status and financial security, bought and sold in the market place. This

lacks foresight by placing too great an emphasis on enhancing value through what

is done to (or placed on) the land such as chopping down trees to build a garage

which might well add value, but does not consider what is best for the land (as part

of the environment) in the short and long-term. To illustrate this point further, a

landowner (holding a fee simple303) may want to cut down trees or a forest to

extend their home and, unless any of the trees are subject to a Tree Preservation

Order (‘TPO’),304 they would be entitled to do so; but, in doing so, they would cause

a change in the local ecosystem with potential adverse effects. With the proposed

Sustainability Restriction in place, this course of action would be restricted unless

specific circumstances were applicable and the loss of these trees could be

mitigated by, say, re-planting others in lieu under a form of biodiversity offsetting.305

Similarly, the commodification of property stock (as a perceived means for

providing shelter for humanity) or agricultural land does not take into account other

vital functions that the land – on which such a house typically sits – performs in

providing for animals, plants and organisms, which equally need shelter and

nourishment as well as acting as a natural filtration system for water.306

303 LPA, s1(1)(a).304 Tree Preservation Regulation (n74).305 See 5.4.306 Colin T Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation Law in the UK’ (2011) 23(2) J of Environmental L 203, 221.

55

There is extensive research on ecosystem services that explains how land

supports more than just what is immediately visible, although the definition is

contested because it translates into what is included in the monetising of these

suites of services and how this is then implemented.307 Reid suggests that it is, ‘a

strategy for the integrated management of land, water and living resources that

promotes conservation and sustainable use in an equitable way’.308 Nsoh and Reid

refer to five categories of ecosystem services, recognised at a national and

international level, which are: provisioning services (here food, crops, timber, fresh

water and plant-derived medicines); regulating services (here those that affect

water quality through the filtration of pollutants by wetlands); climate regulation

(through carbon storage and water-cycling, and protection from disasters and

disease); cultural services (here recreation, spiritual and aesthetic values, and

education); and supporting services (here soil formation, photosynthesis and

nutrient cycling).309 Whilst there has already been some success in implementation

– perhaps the most famous being the Catskills Mountains project310 which uses

ecosystem services to restrict pollution in the Catskills Delaware watershed

providing New York City with fresh water, thus averting the need to spend billions

of dollars on chemically treating drinking water – there have also been some issues

around (national and international) implementation elsewhere, similar to those

around imposing sustainability legislation.311 To take ecosystem services forward

significantly would most likely require a restatement of the current property holding

paradigm given humanity’s clear resistance to change (as outlined at 4.4 and 4.5),

meaning that piecemeal change may be a more realistic solution, although it is

difficult to envisage how ecosystem services could be adopted gradually. It has

also been suggested that the benefit of the service could essentially be linked to

the land that has the benefit312 but, to date, this has not been fully developed. This

307 Brendan Fisher, R Kerry Turner and Paul Morling, 'Defining and classifying ecosystem services for decision making' (2009) Ecological Economics 643, 645.308 Reid, ‘The Privatisation of Biodiversity? (n306) 219 with reference to Convention on Biological Diversity, COP 5 (2000) Decision V/6 para 1.309 Walters Nsoh and Colin T Reid, 'Privatisation of biodiversity: who can sell ecosystem services?' (2013) 25(1) Environmental L and Management 12, 5 <https://research.birmingham.ac.uk/portal/files/26308472/SLSAarticleFINAL.pdf> accessed 1 December 2019.310 James Salzman, ‘Creating markets for ecosystem services: notes from the field’ (2005) 80(600) New York U L Rev 101.311 See 4.7.312 Kalyani Robbins ‘Allocating Property Interests in Ecosystem Services: from Chaos to Flowing Rivers’ (2018) 42 Harvard Environmental L Rev 197, 208-09; 224-31. See also Colin T Reid, 'Employing Property Rights for Nature

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research is not proposing ecosystem services as the immediate solution (hence a

limited synopsis) but it supports the argument that the land provides far more than

is perhaps immediately recognised. Ecosystem services are clearly a developing

field and potentially one that could provide solutions to some of the problems

facing the planet.

There has also been a tendency for economists to view property as a mechanism

for addressing issues arising from a scarcity of resources; that a system of rules

allocating use and control will resolve the issues.313 Hardin most notably posited

this idea314 before being challenged by Ostrom315 amongst others, and he

subsequently revised his position.316 A brief explanation is required to show why it

has not been included in more detail within this research. Hardin’s The Tragedy of

the Commons followed Demsetz’s article,317 his aim being to find a solution for the

time when resources become so severely depleted as to threaten humanity’s very

existence. He uses a hypothetical group of herdsmen sharing ‘common’ land on

which they are all entitled to let cows graze. It is in each herdsman’s personal

interest to introduce additional cattle to the land even though the quality of the

common will consequently be damaged for all. Individually, each herdsman should

benefit but, in doing so, the commons will be depleted, even destroyed, and ruin

will follow with the damage shared by all.318 Hardin considered both private

property coupled with legal inheritance319 and public regulation as the solutions but

his article was widely criticised320 for its, ‘theoretical and practical shortcomings’,321

Conservation' in Christine Godt (ed), Regulatory Property Rights: The Transforming Notion of Property in Transnational Business Regulation (Brill Nijhoff 2016) 169.313 Clarke and Kohler (n103) 60. See also Merrill and Smith, 'What Happened to Property’ (n262) 375; Hernando De Soto, The Mystery of Capital (Black Swan 2001).314 Garrett Hardin, 'The Tragedy of the Commons' (1968) 162(3859) Science 1243;Garrett Hardin, 'Extensions of "The Tragedy of the Commons"' (1998) 280(5364) Science 682. See also Demsetz (n164); De Soto (n313).315 Ostrom (n260). See also Waldron, 'What is Private Property?' (n277) 313 not all societies need or have social rules of allocation but are able to rely on instinct, impulses and goodwill.316 Hardin, 'Extensions’ (n314).317 Demsetz (n164).318 Hardin (n314) 1244.319 ibid 1247.320 Susan J B Cox, 'No Tragedy of the Commons' (1985) 7 Environmental Ethics 49; Amy Sinden, 'The Tragedy of the Commons and the Myth of a Private Property Solution' (2007) 78 U of Colorado L Rev 533; Clarke and Kohler (n103) 61; McGillivray, 'Water rights and environmental damage’ (n119) 206.321 Ostrom (n260).

57

historical inaccuracy,322 for failing to distinguish between common property and

open access resources323 and failing to prove why private ownership provides a

better solution.324 Hardin and Ostrom were considering resource allocation, of

management of property as a commons which is the context in which Clarke and

Kohler suggest that property can be used as a means of problem solving within a,

‘limited access communal property regime’.325 Here it is argued that private

property, as a paradigm, can be used as a problem solving mechanism as

supported by some of the proponents of Stewardship326 and Progressive

Property.327 As Kohler points out, the history of property is all about flux328 yet even

in 2019 property is still playing catch up with the environmental needs of the 21st

century, as evidenced by the relatively slow speed at which property law is

reformed.329

2.2.2 Modes of Property Holding

Within Britain (being the geographical area selected330), there are different modes

of landholding (discussed at 1.2.2) which must be addressed to support the

selection of Private Property and to advance the idea that there is greater potential

application than is immediately apparent. With the exception of No Property, other

property holding concepts such as Commons, Communal Property and State

Property do, to a certain extent, fall under the definition of Private Property331 and

hence have potential application to this research.

322 Cox (n320) 49. 323 ibid 49. 324 Clarke and Kohler (n103) 61.325 ibid 61.326 Karp (n20); Lucy and Mitchell (n43); see 3.3.327 Alexander, Peñalver, Singer and Underkuffler (n44).328 Kohler (n252) 244; Gray, 'Equitable Property' (n139) 13-16.329 LPA, Land Registration Act 1925, (Joint Tenants) Act 1964, Law of Property Act 1969, Law of Property Act (Miscellaneous Provisions) Act 1989 and 1994, Land Registration Act 2002 (LRA) seven pieces of UK legislation in almost a century.330 See 1.2.2.331 Clarke and Kohler (n103) 7; see 1.1.

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Commons has been defined332 as being owned by someone where the crucial

feature is that it does not yield the owner exclusive possession. The critical point is

that whilst the owner333 could be (a) private individual(s), a trust, a corporate entity,

government or charity, ultimately there is a person, group or body who are

registered at HM Land Registry as proprietors,334 and who therefore have

responsibility in respect of that land. This is fundamental to this research’s creation

of the Sustainability Restriction.

Clarke and Kohler define Communal Property as a resource from which every

member of the community has a right not to be excluded,335 a common example

being a block of flats typically owned by way of a freeholder (an individual or limited

liability company in which all owners are members) with each individual flat held

with a leasehold title.336 The ultimate owner337 has responsibility for the building

itself and typically its gardens, garages etc. (supported by payment of utilities and a

service charge) with the leaseholder responsible for their individual flat and often

sharing responsibility with other members for the common parts.

In direct contrast is Public Property where land ownership vests with a group of

people, an example being State Property where the state holds the rights and

controls and administers use to citizens of that state. This is arguably tantamount

to private ownership as detailed in Honoré’s Incidents of Ownership in that the

state may hold land and exercise full control over use without typically yielding

exclusive possession but where individuals have personal rights.338 Honoré does

not elucidate how many incidents must be present for ownership to come into

being but it need not be all.339 The state would retain a right to withdraw access to

individuals340 – not dissimilar to an individual’s right to exclude another from his/her

332 See 1.2.333 The use of ‘own’ in this context reflects Honoré’s Incidents of Ownership; see 2.4.334 LPA, s1(1) recognises two legal estates, fee simple absolute in possession and term of years absolute in England and Wales.335 Clarke and Kohler (n103) 36; see 1.2.336 LPA, s1(1)(b). See Law Commission, Leasehold enfranchisement: A summary of proposed solutions for leaseholders of houses 2018 (Consultation Paper No 238, 2018).337 LPA, s1(1)(a).338 Clarke and Kohler (n103) 40 the example given is a family allocated a flat in the Soviet Union with a lifelong an potentially inheritable tenancy but not the ability to see it, as this would be controlled by various government departments339 Honoré (n164) 165.340 Blandy (n288) 152-172,159.

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property – but the intention would be for the benefit to apply to the wider members

not just for a particular person or small group341 such as a library with access for

the local community. In the meantime, the state would have the ability to manage,

and receive income and capital, whilst also retaining a duty to prevent harm to

those using the land (although this may be closer to occupier’s liability). Waldron

describes this as Collective Property, with access to resources allocated in the

‘collective social interest’, which he broadly equates to the socialist system.342

Communal Property can be land such as public parks, which are frequently owned

by local authorities that, in England, tend to be corporate bodies registered with fee

simple at HM Land Registry.343 In Clarke and Kohler’s example of Limited Access

Communal Property (such as a block of flats), typically there is a landlord who

would either be a corporate entity, a group of private individuals or groups of

tenants who form a limited liability company. Blandy suggests that the key feature

of Limited Access Common Property is whether an individual’s share can be

transmitted with or without the permission of the other members of the group.344 It

is important to note the distinction between Common Pool Resources described

as, ‘economic goods, independent of particular property rights’,345 from a legal

regime of Common Property.346

So, whilst the land may be deemed the subject of Communal Property it may also

be the subject of Private Property to which this research would have application.

This is one reason behind the selection of Private Property as the focus of this

research, it enables application to as large a body of the landmass in Britain as

possible and it accommodates humanity’s reluctance to change347 by using a

familiar paradigm. Gray identifies a sub-category of property called Quasi Property,

‘where a right of arbitrary or selective exclusion is not – and perhaps never has

been – exercisable in its unfettered form’.348 He is talking of places that are

privately owned, yet are clearly intended for general public use and some of the

examples he gives are local parks and leisure areas, railway stations, airports, 341 ibid 159.342 Waldron, The Right to Private Property (n125) 40-41.343 LPA, s1(1)(a).344 Blandy (n288) 159.345 Charlotte Hess and Elinor Ostrom (eds), Understanding Knowledge as a Commons From Theory to Practice (MIT Press 2011) 5. 346 ibid 5. See also Blandy (n288).347 See 4.5.348 Gray, ‘Equitable Property’ (n139) 172-73.

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shopping centres, public hospitals, museums, libraries, art galleries and community

colleges.349 Again this is Private Property where the freeholder or the managing

company retains the right to exclude certain individuals, reflecting Honoré’s most

important element of ownership; consequently these will be included. This research

does not seek to challenge which of these different modes of landholding may be

preferable but acknowledges the difficulties in changing a paradigm already

entrenched.350

2.3 The Bundle of Rights - Ownership

Ownership is a means of expressing a property right with my neighbour and the

world at large in relation to what I own.351 This section outlines the theoretical

justification for the inclusion of the Incidents of Ownership as a viable analytical

tool. This research first addresses the meaning of property (siting the research

within private property) before using Honoré’s analysis as a framework to compare

the three selected theories. It is argued that this is a clear divide between the work

of Hohfeld and Honoré, facilitating further development and adding clarity to the

process..352 Penner suggests that Hohfeld effectively splintered the concept of

property so that it is ‘best understood as a bundle of rights’.353 Whilst much of

Penner’s analysis is challenged below, unintentionally perhaps it supports the

argument that Honoré’s Incidents of Ownership (at Table 2.1), which have come to

be known as the bundle of rights,354 facilitate analysis. As a legal construct, the

Incidents of Ownership describe the (limited) ownership rights and responsibilities

present355 in the paradigm considered to be still dominant in Britain, the liberal

paradigm.356 Emphasis is placed on the right of exclusion,357 attributed by some to

Locke358 but tempered by historical influences, legislation and common law (at

349 ibid 172-73. 350 See 4.4; 4.5.351 Wilson (n21) 4.352 James E Penner, 'The Bundle of Rights Picture of Property' (1995) 43 UCLA L Rev 711, 713; 729; Jane B Baron, 'Rescuing the Bundle of Rights Metaphor in Property Law' (2013) 82 U of Cincinnati L Rev 57, 62.353 Penner, ‘The Bundle of Rights Picture’ (n352) 731.354 Denise R Johnson, 'Reflections on the Bundle of Rights' (2007) 32 Vermont L Rev 247, 247. 355 ibid.356 See 3.2; 6.2.357 Howe, ‘Lockean natural rights’ (n69); Waring (n290); Antonia Layard ‘Private Property, Public Space or Communal Property’ (ALPS Conference, Belfast May 2016).358 Howe, ‘Lockean natural rights’ (n69) 36.

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6.2.1). There is debate around the bundle of rights which has been, ‘swept up into

the controversy’,359 ‘debate and disagreement’360 with some academics

challenging361 and some defending362 its use. This research will defend the bundle

of rights and argue that some of the criticism can be tempered by the inclusion of

the new Restriction (in the form of the Sustainability Restriction).

Honoré’s describes his concept of ownership as, ‘one of the key institutions of

human society’;363 and details the standard Incidents of Ownership as, ‘legal rights,

duties, and other incidents which apply, in the ordinary case, to the person who

has the greatest interest in a thing admitted by a mature legal system’364 which

operates within the liberal concept of private property.365 Within the Incidents of

Ownership (at Table 2.1), there is very little in terms of duty attached to ownership

(of the land) and it is argued that this is not a failing of Honoré’s but a failing of the

liberal paradigm; Honoré is merely analysing what actually exists. Honoré clearly

states that not all of the Incidents are individually necessary; the use of ‘owner’ will

extend to cases in which not all the listed Incidents are present.366 Hohfeld argues

that all jural relations can be analysed within the terms of his four sets of jural

relations and correlatives.367 In this analysis, the correlative of a Right is a Duty yet

in the Incidents the Duty is palpably absent as it is in the Liberal paradigm;368 a

clear weakness and one Stewardship has sought to fill by attaching a clear duty to

the land.369 However, this has not yet proved successful370 on any meaningful

scale, which is why the proposed modified paradigm, the Land Model, or the

Sustainability Restriction could prove more fruitful.

Table 2.1 The Incidents of Ownership371

1. The Right to Possess

359 Baron (n352) 59.360 Clarke and Kohler (n103) 183.361 Penner, ‘The Bundle of Rights Picture’ (n352); Merrill and Smith, 'What Happened to Property’ (n262).362 Kohler (n252); Baron (n352).363 Honoré (n164) 161.364 ibid 161.365 ibid 165.366 ibid 165-79.367 Hohfeld (n163).368 Honoré (n164) 174-75 the duty to prevent harm.369 See 3.3.370 See 3.3.4.371 Honoré (n164).

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2. The Right to Use

3. The Right to Manage

4. The Right to Income

5. The Right to the Capital

6. The Right to Security

7. The Right or Incidents of Transmissibility

8. The Incidents of Absence of Term

9. The Duty to Prevent Harm

10. The Liability to Execution

11. Ownership and Lesser Interests

The debate around the bundle of rights centres on the importance placed on the

owner’s right to exclude the whole world. Penner argues that the right to a thing372

– here, the land – is the only right necessary.373 This research uses the bundle of

rights, arguing that it is a valid tool of analysis and, accordingly, the predominance

of this right must be accepted. Honoré’s Incidents of Ownership outline the

elements in the current Liberal paradigm (discussed at 3.2) yet, in this research,

the predominance of the right of exclusion is tempered by the inclusion of the

restriction that humanity must accept around behaviour towards the land.. The

exclusionist perspective provides the owner with the right of exclusion (by the

owner), with the duty imposed on the rest of the world.374 Honoré’s right to possess

gives the owner exclusive physical control, and the right to exclude everyone,

described as, ‘the foundation on which the whole superstructure of ownership

rests’,375 the cornerstone of the classic Liberal paradigm.376 Honoré adds that the

possessor has a general right in rem – here the land – to remain undisturbed but

qualifies this by adding that the owner must be entitled to recover from persons

generally what he has lost or had taken from him, supported by an appropriate

system of rules.377 The right to exclude is clearly evident within Locke’s On

372 Penner, ‘The Bundle of Rights’ (n352) 724-31.373 Penner, The Idea of Property in Law (n164) 23.374 Simon Douglas and Ben McFarlane, ‘Defining Property Rights’ in James Penner and Henry Smith (eds), Philosophical Foundations of Property Law (OUP 2013) 219-20. See also ibid 68-71.375 Honoré (n164) 166. 376 Waring (n290).377 Honoré (n164) 167.

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Property where it is expressed as ‘man’s’378 right to ‘inclose land’379 and, by

extension, the right to exclude from which derives the classical liberal paradigm.

Possession is a central theme to liberal ownership380 and the only fundamental

right contained within Locke’s theory, the right to exclude. Locke’s enclosure

suggests that you may enclose land381 sufficient for your needs,382 from which other

men are excluded383 subject to the charity proviso.384

It is argued that there is clear justification for the number of Incidents, in part to

enable a detailed analysis of things ‘owned’. Honoré acknowledges that some of

the incidents can easily overlap, such as the right to use or liberty to use at one’s

discretion that has, ‘rightly been recognised as a cardinal feature of ownership’385

but could overlap with the right to manage and the right to income.386 Despite this

slight blurring, it is argued that there is a clear separation between the incident and

Penner’s view that, ‘all of Honoré’s incidents of property can be accommodated by

the right of exclusive use’387 is misplaced. There is an undeniable economic

element to the Incidents of Ownership: the right to income yields the right to use

and occupy at its simplest, together with income in a more ordinary sense such as

fruits, rents, the benefit derived from forgoing the personal use of a thing and

allowing others to use it for reward (as a reward for work done in exploiting the

thing);388 a reflection of the liberal paradigm. The liability to execution is another

with the potential for the owner’s interest to be taken away from him in respect of a

debt by execution, judgement debt or insolvency.389 This is very much an economic

aspect of ownership and is justified in general terms because, without this liability,

credit growth would be obstructed and ownership could be the subject of fraud;

378 Locke (n291) to reflect Locke’s use of Man and to reflect contemporaneous thought – married women could not own land until the Married Women’s Property Act 1882.379 ibid s33.380 Waring (n290).381 Locke (n291) ss32; 35; 37.382 Ibid s33.383 ‘Enclosure’ is the act of enclosing or state of being enclosed, a region or area enclosed by or as if by a fence and the act of appropriating land, especially common land, by putting a hedge or barrier around it. 384 John Locke, First Treatise of Government (first published 1689, ed Peter Laslett, CUP 1988) s42.385 Honoré (n164) 168.386 ibid 168. 387 Penner, ‘The Bundle of Rights Picture’ (n352) 766.388 ibid 169.389 Honoré (n164) 175.

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Honoré sees this as a standard component of the liberal idea of ownership.390 From

a contextual perspective it enables people the ability to purchase their own home.

With such an emphasis on home ownership in Britain391 it is difficult to imagine

property without some economic aspect but the point is that property in land is

much more than a commodity. As evidenced in Chapter 6, where the Sustainability

Restriction is to be applied to a paradigm with full rights of exclusive possession,

this right to deal with the land would not be impeded within Progressive Property

but would within the Liberal paradigm and Stewardship392 However, the addition of

the Sustainability Restriction would impact upon a full right to use but arguably little

more than current restrictions such as those deriving from planning legislation.

Information cost analysis has not been fully developed in this thesis in response to

the strong sustainability approach taken and to push back against commodifying

land (discussed at 2.2.1). In general terms information costs are those costs

(including time costs) associated with obtaining information; typically here, this

would be information about land and land ownership, specifically connected to the

ability to deal with land (an issue as it is treating the primary function of land as

being an asset). Two arguments will be touched upon here connecting to the

exclusionist view of property. It is argued that better information (for example,

improved registration processes) and increased access (perhaps without a fee393)

would advantageously reduce information costs over an emphasis on exclusion,

with potential application in enforcing the Sustainability Restriction. Additionally, the

costs of enforcement in both an exclusionist and non-exclusionist scenario could

be equally high with likely disputes in either scenario resulting in some form of

arbitration or litigation; furthermore (but importantly in the real world), this argument

fails to take into account the reality of issues arising between neighbours. There

are weaknesses in the opposing views. Merrill and Smith argue for standardised

property rights, that a general in rem right is the best way to keep information costs

low.394 The context is the ability to treat land as a commodity, which can be the

subject of quick and easy transactions in the market place. Merrill and Smith reject

an individualised approach, the case-by-case assessment of property rights

390 ibid 175.391 Office for National Statistics, ‘UK Perspectives 2016: Housing and home ownership in the UK’ <https://visual.ons.gov.uk/uk-perspectives-2016-housing-and-home-ownership-in-the-uk/> accessed 29 December 2017.392 See 6.3; 6.3.10.393 HM Land Registry currently charges for on-line OCE applications.394 Merrill and Smith, 'What Happened to Property’ (n262) 386-86.

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advocated by Alexander and Peñalver395 that in giving owners freedom to use

information they are enabled to choose how best to exploit the land without

seeking approval.396 They suggest that an exclusionist approach of standardised

rights would place less informational demands on an owner but they question the

specific connection between economic costs and the right to exclude, for both

owners and non-owners.397 What Alexander and Peñalver suggest is relatively

simple logic, namely a right-by-right, case-by-case allocation of property rights but

this potentially places a high time and economic burden on the owner and a

potential purchaser or non-owner looking at the rights and duties pertaining to a

particular plot of land. Merrill and Smith essentially argue that streamlining the

number of rights (to exclusion) allows the owner greater time to control, plan and

invest at a lower cost.398 Whilst this argument has some merit, as discussed below

in more detail, a general right can impede greater analysis,399 judicial decisions,400

and analysis by academics and the judiciary.401 It is argued that in working within

the current system of Land Registration in Britain, this could be streamlined but not

without significantly collapsing the rights and duties, whereas a more accessible

and potentially free system to access would reduce information costs. Arguably,

this is the direction in which HM Land registry is heading through the 2017 White

Paper.402

Whilst this emphasis on the right to exclude no doubt derives from Blackstone’s403

‘sole and despotic dominion’404 and Bentham,405 it does not necessarily mean that it

is the way forward. However, Merrill and Smith do raise one pertinent issue, that

the right to exclude against the world does, theoretically, provide the owner with an

ability to plan for the future. The word ‘theoretically’ is used because the value of

both property and pensions can be increasingly volatile offering less in the way of 395 Alexander and Peñalver (n164) 136.396 ibid 137; Thomas W Merrill, 'Property and the Right to Exclude' (1998) 77 Nebraska L Rev 730, 744-45.397 ibid 137-38.398 Merrill and Smith, 'What Happened to Property’ (n262) 361.399 Clarke and Kohler (n103) 4.400 Penner, ‘The Bundle of Rights Picture’ (n352) 722.401 ‘Property, in relation to land, is a bundle of rights exercisable with respect to the land’ Minister of State for the Army v Dalziel [1944] 68 CLR 261 contrasted with the bundle of rights ‘may have its limits as an analytical tool or accurate description’ Yanner v Eaton [1999] HCA 53.402 Secretary of State for Communities and Local Government, Fixing our broken housing market Cm 9352 1, 17-21.403 Merrill (n396) 754.404 Blackstone (n245) Book II, ch 1.405 Merrill (n396) 734.

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financial security today than may have been the case historically.406 However, it is

hard to accept Blackstone (writing in the 1760s) who was undeniably exclusionist,

as justification for the emphasis on exclusion today. He could not have foreseen

the extent to which land was bought and sold or the number of landowners

impacting today’s concepts of information costs and, more importantly, the extent

and severity of the environmental concerns now facing our planet given much of

these were triggered by the Industrial Revolution which was only in its infancy at

the end of Blackstone’s life; nor could he have foreseen the now vital restrictions

on our right to exclude, the social and economic changes to the world and the

consequential problems caused, rendering the pressure on the right to exclude at

all cost untenable today.

In reality, the current liberal paradigm does not provide a landowner with full and

unadulterated rights;407 whilst, ‘we may regard ownership as the ultimate property

interest’ the owner has primary control but not exclusive control.408 In support,

Clarke and Kohler suggest that over-rationalising can distort ‘ownership’ which is

essentially amorphous,409 that ownership can never give complete control over

land.410 Raff challenges this and suggests that the concept of property owners

doing whatever they wish with what they own, subject only to legislation, is a tired

old dogma without foundation411 but, within the existing paradigm, there is an often

overlooked pre-existing environmental obligation.412 Whilst it might be conceded

that on a very small scale this concept of a latent obligation to the land may well

have always existed, it is similar to the one proposed in this research, and reflected

by the insertion of the Sustainability Restriction.

406 Zoe Dare Hall, ‘Property v pensions – what’s a better investment?’ The Telegraph (12 February 2018) <www.telegraph.co.uk/property/landlord-guide/property-pensions/?WT.mc_id=tmg_share_em> accessed 20 May 2018; Josephine Cumbo, ‘Don’t rely on your property for your pension, Royal London warns’ The Financial Times (16 July 2016) <www.ft.com/content/557275c8-4a68-11e6-b387-64ab0a67014c> accessed 20 May 2018.407 For example Police and Criminal Evidence Act 1984; Town and Country Planning Act 1990; The Town and Country Planning (Use Classes) Order 1987 (as amended).408 Clarke and Kohler (n103) 180.409 ibid 216.410 ibid 217.411 Murray Raff, 'Environmental Obligations and the Western Liberal Property Concept' (1998) 22 Melbourne U L R 657, 658.412 ibid 658, Backhouse v Judd [1925] SASR 16.

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Clarke and Kohler reasonably point out that the concept of ownership is, ‘more

problematic than it would first appear’413 as its meaning can change from one

context to another, something Honoré fails to distinguish.414 Whilst context is vital

and relevant from a social, economic and political perspective415 the argument here

is that the bundle of rights has merit as a comparison tool for the three theories of

property using a reductionist approach;416 removing the theory from its context but,

as with any conceptual reduction, the results must be capable of re-insertion back

into the big picture. Here, the results support the proposal for the introduction of a

new Sustainability Restriction.

Less has been written regarding some of the other Incidents but Penner’s analysis

offers scope for debate.417 In considering how we use property, Honoré suggests

that we can separate the right to use (being a personal right) which ‘overlaps’ with

the right to manage418 (which gives the owner the right to decide how and by whom

the thing owned shall be used and is dependent upon a cluster of powers such as

the licence to act which otherwise would be unlawful, and to make contracts419) and

the right to income (which gives the owner the right to income420). Penner’s

argument has merit in that it is easy to comprehend how the right to use could be

subsumed within the right of exclusive possession.421 However, Honoré clearly

intended they be treated separately with use being seen in terms of personal

enjoyment422 whereas the right to possess is described by Honoré as ‘exclusive

control’;423 a subtle but distinct difference. Accordingly, it is argued that Penner’s

analysis loses traction as, in practice, this is the use and enjoyment of one’s land

compared to the ability to choose who may or may not enter it.

Penner suggests that there is a distinction between transferring some of the rights

(such as a licence to use which falls within Honoré’s right to manage) and

transferring all of the rights (which falls within the right to capital).424 However, it is

413 Clarke and Kohler (n103) 182.414 ibid 182.415 ibid 3.416 See 5.2.417 Penner, 'The Bundle of Rights Picture’ (n352), 755-67.418 Honoré (n164) 168.419 ibid 169.420 ibid 168-70.421 Penner, 'The Bundle of Rights Picture’ (n352) 756.422 Honoré (n164) 168.423 ibid 166.424 Penner, 'The Bundle of Rights Picture’ (n352) 756; 757.

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argued that this lacks strength as his argument hangs on the distinction between

lesser rights being conferred or granted compared with a full interest being

transferred425 but does not fully state his concerns as to the consequences beyond

the suggestion that the owner could alter the ‘contours of the duty’.426 Whilst

Penner acknowledges that Honoré states these rights could be grouped together427

(depending on whether a wide or narrow interpretation was used) there is merit in

this point (albeit not fully expounded by Penner), as the transfer of a plot of land

held as a fee simple428 is typically parting from any obligation in respect of that

land; whereas with a transfer of a term of years absolute429 or any other legal

interests430 from a fee simple, the landowner retains the rights with duties not

transferred. Accordingly, this would impact upon the duty retained.

Having conceded that exclusive possession is the dominant right but, crucially, not

the only right, the other incidents must also be considered. The right to capital is

described by Honoré as, ‘the power to alienate, consume, waste or destroy the

whole or part of the land.’431 There is a clear argument to separate this Incident

further given that the power to alienate (being to sell, give away or otherwise deal

with the land) is clearly distinct from consuming, wasting or destroying it. One

reflects a separation from the land whereas waste or destruction does not indicate

a separation, as Penner incorrectly suggests.432 It is argued above (at 2.2.1) that

property is commodifed thereby impeding an ability to connect with the land as it is

seen solely as a resource and hence the reason for the inclusion of the right to

alienate within the Incidents of Ownership. Within the Liberal paradigm, it is seen

as fundamental to have the ability to transact land within a market place. Penner

suggests that within the general right to exclusive possession, it is not essential

that ability to alienate land be expressed independently, as it would fall within the

purview of contract law.433 However, this fails as a proposition because contract

law only comes into play if you have the right to alienate. This separation of

alienation from waste, consumption and destruction is reflected in the comparison

in Chapter 6 (at 6.3.3).

425 Penner, 'The Bundle of Rights Picture’ (n352) 756.756-59.426 ibid 759.427 Honoré (n164) 168. 428 LPA, s1(1)(a).429 ibid s1(1)(b).430 ibid s1(2).431 Honoré (n164) 170.432 Penner, 'The Bundle of Rights Picture’ (n352) 759.433 ibid 753-54.

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Penner questions the liberty to consume, waste and destroy using an example of

leaving a forest in its natural state thereby not exploiting it to its utmost value.434

Honoré provides little in the way of support – only mentioning that most people do

not willingly destroy their assets – focussing on the alienation element435 however,

it is argued that this evidences one of the failings of economic analysis of a

resource, in that issues can be over simplified and not fully understood. Using

Penner’s example of a forest, there may be many instances when leaving a forest

or natural resource in its natural state is the ideal, necessary for longer-term

conservation436 in which case the forest would arguably not be the subject of the

‘waste’ on such occasions. To illustrate, it can sometimes be beneficial to leave

forest fires burning;437 and the practice of leaving fields fallow in England goes back

to medieval times, allowing them to re-generate. Honoré references the economic

element438 yet, applying basic economics, it is argued that a sustainably managed

forest would potentially make on-going profits in perpetuity compared to the one-off

windfall realised when the forest is stripped of all its trees. Additionally, the basic

concept of supply and demand illustrates that a massive influx of one good – in the

forest example, the stripping and sale of all the wood – often causes the price of

that good to fall, resulting in greater overall financial benefit in maintaining a slower

but on-going supply of wood to the market. Unwittingly, this point is further

supported by Penner suggesting that all of these incidents cover the elements of

the ‘extinction of a relationship’439 which it does not; quite the contrary, it is the

means of preserving the land for the future (and taking an economic perspective as

a means of ensuring the longevity of a return from the land). Arguably, the

distinction in pure economic terms is that waste, would be viewed as diminishing

capital value compared with consumption of the land would be considered as

economically rational use of the land. It is acknowledged that these incidents are

grouped together for a reason; that they all involve the ‘extinction’ of the

434 Penner, 'The Bundle of Rights Picture’ (n352) 759.435 Honoré (n164) 170.436 Sumit Chakravarty et al, 'Deforestation: Causes, Effects and Control Strategies' in Clement A Okia (ed) Global Perspectives on Sustainable Forest Management (2012) <www.intechopen.com/books/global- perspectives-on-sustainable-forest-management/deforestation-causes-effects-and-control-strategies> accessed 4 April 2017.437 Carina Dennis, ‘Burning Issues’ (2003) 421 Nature 204, 204.438 Honoré (n164) 170.439 Penner, 'The Bundle of Rights Picture’ (n352) 756.760. To lay waste could include leaving land fallow, which would not involve the extinction of a right but an on-going property obligation.

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relationship between the owner and the thing (the land).440 But, were all of these

incidents to be grouped together and not addressed distinctly under a general right

to exclusive physical control, this would offer little in terms of an analytical tool.441

Here, it is argued that the bundle of rights can facilitate further analysis and it is

suggested that Penner is possibly hoisted by his own petard when he correctly

states that research should aid judicial decisions;442 fragmentation is vital for

analysis that can in turn be used by academics and the judiciary.443 In addressing

the right to capital, Honoré mentions a caveat that things not consumed should be,

‘conserved in the public interest’444 which reflects the owner’s incentive to preserve

the capital value of his asset, the land. It is argued that there is merit in separating

the alienation element from the right to consume, waste or destroy (and this will be

included in the comparison at Chapter 6),

The right to security is a right enabling you to look forward to remaining the owner

indefinitely if you so choose, providing you remain solvent.445 Honoré considered

that a state or local authority’s power to expropriate would usually be restricted to

certain limited purposes, for example those contained within compulsory purchase

orders;446 a general power to expropriate any property for any purpose would be

inconsistent with the institution of ownership.447 The incidents of absence of term is

the second part of ‘duration’ and reflects that humans are mortal and will only be

able to enjoy something for a period of time after which the fate of the thing

depends on transmissibility.448 Both of these incidents are vital as part of the overall

picture of property yet neither have been directly challenged by Penner and an

assumption may be drawn that, for Penner, these would be accommodated within

the right to exclude, which has not term limitation.

Perhaps most pertinent to this research is the duty to prevent harm whereby the

owner is subject to a condition that the thing – here the land – may not be used to

440 ibid 759.441 Clarke and Kohler (n103) 4.442 Penner, 'The Bundle of Rights Picture’ (n352) 756.722.443 ‘Property, in relation to land, is a bundle of rights exercisable with respect to the land’ Minister of State for the Army v Dalziel [1944] 68 CLR 261 contrasted with the bundle of rights ‘may have its limits as an analytical tool or accurate description’ Yanner v Eaton [1999] HCA 53.444 ibid 170.445 Honoré (n164) 171.446 Planning and Compulsory Purchase Act 2004.447 Honoré (n164) 171.448 ibid 173.

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harm others and/or to prevent others using the thing to harm other members of

society. Honoré accepted that there might be, ‘much dispute over what is to count

as harm’ (which he defined as prohibition of harmful use449) and the extent to which

give and take could be accommodated.450 The example given is that of not using

your car to run down a neighbour or a neighbour’s gate,451 and may include not

releasing noxious chemicals onto land, which would run off to a neighbour’s land.

The duty to prevent harm is different in essence to the Sustainability Restriction,

which specifically seeks to protect biodiversity loss, tree cover loss and change in

land use for several reasons. First, Honoré’s duty is expressed as being a general

duty and (as argued above in relation to exclusive possession being the only right)

a general duty is difficult to quantify with a subsequent negative impact on judicial

analysis, whereas the Sustainability Restriction provides for very specific issues to

be addressed: the loss of tree cover, change of land use and biodiversity loss. 452 A

general duty would be less tangible and, as such, less capable of being clearly

understood. To illustrate, if a person is told they may not cut down all the trees in a

wood, it is unclear whether there is sufficient connectivity between the harm and

the duty. Second, and in response to the concept of a general duty lacking

strength, the Sustainability Restriction is formulated from an analysis of the two

environmental frameworks selected in this research and clearly focuses on the

three specific issues that are priorities, thereby promoting a sustainable response

to the issues facing the planet. There is a clear argument that this is akin to the

latent duty, mentioned by Raff453 and Alexander.454 Additional support comes from

Waldron’s suggestion that Honoré’s duty to prevent harm could be treated as a,

‘general constraint on action’, creating limits as to what may be done in a given

society using those limits to establish what may and may not be done with a

resource.455 Honoré’s words support this, ‘he may not use it to harm others, but he

must prevent others using the thing to harm other members of society’;456 he is

presumably thinking here of the car knocking down a neighbour. In contrast, the

Sustainability Restriction is clearly expressed as a restriction on use, not a latent

duty. Finally, the form of the duty within the current Liberal paradigm is limited (at

449 Honoré (n164) 174.450 ibid 174, fn 1.451 Honoré (n164) 174.452 See 5.6; 6.3.11.453 Raff (n411) 658.454 Gregory S Alexander, 'The Social-Obligation Norm in American Property Law' (2009) 94 Cornell Law Faculty Publications 744, 747.455 Waldron, 'What is Private Property?’ (n277) 321.456 Honoré (n164) 174.

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6.3.10) and legislation, common law, or environmental principles would be needed

to enhance the duty. At 6.4, it is argued that legislation would be the most effective

mechanism to implement the Sustainability Restriction.

Another persuasive argument to challenge the bundle of rights is made by Gray

who suggests that property does not in fact exist; it is an illusion, which he likens to

thin air.457 Gray weaves his concept through a childhood notion of ‘it’s mine’, to

humanity’s desire to belong, to our tendency to think of property as a thing or

resource owned, an idea he picks up from Bentham who pointed out that ‘property’

is what we have in things, not the things that we think we have.458 This is similar to

viewing the bundle of rights metaphor as being so fragmented that property ceases

to be a coherent concept.459 However, as Merrill suggests on this interpretation, if

property is an, ‘empty vessel’ filled by a legal system to reflect its values, there is

no need for a right to exclude.460 It must be acknowledged that, in dealing with

property in land, courts often have to imply or infer the contours of such a

relationship.461 Property in Britain is a product of policy, legislation, common law,

historic and social influences but today still contains an emphasis on exclusion.

Penner describes Thomas Grey’s work as the ‘uselessness’ thesis by which

property as a concept is disintegrated,462 but does suggest that a, ‘less stark

version’ of this is that property is a flexible or malleable concept with no definable

essence and no guidelines governing its application, that it serves a linguistic role

in the discussion.463 It is plausible to reduce a concept to such an extent that when

the reduced fragment is re-inserted back into the whole it has ceased to have

meaning464 so, on that basis, it is understandable where Grey is going with this

argument. Yet, the ‘nothingness’ of property argument is countered in part by

Waldron who points out that if property is indeed indefinable then it cannot be used

as a tool for political and economic analysis, or as justification for the existence of 457 Gray, ‘Property in Thin Air’ (n269) 252.458 ‘Bentham indicated astutely that 'in common speech in the phrase "the object of a man's property", the words "the object of" are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words "a man's property" perform the office of the whole' ibid 3 fn 13.459 Thomas C Grey, ‘The Disintegration of Property’ (1980) 22 American Society for Political and L Philosophy 69, 81; Baron (n352) 65.460 Merrill (n396) 737.461 Stack v Dowden [2007] UKHL 17; Jones v Kernott [2011] UKSC 53.462 Penner, 'The Bundle of Rights Picture’ (n352) 769.463 ibid 770-71.464 See 5.2.

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private property.465 This brings the argument full-circle and has much practical

merit; if property does not exist then it cannot be used and surely the fact that it is

used by the judiciary who are required to elucidate the rationale behind decisions

proves that property and the bundle of rights provides a good, if not perfect,

mechanism of analysis. In support of this Kohler observes that, ‘ownership has

received a bad press of late’ because the focus of recent academic work has been

to deconstruct the model to question what is there.466 He argues (as does the

researcher) this is a reflection of poorly applied reductionism where the analysis

cannot usefully be reinserted back within its context;467 that property and ownership

are a formula to deal with the allocation of finite resources.468 This analysis is

correct; all that is needed is a system of rules.

As stated above, the concept of utilising Honoré’s Incidents469 as a means of

mapping the three theories can only be developed on the basis that this research

accepts (albeit acknowledging the criticisms of) the bundle of rights as an effective

analytical tool, thereby making many property issues easier to understand and

enabling different aspects of ownership to be clarified.470 This position is supported

by the judiciary’s continued use of the bundle of rights as an analytical tool471 and

the suggestion that the metaphor captures a fluid conception of property as

something created – making it flexible and more responsive – and that it facilitates

the identification of the parties’ rights, powers, privileges, immunities and values

involved.472 Essentially, the concept is to add to Honoré’s list a similar restriction on

the owner of the ‘thing’ that, for the purpose of this thesis, is the land.

2.4 The Major Estates

As discussed above (at 1.1), this research has identified a key group where an

adoption of the Sustainability Restriction would have a significant impact, one

where there is a connection to the two demographic groups of society potentially

most likely to be more willing to accept the Sustainability Restriction (at 4.4.3). This

465 Jeremy Waldron, 'What is Private Property?' (n277) 313-14.466 Kohler (n252) 237.467 See 5.2.468 Kohler (n252) 282. 469 Honoré (n164) 17-34.470 Baron (n352) 79-81.471 Hood v Revenue and Customs Commissioners [2016] UKFTT 59 (TC); Moorjani v Durban Estates Ltd [2015] EWCA Civ 1252; Johnson v Jolly [2006] EWHC 3002.472 Baron (n352) 81-83.

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section addresses, the major estates in England and Wales on the grounds that if

they could be persuaded to accept the Sustainability Restriction, there would be a

significant positive consequence, based simply on the impacted volume of

landholding.

The largest 20 estates are shown at Table 2.2 and are listed in order of size and a

number of these will be explored as being illustrative of types of major landowners.

These top 20 major landholders together hold 4.4million473 of Britain’s c37million

acres and, subject to legislative and other constraints,474 as owners they can

significantly influence how their land is treated. It follows that if these 20 can be

persuaded to change the way they treat their land, the resultant impact should be

considerable, based on the volume of land they hold. Most of these major

landowners also tend to be in positions of great influence, some with an entire

infrastructure in place to promote their involvement with sustainability, such as the

National Trust475 and the RSPB476 meaning that they are well placed to lead a

change of behaviours and attitudes generally. In contrast, a recent search of the

Northumberland Estates and the Atholl Estates revealed no sustainability policy at

all,477 reflecting a lack of engagement or an unwillingness to engage with the

concept of sustainability, and therefore where significantly more work would be

required to achieve active engagement. So, a forceful impact could be achieved if

a relatively small number of people can be persuaded to address the way they

treat the land through a two part change: a fundamental shift in perception to

accept that change is needed (acknowledgment) followed by having the willingness

to act accordingly (action).478 Similarly, a willingness to benefit from incentives

could have a disproportionately positive impact on speeding up the proposed

process. To illustrate this, with reference to the restriction on tree cover loss, this

could have a significant impact on large estates with forestry. As is discussed

below (at 5.5.1 and 5.5.2), small changes can benefit the whole and in this context

whilst data indicate that carbon dioxide (CO2), methane, nitrous oxide and

473 Shrubsole (n110) 297-308, Appendix 1.474 See 3.2; 6.2.475 National Trust, ‘£30 million investment in a sustainable future’ <www.nationaltrust.org.uk/news/30-million-investment-in-a-sustainable-future> accessed 19 June 2018.476 RSPB, ‘Environmental Policy Statement’ <ww2.rspb.org.uk/Images/environmentalpolicystatement_tcm9-132485.pdf> accessed 18 June 2018.477 Northumberland Estates <www.northumberlandestates.co.uk/>; Atholl Estates <https://atholl-estates.co.uk/> accessed 10 February 2019. 478 See 4.4.

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fluorinated gases occur naturally, human activity is increasing the concentrations of

CO2 and is responsible for 64% of man-made global warming.479 Whilst the

composition and structure of some of these significant landowners should make

them ideologically more receptive to more pro-active targeting than others, this

could be, further enhanced by the incentives proposed in Chapter 6.

Four landowners – the National Trust (‘NT’), the Crown Estate, the Ministry of

Defence (‘MOD’) and the Northumberland Estates – have been selected from this

group, not based exclusively on size but as representative of four diverse entities:

respectively, a charity, Crown lands, a government department and a ducal estate.

Each of these entities will be bound by common law and statutory constraints

(discussed at 3.2) and this section will examine what, if any, are their statutory or

regulatory sustainability restrictions. Where development work is carried out on any

of these land holdings it may fall within Schedules 1 and 2 of the Town and

Country Planning (Environmental Impact Assessment) Regulations 2017,480 which

sets out the types of development that are subject to an Environmental Impact

Assessment (‘EIA’), and largely apply to large-scale commercial development.

From an ethical perspective, McGillivray argues that developmental gains should

no longer take priority over conservation and that development should be justified,

‘only if their impacts can be reduced to a level which is deemed unproblematic’.481 

The Regulations provide that consideration is to be given to, ‘the use of natural

resources, in particular soil, land, water and biodiversity’482 which (arguably) would

require consideration be given to tree cover loss, biodiversity loss and change of

land use. However, the argument is that consideration be given to the

Sustainability Restriction for all land, not just for development that falls within

Schedules 1 and 2.

479 European Commission, Causes of Climate Change <https://ec.europa.eu/clima/change/causes_en> accessed 20 November 2017.480 Directive 2011/92/EU (known as 'Environmental Impact Assessment' – EIA Directive) or for public plans or programmes on the basis of Directive 2001/42/EC (known as 'Strategic Environmental Assessment' – SEA Directive).481 Donald McGillivray, 'Mitigation, Compensation and Conservation: Screening for Appropriate Assessment Under the EU Habitats Directive’ (2011) 1 http://ssrn.com/abstract=1924264 or http://dx.doi.org/10.2139/ssrn.1924264 accessed 31 December 2017.482 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, s6(2). DEFRA and Natural England, Guidance, EIA (Agriculture) regulations: apply to make changes to rural land <www.gov.uk/guidance/eia-agriculture-regulations-apply-to-make-changes-to-rural-land> accessed 30 October 2019.

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Being a ministerial department, the MOD is directly answerable to a minister483 and,

in turn, the government and is bound by all environmental and other statutory

constraints.484 It is argued that whilst a strong sustainability policy is in place with

clear goals, the implementation data485 are collated internally so the results must be

viewed with a degree of subjectivity. The MOD’s stated aim is to protect and

defend people and territories in both the UK and overseas486 and, critically here,

has not been devolved to the Welsh Assembly but is accountable to Westminster.

Over the years, the amount of land held by the MOD has fluctuated dramatically

typically due to periods of war. In WWI, land was requisitioned487 as it was needed

for munitions factories, training grounds, gas testing and from 1917 for food

production. 488 Understandably, land acquisition slowed between the war years489

but dramatically increased again during WWII490 (up to an estimated 580,847 acres

at its WWII peak491) with more land needed due to the increased capabilities of the

armed forces and the associated requirement for larger physical spaces in which to

train.492 This dropped in the following years and the MOD currently holds 505,825

acres.493 Today, the land is used predominantly for training and housing MOD

facilities etc. but it is thought that 14 sites have a residual contamination issue, a

legacy of WWI hydrogen cyanide, phosgene and mustard gas494 and later nerve

agents like sarin, tabun495 and VX.496 Even though production and use of these

toxins is now banned497 much of the land is still contaminated498 however, as

mentioned above with reference to Yorke Bay,499 one advantage of prohibiting

human access is that wildlife thrives to the extent that it is estimated that 174 Sites 483 The Rt Hon Ben Wallace appointed 24 July 2019.484 See 3.2.485 Ministry of Defence, Sustainable MOD Annual Report 2017/18 Sustainability in the Ministry of Defence <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/754154/SustainableMOD2018.pdf> accessed 12 September 2019.486 MOD <www.gov.uk/government/organisations/ministry-of-defence> accessed 12 September 2019.487 Defence of the Realm (Acquisition of Land) Act 1916. 488 Shrubsole (n110).489 ibid155-56.490 ibid 156.491 ibid 157.492 ibid 156.493 ibid 298; Appendix 1.494 ibid 164.495 ibid 156-66.496 ibid 166-67.497 Chemical Weapons Convention 1993. 498 Rob Edwards, ‘Dial R for radioactive’ (1997) 155(2090) New Scientist 19.499 See 1.1.

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of Special Scientific Interest (‘SSSIs’) now exist on MOD land.500 Perhaps in

response to this historic contamination, a sustainability policy and a clear level of

environmental awareness exist today with sustainability embedded as one of the

MOD’s Defence Priorities in the Defence Strategic Direction 2011 (the reference to

sustainability – albeit not sustainable development501 – made in the context of the

17 SDGs502). Additionally, there is an aim to act as land stewards,503 with £980,000

of funding made available to improve SSSIs and other sites protected under the

EC Habitats Directive.504 Although there is much positive about this, it should be

noted that there are no additional statutory obligations over and above the existing

requirements, and that the MOD produces its annual report for an internal

audience. It is argued in this research that the land needs greater protection,

something that could be achieved by the adoption of the Sustainability Restriction,

which would place the needs of the land at the forefront.

With its 550,000 acres,505 the National Trust of England and Wales (‘NT’) is a

charity founded in 1895 and regulated by statute506 and its Memorandum and

Articles of Association registered at Companies House,507 and run by a board of

trustees delegating to a management committee. The statutory purpose is

expressed as to promote the permanent preservation of lands and buildings of

beauty or historic interest for the benefit of the nation, with land to be preserved for

its natural aspect features and animal and plant life,508 and for ‘public recreation

resort or instruction’.509 There is a clear emphasis on public enjoyment as illustrated

by a later statute that enables the trustees to do anything they deem desirable for,

‘providing, or improving, opportunities for the enjoyment of the property by the

500 Ministry of Defence, Sustainable MOD Annual Report 2017/18 (n485);Ministry of Defence, Sustainable MOD Strategy Act & Evolve 2015-2025 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/498482/Sustainable_MOD_Strategy_2015-2025.pdf.> accessed 12 September 2019.501 See 4.3.502 Ministry of Defence, Sustainable MOD Annual Report 2017/18 (n485).503 Ministry of Defence, Sustainable MOD Strategy Act & Evolve 2015-2025 (n500) 6-8. 504 Ministry of Defence, Sustainable MOD Annual Report 2017/18 (n485).505 Cahill (n110) 18. In 2017 the National Trust places it at 618,000 acres <www.nationaltrust.org.uk/> accessed 20 November 2017.506 The National Trust Acts 1907-1971 varied by The Charities (National Trust) Order 2005 (SI 2005 No 712).507 The National Trust (Enterprises) Limited, no 01083105.508 The National Trust Act 1907, s4(1).509 ibid s4(2).

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public, and in the interests of persons resorting thereto’.510 This could include

provision of facilities and services, including meals and refreshments, parking

places for vehicles, shelters and lavatory accommodation as well as building works

to accommodate these. This anthropocentric approach is similarly reflected in the

Articles and Memorandum of Association filed at Companies House which state

the Trust may:

‘hold, cultivate and develop any estates, land and properties … by carrying

on the business of farmers, foresters, market gardeners, horticulturalists or

otherwise as the Company may from time to time determine’.511

This provides NT with a very wide ambit as to how it can operate without a

requirement to consider any aspect of sustainability or duty to care for the land;

perhaps surprisingly, the word sustainable does not even appear in any of the

statutes or Articles and Memorandum of Association. The only apparent current

reference to the environment is a very brief Environmental Policy promising to

‘improve the condition of our environment’.512 Apart from a 2017 press release for a

sustainable futures project on renewable energy,513 little more is evident. It is

apparent that land held by NT would benefit from a strong sustainability approach

through the adoption of the new Land Model or the Sustainability Restriction; the

latter bringing its requirement to restrict, but not necessarily stop, over-

consumption of the land in terms of biodiversity loss, tree cover loss and change in

land use. This could effectively be implemented and managed by NT through a

form of offsetting (as discussed at 6.5.4).

Much as the creation of Britain itself is a product of history514 so too are some of the

largest family estates, particularly the Crown Estate and some of the aristocratic

estates. Britain is a product of a series of conquests from the Romans to the

Normans – the last great invasion, possibly the first real ‘land grab’515 – followed by

the end of a feudal system and the dissolution of the monasteries under Henry VIII

who redistributed ownership of land to around 1,500 families.516

510 ibid s23(1).511 Articles of Association filed 12 December 2018, art 4(2).512 National Trust, Environment Policy <https://nt.global.ssl.fastly.net/documents/environmental-policy-statement.pdf> accessed 11 September 2019.513 The National Trust <www.nationaltrust.org.uk/news/30-million-investment-in-a-sustainable-future> accessed 20 December 2017.514 See 6.3.515 Shrubsole (n110) 50 it is estimated that by 1154-89 royal forest covered between a quarter and third of all England. 516 Cahill (n110) 23.

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Table 2.2 The Top Landowners in Britain517

Whilst the volume of ownership has dropped for much of the aristocracy518 some

have retained significant landholdings and there are sufficient large estates to

make a meaningful difference. Britain comprises approximately 37 million acres yet

it is estimated that circa 566,000 acres are still in the hands of just 15 Dukes.519 To

put this in context, the population of England and Wales in 2011 (the last census)

was 58.7 million520 and to give an indication of typical landholdings, the Duke of

Northumberland (the 8th largest landowner and discussed below) through the

Northumberland Trust Ltd holds land in Northumberland, Scotland, London, Surrey

and Tyneside. The Duke of Westminster (the10th largest landowner) holds 11,500

acres outside Chester, 10,000 acres of agricultural land in Cheshire, 23,500 acres

in Lancashire including the forest of Bowland, 96,000 acres of Reay Forest in

517 Cahill (n110) 18 data from 2001.518 ibid 106-7.519 Shrubsole (n110) 306-07, ibid 107. Although Shrubsole estimates up to 30% of Britain remains in the hands of the gentry and aristocracy.520 ibid 297.

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north-west Sutherland (Scotland), 1,800 acres in North Wales some of which is

quarried and land in Mayfair and Belgravia. And, the Duke of Devonshire (the 17th

largest landowner) holds (amongst other landholdings) 35,000 acres of land

around Chatsworth House. This land tends to be spread across cities, villages and

rural areas and whilst much is used for agriculture, farming and mining, some is

parkland and forest. The point being that this land is held and controlled by

relatively few making decisions as to how it is used (subject to statutory and

common law constraints) and if change could be implemented on these volumes

there would be a material impact.

The Crown Estate is an anomaly in that it is described as belonging to the reigning

monarch for the duration of his/her reign but is not the private property of the

monarch; it cannot be sold, nor do revenues from it belong to the monarch.521 The

Crown Estate was established by statute522 and is run by a Board of

Commissioners, further evidence that relatively few can have a significant impact

over yet more significant amounts of land. Today, it is run as a business with a

slogan of, ‘Brilliant places through conscious commercialism.’523 Whilst there is a

clearly published strategy (entitled Development Sustainability Principles524), there

is no reference as to how sustainability is defined, nor any reference to Brundtland

or the 17 SDGs. The strategy is couched in terms of endeavouring to develop (and

build) in a sustainable way, rather than considering whether to build actually offers

the best outcome.525 Again, there is a clear argument for the adoption of the

Sustainability Restriction to restrict the extent to which land use was changed (and

possibly developed) with its impact on biodiversity loss and tree cover loss.

Although there are some historical oddities in the way the Crown Estate is run – for

example, its portfolio of land can expand through escheat526 – it is still bound by

common law and statutory restrictions.

521 The Crown Estate <www.thecrownestate.co.uk/our-business/faqs/#whoownsthecrownestate> accessed 25 November 2017.522 The Crown Estate Act 1961.523 The Crown Estate <www.thecrownestate.co.uk/en-gb/our-business/our-strategy/> accessed 13 September 2019.524 The Crown Estate, Development Sustainability Principles Version 3, April 2019 <www.thecrownestate.co.uk/en-gb/our-business/our-strategy/> accessed 13 September 2019.525 ibid.526 Gray and Gray, Elements of Land Law (n2) 67-68; 223-24.

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The Duchy of Northumberland dates back to 1766, when it was created for the

third time for Hugh Percy. The current incumbent, Ralph Percy, is the 12 Duke of

Northumberland and holds an estimated 132,200 acres of land in England and

Wales527 with additional landholdings in Scotland. Northumberland Estates Limited

holds the Ducal estates in trust,528 and the current Duke is a member of the board

of directors. As a limited liability company the only documentation available for

public view are those available through Companies House and, frustratingly, these

reveal nothing in terms of a sustainability policy nor does the company’s own

website. The closest the website has is only a short page on Conservation which

references: the involvement of farmland with environmental schemes such as

Higher and Entry Level Stewardship;529 seeking to improve habitat wherever

possible through planting and other environmental management projects; working

with large scale conservation bodies such as English Nature, Northumberland

National Park, English Heritage and the Environment Agency, and smaller local

groups such as Northumberland Wildlife Trust and Northumberland Rivers Trust;

and using some renewable energy where feasible.530 Whilst this is clearly a for-

profit commercial entity with little visibility in the way of a connection to the land,531

it is clearly one where the acceptance of the Sustainability Restriction would

provoke greater thought around the natural resources that development projects

can damage.

This all supports the idea that if a relatively small number of people acting in their

respective capacities within these organisation become willing and able to accept

the new paradigm – the Land Model and/or the Sustainability Restriction – then

significant inroads could be made to protect land, as part of the environment. With its strong emphasis on conservation, The National Trust could be the most

likely and best proponent to implement the new Sustainability Restriction.

2.5 Connecting the Metaphysical to the Physical

527 Shrubsole (n110) 53; 297-308.528 Company no 05941545.529 See 3.3.4.530 Northumberland Estate Ltd, Conservation <www.northumberlandestates.co.uk/the-estate/conservation/> accessed 28 October.531 Proposed planning application from Northumberland Estates Ltd (on behalf of Northern Commercial Properties Ltd) for a new Premier Inn <www.northumberlandestates.co.uk/news/plans-put-forward-for-new-alnwick-premier-inn/> accessed 28 October 2019.

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It has been argued that whilst the bundle of rights is not perfect it provides an

effective analytical tool532 and the issues surrounding the make-up of the metaphor

are symptomatic of the tendency to seek to disaggregate a concept theoretically.

The advantages in breaking down concepts to enable analysis and comparisons

are discussed in Chapter 5 yet one of the consequences in doing so with property

has been to dephysicalise,533 to disconnect between the concept of property and

the land. It is argued that the connection of humanity to the land exists but is

limited; there is an awareness of the ethical dilemmas that demand an

acknowledgment of the overwhelming problems facing the planet, an awareness of

the finite nature of resources, and the need for change.534 Graham, a major

proponent of the concept of reconnecting to the land, supports this analysis

arguing that definitions of property are ‘dephysicalized’,535 but suggests there is a

personal connection between individuals and their location.536 This is an accurate

observation and it is argued that the commodification of property has led to the

dephysicalisation of the land, consequently exacerbating the ability to re-connect

humanity to the land. Additional support comes from Blandy, Bright and Nield who

point to a psychological attachment to the land;537 Roberts who views Locke’s

property theory as contributing to the metaphysical severance of people and

place;538 and whilst the old phrase, qualified by Gray, ‘an Englishman’s home is

still, by and large, his castle’539 is usually taken to extoll exclusion and possession,

surely it can also reflect the concept of connection between an individual and his

home? This connection has an ethical dimension and could act as the pre-cursor to

a desire to change behaviour as it affects the land.

Arnold’s research similarly challenges the connection between man and the land,

as being, ‘disconnected from the ecological and social environments in which both

532 See 2.2-2.3.533 Nicole Graham, 'This is not a Thing: Land, Sustainability and Legal Education' (2014) 26(3) J Environmental L 395, 396.534 See 4.4.535 Nicole Graham, ‘The Mythology of Environmental Markets’ in Prue Taylor and David Grinlinton (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011) 151 ProQuest ebrary accessed 27 July 2016.536 Graham, ‘This is not a Thing’ (n533). See also Graham, Lawscape(n262) 36-50; 160-202.537 Sarah Blandy, Susan Bright and Sarah Nield, 'The Dynamics of Enduring Property Relationships in Land' (2018) 81(1) MLR 85, 89 with reference to ECHR, Art 8.538 Graham, Lawscape (n262) 46.539 Gray, 'Equitable Property' (n139) 15.

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exist’540 with, ‘no attention to duties, responsibilities, stewardship ethics’.541 Whilst

the web of interests is an appealing and innovative concept, it is argued this is too

complex and multi-faceted to support analysis and aid judicial reasoning. To

illustrate, Arnold proposes that interests are delineated by the characteristics of the

object (in this case the land) and by the interconnected relationships between

people, entities, and institutions with the object (again, the land)542 thereby linking

privately owned homes in a residential community restricted by regulations with

access to the home via public roads, with common properties such as parks etc.

used by all homeowners in the community.543 Here, the web of interests could

hinder judicial analysis; often in litigation, the court is required to consider only the

competing claims of the parties to the litigation.544 Were more parties to be

involved, both time and cost would increase significantly. These elements are

absent from Honoré’s work and do not prohibit such a view being taken; Arnold is

simply providing a more realistic, up-to-date picture of property. However, it is

argued that the Sustainability Restriction, creating a clear connection to the land

provides a more viable option.

2.6 A New Incident - Linking Sustainability to Property in Land

This section will explore the connection between property theory and sustainability

made largely through the work of ecologists such as Aldo Leopold,545 and its

application to this research. Tension currently exists between concepts – property

rights, ecology and sustainability – as to the emphasis that each places on different

issues. It is apparent that there exists a disconnection between how land and the

environment is treated in law. Property and land law are seen very much in terms

of how rights and duties relate to a parcel of land whereas environmental law

adopts a more holistic approach, which inevitably leads to tension between the two

competing claims. Bosselmann gives force to this point with reference to tension

540 Craig Anthony Arnold, ‘Sustainable Webs of Interests: Property in an Interconnected Environment’ in Prue Taylor and David Grinlinton (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011) 168 ProQuest ebrary accessed 27 July 2016.541 Ibid 176542 ibid 168. See also Craig Anthony Arnold, 'The Reconstitution of Property: Property as a Web of Interests' (2002) 26 Harvard Environmental L Rev 281.543 ibid 173.544 Public interest and policy can be factors.545 Leopold (n1). See also Prue Taylor and David Grinlinton (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011) ProQuest ebrary accessed 27 July 2016; see Chapter 3.

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between private property (which is entrenched in our legal system) and

sustainability (which he suggests exists only in environmental legislation).546

However, going forward the fundamental issue is one of ethics – namely, whether

humanity is willing and able to accept change in their relationship with the land.547

This connection between property theory and sustainability is not novel548 but to-

date has taken a different approach to that of this research. Whereas studies have

focused more on looking to the commons,549 reforming national or international

law,550 and/or looking towards public trust,551 or the common good as potential

solutions,552 this research is proposing a more innovative reform of private property

in land.

Property theory and sustainability are threaded together throughout this research in

three key ways. First, sustainability research evidences humanity’s reluctance to

change,553 prompting the idea of a velvet property revolution through a familiar and

recognised paradigm: private property in land. Second, drawn from a considerable

body of literature calling for change554 with an increasing connection being made

between property as a mechanism to care for the land and environmental issues,555

the proposed new restriction will reflect the key principles of sustainability in

relation to the land, as part of the environment. Sustainable development556 is

policy in UK and the subject of legislation in Wales557 but is not yet reflected in the 546 Klaus Bosselmann, ‘Property Rights and Sustainability: Can They be Reconciled?’ in Prue Taylor and David Grinlinton (eds), Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff 2011) 43 ProQuest ebrary accessed 27 July 2016.547 See 4.4.548 Bosselmann, ‘Property Rights and Sustainability’ (n546) 21-42. See also Graham, ‘The Mythology of Environmental Markets’ (n535) 151.549 ibid 21-42.550 Edith Brown Weiss, 'Intergenerational Equity: a legal framework for global environmental change' in Edith Brown Weiss (ed) Environmental change and international law: New challenges and dimensions (United Nations University Press 1992). 1-24; Ross, 'It's Time to Get Serious’ (n55); Bosselmann, ‘Property Rights and Sustainability’ (n546) 25-26; Ross, Sustainable Development Law (n70) 178-210; 311-35.551 Hunter (n30); Harrison C Dunning, ‘The Public Trust: A Fundamental Doctrine of American property Law’ (1989) 19 Environmental L 515; Gray, 'Equitable Property' (n139) 17-36.552 Freyfogle, ‘Taking Property Seriously’ (n164) 51-55.553 See 4.5.554 See 1.1.555 Hunter (n30); Lucy and Mitchell (n43); Johnson (n354) 256; Graham, Lawscape (n262); Bosselmann, ‘Property Rights and Sustainability’ (n546); Graham, ‘The Mythology of Environmental Markets’ (n535).556 See 4.3.2.557 See 6.2.2.

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‘current’ property paradigms and it is argued that this is the mechanism to do so;

there is ethical awareness that humans are a part of the ecological community with

an implicit duty over the land as part of the environment.558 Third, strong

sustainability has provided the approach for this research, with its emphasis on the

needs of the land but also the awareness that it reflects more than just the land.

Chapter 5 provides the theoretical framework for the most critical aspect of this

research, the Sustainability Restriction.

2.7 Conclusions

The theory of property has been explored in this Chapter to provide the

philosophical basis for this research and to answer the sub-research question:

How can the theories of property in land be utilised to promote/support sustainability? This question has been answered through the progress of each of

the sections in this chapter. The nature of property section established property as

being about legally recognised relationships we have with each other in respect of

land in a social, political and economic context. Honoré’s Incidents of Ownership

were then addressed and it was argued that there is merit in the use of the bundle

of rights as a tool of analysis as a means to map the aspects of the three theories

of property and by adding the Sustainability Restriction in the second part of the

comparison that forms the crux of this research in Chapter 6. The next section

pulled together sustainability and property in land and highlighted the need for a

physical connection between humanity and the land: a reconnection post-

reductionism. This research is seeking the most effective model of property to protect land, as a part of the environment, for the future and the sub-research

question has provided the theoretical foundation for the development of the

comparison – the mechanism – to formulate the most effective model of property.

558 Johnson (n354) 256 uses nature, rather than land.

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Chapter 3: Theories of Property – Liberal, Stewardship and Progressive Property

3.1 Introduction

‘Theory matters. At the base of every single property debate are competing

theories of property – different understandings of what private property is’.559

This is the second property theory chapter, developing the hypothesis posited in

Chapter 2 by creating what will become the Sustainability Restriction (in Chapter 5)

to be inserted into Honoré’s Incidents of Ownership as a mechanism to compare

and map the three theories of property (in Chapter 6). Chapter 2 (the theory of

property) provided one limb of the theoretical framework for this research and the

comparative analysis to follow in Chapter 6. This chapter analyses three theories –

the current Liberal paradigm, Stewardship and Progressive Property – selected as

being representative of a cross-section of Western common law perspectives; two

are dominant within the jurisdiction selected by this research (Britain560) whereas

Progressive Property is more usually connected to US case law but has been

selected because it is anchored in common law and seeks to challenge the

exclusion and economic views of property. The liberal concept of property has

been heavily influenced by theorists (such as Locke and Blackstone) and their

absolutist views of property rights. It is argued that Blackstone accepted the

statutory and common law restrictions placed on property but that these restrictions

have been expanded significantly since the 18th Century. Stewardship emphasises

a duty to the land either within private property or as a replacement paradigm and

Progressive Property encourages increased social awareness and equity within it.

The economic and exclusionist perspectives of property have not been included

with the reasoning behind this discussed at 2.2.1 and 2.3. To advance a valid

comparison, the points of comparison must be clearly defined561 and this is done

through the following sub-research question: what are the rights and duties demonstrated by the three selected theories of property? Where there are

unaccounted elements of the models, a hypothesis will be made to support the

analysis. Each of the three theories will be analysed to establish the rights and

duties, the elements necessary to enable the comparative analysis in Chapter 6. In

turn, this connects to the main research question: what is the most effective

559 Alexander and Peñalver (n164) xi.560 See 6.3.561 See 1.2.10.

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model of property to protect land, as part of the environment, for the future thereby providing the basis for establishing the most effective model. In Chapter

6 the rights analysis of each of the three theories is subsequently used to formulate

a model to establish that Wales is the best jurisdiction to support the most effective

model into the future – the new Land Model. 562

Each sub-section of this chapter will briefly touch on context, and then examine the

extent and nature of the rights, duties and integral ethics contained in the three

theories. Ethics are a critical element of this research (both implicit and explicit)

and are discussed more fully in Chapter 4; they are what drives humanity and what

will be needed to implement the most effective model – the Land Model – proposed

by this research. A change is needed in the relationship between humanity and the

land; a two-part process: a fundamental shift in perception to accept that change is

needed (acknowledgment) followed by having the willingness to act accordingly

(action).563 Based on humanity’s reluctance to change (discussed in Chapter 4) this

will be supported by an incentive scheme (discussed at 6.4.2).

3.2 The Liberal Concept of Property

The current concept of property in Britain, the traditional liberal concept, is a

product of its history and legal commentators, much of which begins with theorists

from the 17th and 18th centuries.564 Whilst theorists such as Locke and Blackstone

provide the foundation (seemingly assuming ownership to be absolute) the current

liberal paradigm is very much coloured by English history, in particular the Victorian

era which saw a significant shift from county to town living, subsequently evolved

further by more recent legislation and case law.

There is no doubt that historical influences in England have shaped the contours of

ownership. The England and Wales Census of 1861 recorded 972,836 landowners

(in England and Wales outside London) of which 710 aristocratic families held

more than a quarter of the acreage recorded.565 Whilst it has been observed that

this quantification of population and landholding was not always accurate,566 there 562 See 6.3.12.563 See 4.4.564 Carol M Rose, ‘Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory’ (1990) 2 Yale J of L and the Humanities 37, 37.565 Peter H Lindert, 'Who Owned Victorian England?; The Debate Over Landed Wealth and Inequality' Agricultural History (1987) 61(4) 25, 29.566 ibid 31.

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can be little dispute that the land was held for the most part by aristocrats and the

upper classes.567 In contrast, data indicates that today 65% of people in the UK568

are homeowners reflecting the social and economic developments over the last

150 years. The Major Estates are discussed at 2.4 and how these could apply in

this context must be considered. Britain comprises a landmass of 37 million acres,

of which over 4.6 million acres are held by just 20 landowners,569 and a further

565,720 acres by 20 titled men (personally or through a trust)570 together with the

Crown571 who historically all but dominated our legislature.572 This is no longer the

case.573 Whilst there have been some significant changes, there are three distinct

points here. First, several of these aristocratic holdings have been significantly

diminished, for example, the Duke of Sutherland held over 1.3 million acres in 1872

compared to 12,000 acres today.574 Yet this is still a significant proportionate

amount of land and connects to the second point, that huge amounts of land are

still in the hands of relatively few so if today’s major landowners acknowledge that

change is needed and then act accordingly – the two part change sought in this

research – a significant proportion of land in Britain would benefit. Given this

background, the scope for the change sought in this research through the major

estates has a much smaller (and similar) audience (albeit through trusts, private

companies and government departments) than might have been anticipated with,

potentially, a more realistic scope for success as a consequence. Finally, whilst the

numbers of private landowners has increased (arguably reflecting social change

and a more equal division of assets) they remain private landowners.

Consequently, the private property paradigm remains dominant, which could be

attributed to either the absence of a perceived viable alternative, or reflecting an

unwillingness to change; something echoed in sustainability literature (as

discussed at 4.5).

3.2.1 The Historical Context

567 This thesis does not seek to analyse or discuss the social groupings or the class structure.568 See 2.2.1.569 Cahill (n110) 18-19. 570 ibid 107. See also Shrubsole (n110) 306-07.571 ibid 391, 2001 data.572 ibid 29 the House of Lords was entirely made up of landowners and around 70% of the House of Commons represented landowning interests.573 House of Lords Act 1999. A review of the Register of Member Interests reveals little in the way of significant landholdings beyond residential and secondary home <https://publications.parliament.uk/pa/cm200102/cmregmem/memi02.htm> accessed 16 January 2018.574 Cahill (n110) 18, 40.

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This section will draw predominantly on the work of two key English theorists,

Locke and Blackstone, who arguably created the justification and detailed the form

of property in land in post-feudal Britain. Whilst Locke in On Property proposes a

theory justifying the appropriation of land from the common there is merit in

drawing on sections of Two Treatise for several reasons. First, he is widely credited

with influencing the US Constitution575 (connecting to the analysis of the US

Takings at 3.4.2). Second, he is also credited with creating the property paradigm

still in existence in Britain today576 and considered by many to be the epitome of

Liberalism.577 Third, On Property provides an ardent defence of private property

rights, selected as the primary focus in this research.578 The argument for a

modification of the existing paradigm to reflect humanity’s resistance to change is

on the face of it a de facto defence of private property. However, the aim here is to

use private property to achieve a velvet property revolution,579 to bring change from

within a known and familiar form. Finally, Locke’s ‘theory is widely regarded as the

most interesting canonical discussions of property’580 because much theoretical

analysis has a direct connection with how one chooses to interpret it (for example,

illustrated in relation to Locke’s ‘inclosure’ and exclusive possession).

The argument for including Blackstone in an historical analysis is justified for

similar reasons. First, whilst his Commentaries were intended to provide an

accessible and complete overview of English common law, they are still cited as

the foundation of absolute property rights; the ‘sole and despotic dominion’.581

Second, Blackstone was frequently cited582 and influenced Madison583 (also

connecting to the analysis of the US Takings at 3.4.2). Finally, similar to Locke,

Blackstone provides an account of the origins of property rights,584 and within

Blackstone’s concept of exclusive possession it is implicit that there will be some 575 Donald D Doernberg, 'We the People: John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action' California L Rev (1985) 73(1) 52.576 Robert Nozick, Anarchy, State and Utopia (Blackwell 1974) 26; Waring (n290); Howe, ‘Lockean natural rights’ (n69) 36.577 C B Macpherson in the Editor’s Introduction to John Locke, Second Treatise of Government (first published 1690, ed C B Macpherson, Hackett Publishing 1980) vii. See also C B Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon 1962); Howe, ‘Lockean natural rights’ (n69).578 See 1.2.2.579 See 1.2.2; 1.4.580 Jeremy Waldron, ‘Property and Ownership’ (n155) s2.581 Blackstone (n245) Book II, ch 1.582 Early American Republic.583 Carol M Rose, ‘Canons of Property Talk, or, Blackstone's Anxiety’ (1998) 108(3) The Yale L J 601, 601-02.

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distribution of property rights.585 Whilst all of these points are compelling, the focus

will be directed towards the aims of writing their respective texts (to create and

protect private property) and what can be drawn from both in terms of rights and

duties to form the basis of analysis.

There is a vast sea of literature analysing Two Treatise and over 300 years later

debate still rages over its interpretation. Locke’s work is certainly not without

difficulties in interpretation, described as leaving one with, ‘a great sense of

puzzlement’586 in that there are ‘inconsistencies and partially explained ideas’,587 all

of which make it possible to justify a number of interpretations.588 Some of the more

complex issues such as Labour Mixing589 and the Introduction of Money590 will not

be addressed in detail here, as they do not impact on the context or an

interpretation as to the rights and duties within the Liberal paradigm. Context here

is important because, as mentioned above, property does not exist in a vacuum591

and whilst Locke clearly remains relevant today, interpretation must first and

foremost be placed within the context of that particular period of history and the

three dominant themes of the time: religion, politics and economics. Locke sought

to justify his political views and provide reasoning for appropriation of private

property from the common. His political views were clear. Two Treatise was

published in 1690, just two years after the Glorious Revolution592 and it sought, ‘to

justify a particular constitutional revolution’593 specifically addressing two key

political issues: first, whether the heir to the throne could be excluded on religious

grounds;594 and second, the issue of the divine right of kings.595 Religion and

584 Carol M Rose, 'A Dozen propositions on Private Property, Public Rights, and the New Takings Legislation’ (1996) 53 Washington and Lee L Rev 265, 269.585 Rose, ‘Canons of Property Talk’ (n583) 603.586 Karen Vaughn, 'John Locke's Theory of Property: Problems of Interpretation' Literature of Liberty: A Review of Contemporary Liberal Thought (1980) III(1) 7 <http://oll.libertyfund.org/pages/locke-on-property-a-bibliographical-essay-by-karen-vaughn> accessed 19 March 2015.587 ibid.588 Karen I Vaughn, ‘John Locke And The Labor Theory Of Value’ (1978) 2(4) J of Libertarian Studies 311, 311.589 Locke (n291) s27.590 Locke (n291) s45-51.591 Clarke and Kohler (n103) 3; Little (n146) 49. 592 Culminating in the Bill of Rights 1688. 593 Macpherson, The Political Theory of Possessive Individualism (n577) vii, Two Treatises was written two years after the Glorious Revolution in 1688.594 The Exclusion Crisis 1697-81.595 See Glenn Burgess, 'The Divine Right of Kings Reconsidered' (1992) 107(425) The English Historical Rev 837.

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politics are intertwined, with the former often used as justification for the latter.596

Religious fervour formed a significant part of the contemporary political debate,

evident here in a religious justification for political motives. Two Treatise was

written in the context of this debate597 and was Locke’s platform for a written

response to Filmer, an Adamite.598 The Adamites believed in the absolute right of

the sovereign and argued in favour of a natural right to exercise sovereignty over

one’s property.599 Locke, a Whig supporter,600 took the opposing view,601 aiming for

more of a constitutional monarchy to protect life, liberty and estate.602 At the time

there was a widespread paranoia of ‘popery’,603 beneath which was undoubtedly

the associated fear of being sucked into a European power struggle.604 Locke’s

writing has an, ‘undeniably theological flavour’605 which is not unusual for any writer

in the 17th century; for example Winstanley (described as the first true socialist606)

writing forty years earlier couched his prose in biblical terminology.607 The Lockean

provisos all reflect morality, ethics and spirituality: the sufficiency proviso608 (to

avert harm to others); the waste proviso (not to spoil what God has provided); the

charity obligation (to protect human life); and the non-abuse obligation (not to harm

596 Henry VIII’s divorce from Catherine of Aragon 1533; The Spanish Armada 1588.597 John Salter, 'Hugo Grotius: Property and Consent' (2001) Political Theory 2(4) 537, 538 and 548. See also Clarke and Kohler (n103) 82; Macpherson (n577) viii.598 ibid 538; 548 Adamites believed God bestowed private property on the first man, Adam and his descendants, the monarchy. See also Clarke and Kohler (n103) 82; Macpherson (n577) viii. See also Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton UP 1986) 260. 599 Tully (n296) 172.600 In the 1680s the Whig Party supported a constitutional monarchy, a protestant succession, civil liberty, religious toleration and rule of parliament. See also C B Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon 1962) 194 comments that the desire was for ‘sanctity of individual property’.601 Macpherson (n577) ix. See also Tully (n296) 172.602 David Held, Political Theory and the Modern State (Blackwell 1989) 20-21.603 'Popery' was a belief that Catholics were actively plotting the overthrow of church and state.604 Henry VIII’s wars with Francis I, for Pope Julius II; Spanish Armada against Phillip II of Spain; Charles I war with France. 605 Waldron, The Right to Private Property (n125) 142.606 Tom Hazeldine, Foreword in Gerrard Winstanley, A Common Treasury (first published 1648, Aporia Press 2011) xxii.607 Gerrard Winstanley, A Common Treasury (first published 1648, Aporia Press 2011) 41-55.608 Joseph William Singer, 'Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity' (2014) 86(3) Indiana L J 763, 763.

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oneself).609 Locke sought to justify 610 (albeit with political motivation and after the

event) the acquisition of private property rights as being, ‘morally justifiable that

those who take resources from their natural state … to keep them for themselves

to the exclusion of all others’.611 For him, the land was a resource and an asset but

the key point here is that the land being ‘inclosed’ was common land used for

communal activities such as cattle grazing612 and was not in reality being taken out

of the State of Nature as Locke implies613 but to justify the ‘ownership’ of land by

the aristocracy and the gentry.614 Private property, for Locke, was in the public

interest and the reason man615 entered society was to benefit from political

protection.616

In contrast, it is argued that Blackstone was not as controversial as Locke simply

because he was not attempting to justify or theorise617 but to provide a

comprehensive commentary of the law in England at that time, to be used in

support of academic studies of the law.618 Bentham has been described as

Blackstone’s ‘severest critic’619 perhaps not (as has been suggested) because

Blackstone did not seek to reform620 but because they differed in opinions as to the

speed at which reform should take place.621 Blackstone wrote approximately 70

years later than Locke622 but, whilst the political context was vastly different, it

nevertheless again played a fundamental role.623 England had been victorious in 609 Romans 6:23; John 10:10; Corinthians 6:19-21 The New English Bible (OUP 1992).610 Clarke and Kohler (n103) 81.611 ibid 81.612 Between 1604 and 1914 over 5,200 Enclosure Bills were enacted by Parliament enclosing common land and open fields (approximately 6.8 million acres) <www.parliament.uk/about/living-heritage/transformingsociety/towncountry/landscape/overview/enclosingland/> accessed 31 March 2017; Hazeldine (n608) viii-xviii.613 ‘[T]he rights in common which were swept away by the 1925 legislation’ Blandy (n288) 168.614 Land Tax 1692-1963.615 To reflect Locke’s use of Man and to reflect contemporaneous thought – married women could not own land until the Married Women’s Property Act 1882616 Waldron, The Right to Private Property (n125) 162; Jeremy Waldron, The Rule of Law and the Measure of Property (CUP 2012) 27.617 Richard A Posner, ‘Blackstone and Bentham’ (1976) 19(3) The J of L and Economics 569, 570.618 ibid 572-73.619 ibid, 569.620 ibid 589.621 ibid 590-96.622 Two Treatise published in 1689, Commentaries on the Laws of England published in 1765-70.623 Posner (n617) 571.

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the Seven Years War,624 the controversial Royal Proclamation of 1763 had been

issued625 and the build up of tension that culminated in the American Wars of

Independence626 was beginning. Arguably, as a result of this political tension and

nationalistic fervour, the protection of land and property rights may have been

viewed from a national as well as private perspective but the importance of private

property rights is undeniably evidenced by Blackstone:

The third absolute right, inherent in every Englishman, is that of property:

which consists in the free use, enjoyment, and disposal of all his

acquisitions, without any control or diminution, save only by the laws of the

land.627

What is clear is that within this context there was no awareness of environmental

issues. It is argued that Blackstone was not quite such an absolutist as appears;628

he acknowledged that this absolute right to private property was tempered by (the

then) English Law, with the key words being, ‘save only by the laws of the land’629

which clearly acknowledge that the right to exclusive possession was not

absolute.630 Whilst there is no doubt that the restrictions envisaged by Blackstone

in the 1760s were considerably less onerous than those of today631 there is an

acknowledgment that, for him, there were still some restrictions and this will be

explored further below.

3.2.2 Duties within the Liberal Paradigm

Blackstone’s Commentaries do not contain a duty in relation to the land because

(as evidenced by Honoré’s categorisation of ownership) there is no positive duty to

the land only a duty to prevent harm.632 This is the missing element that is needed

to enable the better protection of the land and prevent some of the issues

outlined.633 There is an argument that this duty to prevent harm could be

interpreted as a duty to the world at large not to do anything that would harm the

624 1754-63.625 Temporary to deal with the management of the French colonies following the Seven Years War.626 1775-83.627 Blackstone (n245) Book 1, Ch1, 138. 628 Carol M Rose, ‘The Moral Subject of Property’ (2007) 48 William and Mary L Rev 1897, 1904.629 Blackstone (n245) Book 1, Ch1, 138. 630 Rose, ‘The Moral Subject of Property’ (n628) 1904.631 For example Civil Aviation Act 1982.632 See 6.3.9.633 See 1.1.

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land but it is argued that whilst Honoré mentions that one, ‘must prevent others

using the thing to harm others’634 this is stretching Honoré’s intention, which is

supported by his example of a car demolishing a gate.635 Such a duty is too narrow

to be effective (as it is intended to cover specific issues such as not using your car

to run someone over which would arguably be the purview of criminal law whilst

Honoré’s gate scenario would fall within the law of trespass) and is not intended or

capable of being used as a defence to deforestation or biodiversity loss. Today the

current Liberal paradigm contains some duties in relation to the land but these

arise typically as a result of planning applications,636 only therefore coming into play

when there is development or re-development work, and can range from a duty to

complete a project subject to planning conditions to the need for an Environmental

Impact Assessment (‘EIA’).637 This change derived from post-war planning

legislation when there was a clear need for development and to re-build; the

Planning Act 1947 strengthened the level of state control over privately owned

land638 and arguably connected to the shift in values, the beginning of the welfare

state. There is scope to argue that the planning legislation is moving the

boundaries of the paradigm beyond the traditional Liberal paradigm where more

elements of duty will come into being. This could be part of the evolution of the

liberal paradigm or seeking to move away from the Liberal paradigm. The

connection of environmental protection with regulation of how land is used and

development is clear,639 and from an ethical perspective McGillivray argues that

development gains should no longer take priority over conservation and that

development should be justified, ‘only if their impacts can be reduced to a level

which is deemed unproblematic’.640 The process of EIAs in the context of town and

country planning in England is governed by the Town and Country Planning

(Environmental Impact Assessment) Regulations 2017.641 Schedules 1 and 2 set

out the types of development which are subject to an EIA, and largely apply to

large-scale commercial development with a 5 stage process – screening, scoping,

preparing an environmental statement, making a planning application, and

consultation and decision making. There is provision for consideration to be given 634 Honoré (n164) 174-75.635 Honoré (n164) 174.636 Town and Country Planning Act 1990. 637 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017.638 Jane Holder and Maria Lee, Environmental Protection, Law and Policy (2nd edn, CUP 2007) 480-81.639 ibid 504; 505.640 McGillivray, 'Mitigation, Compensation and Conservation’ (n481) 1. 641 Directive 2011/92/EU (n480).

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to, ‘the use of natural resources, in particular soil, land, water and biodiversity’642

which arguably would require consideration be given to tree cover loss, biodiversity

loss and change of land use. However, this research argues that the Sustainability

Restriction has one significant advantage over the use of planning legislation, that

it can arise by agreement (voluntarily and/or in response to a financial incentive)

between a landowner and an appropriate regulating body,643 without the need for

development or re-development to be taking place. In addition, consideration

should be given to the application of the Sustainability Restriction – for any land,

not just those included within Schedules 1 and 2 – with the result that any

development of land subject to the Sustainability Restriction would need to

evidence (as part of a planning application) that consideration had been given to

tree cover loss, biodiversity loss and a change in land use. In practice, this could

be achieved by an amendement to the exisiting planning legislation.

3.2.3 Rights within the Liberal Paradigm

This section will analyse the rights contained within the current Liberal paradigm

today. On Property will be touched upon to argue that whilst Locke’s aim was to

justify appropriation, he references the existence of rights and duties. However,

more pertinent is Blackstone, as he sets out what he perceives as being the rights

and duties existing in the 1760s which, it is argued above, accepted the existence

of statutory and common law constraints. However, the Blackstonian model has

evolved and it is the current version that will form the basis of the Liberal paradigm

put forward for comparison in Chapter 6.

In On Property, Locke provokes debate centred on labour mixing644 and the

introduction of money645 (the detail of both being beyond the scope of this

research) however, this is of less relevance in terms of whether Locke clearly

provides an outline of what a landowner, once he has appropriated land, may and

642 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, s6(2). See also The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017.643 See 6.4; 6.4.3.644 Karl Olivecrona, 'Locke's Theory of Appropriation' (1974) 24 Philosophical Q 220, 224-26, 229; Jeremy Waldron, 'Two Worries about Mixing One's labour' (1983) 33 The Philosophical Q 37, 37-38, Lucy and Mitchell (n43) 573-74; Nozick (n576) 174-78.645 Howe, ‘Lockean natural rights’ (n69) 37; Stephen Buckle, Natural law and the Theory of Property (Clarendon 1991) 155; Macpherson, The Political Theory of Possessive Individualism (n577) 203.

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may not do with it. On Property contains a right to appropriate, ‘inclose’ and claim

exclusive possession. Irrespective of opinion as to whether the sufficiency proviso

– ‘enough, and as good’,646 the notion that a person will take only what he needs

for himself (implying the right to appropriate) thereby leaving enough for others (a

restriction as to how much) – survives the introduction of money or even applies at

all,647 it lays the justification and foundation for the idea that man can appropriate

and inclose for himself, justifying the existence of private property. Locke describes

the spoilage or waste proviso, ‘as much as any one can make use of to any

advantage of life before it spoils’ and, ‘Nothing was made by God for man to spoil

or destroy’. 648 This will be considered in the context of this research not from the

question as to whether it can be construed as surviving the introduction of money

but whether it provides any rights for the landowner..The phrase, ‘Nothing was …

or destroy’649 presents a challenge. If you believe that the earth was given by God

(or, even discounting the existence of a god, given to humanity) the ethical duty not

to spoil or destroy remains. Clarke and Kohler correctly point out that this proviso

could work equally well if God were removed from the equation,650 which would

leave an ethical duty or obligation not to spoil or waste; whether it is God or a

person’s morality it forms the basis of a decision to act. It is argued that this is

potentially an ethical or moral view of Locke that man must not waste or spoil the

land but there are two elements. First, looking at the contemporaneous context,

remember that Locke was seeking to justify something that had already happened;

land had been appropriated from the common and enclosed by individuals for

personal gain. Second, as argued above (at 2.3), the notion of laying waste

potentially being a good thing and the idea of leaving to spoil are distinct. This has

a strong connection to the sustainability literature below (at 4.5) addressing

humanity’s need to reduce consumption. Finally, in response to the rights and

duties analysis, it does not add anything in the way of a right for the landowner

beyond appropriation.

The charity proviso is contained within Locke’s earlier work (the First Treatise) and

has not traditionally been viewed as a proviso. Waldron links the waste proviso to

the charity proviso651 and Howe argues it should be, ‘the second limitation placed

646 Locke (n291) s33.647 Howe (n401) 37.648 Locke (n291) s31.649 ibid s31.650 Clarke and Kohler (n103) 89.651 Waldron, The Right to Private Property (n125) 216.

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on property rights’,652 so it must therefore be considered. However, it is argued that

this is stretching the concept and even accepting a limit clearly presents difficulties

in practical terms around how it could practically operate. The proviso states that:

God the Lord and the Father of all, has given no one of his children such a

property … but that he has given his needy brother a right to the surplusage

of his goods … charity gives every man a title to so much out of another’s

plenty as would keep him from extreme want, where he has no means to

subsist otherwise.653

Howe accurately describes this as a more onerous requirement than the

sufficiency proviso as it limits the right to exclude third parties from the property,654

one of the fundamental principles of the liberal property model; and, perhaps even

a positive duty on the landowner to ensure that someone else in need has access

to sufficient of the property over and above what is needed by the owner.655 This is

linked to the power of life over another,656 that property rights must never prevail in

the face of need657 and was possibly included based on Locke’s faith, sense of

morality and contemporaneous culture.658

Blackstone reflected the current thinking that the ‘right of property’ was held, ‘in

total exclusion of the right of any other individual in the Universe’;659 the classic

Liberal paradigm. However, as Rose has pointed out, this is a right to choose to

exclude and it is the right to choose that yields power.660 Blackstone presents an

illustration of the extent of this power:

So great moreover is the regard of the law for private property, that it will

not authorize the least violation of it; no, not even for the general good of

the whole community. If a new road, for instance, were to be made through

the grounds of a private person, it might perhaps be extensively beneficial

652 Howe, ‘Lockean natural rights’ (n69) 45.653 Locke (n291) s42.654 Howe, ‘Lockean natural rights’ (n69) 45.655 ibid 45.656 Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law (Hart Publishing 2004) 41; Waldron, The Right to Private Property (n125) 216. ibid 41.657 Waldron, The Right to Private Property (n125) 216.658 The Act for the Relief of the Poor 1597, Elizabethan Poor Law 1601 and Poor Relief Act 1662, Poor Act 1697 indicates some awareness.659 Blackstone (n245) Book 2, Ch1.660 Rose, ‘Canons of Property Talk’ (n585) 604.

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to the public; but the law permits no man, or set of men to do this without

consent of the owner of the land.661

Whilst today the community would arguably be well served by building such a

road,662 the need for such a road may well have less meaning for Blackstone at that

time. However, Blackstone is clear that it is the legislature alone that, ‘can, and

indeed frequently does, interpose, and compel the individual to acquiesce,’663

subject to appropriate compensation, arguably a parallel to today’s compulsory

purchase orders. For Blackstone the legislature can and will intervene in a man’s

absolute right to exclude; as Burns suggests, the government can interject

between the laws of nature and a man’s property rights.664

When considering the rights (and duties) within the current Liberal property

paradigm consideration must be given to the rights afforded to a landowner under

the European Convention on Human Rights (‘ECHR’) incorporated into law under

the Human Rights Act 1998 (‘HRA’).665 The two pertinent articles to consider are

Protocol 1 Article 1 (‘P1A1’) and Article 8. P1A1 provides that everyone has the

right to peaceful enjoyment and cannot be deprived of possessions except in the

public interest and subject to the conditions provided for by law and by the general

principles of international law. On the other hand, Article 8 provides a right to

respect for private and family life and home with no interference by a public

authority except where necessary in the interests of national security, public safety

or the economic well-being of the country, for the prevention of disorder or crime,

for the protection of health or morals, or for the protection of the rights and

freedoms of others. Looking first at Article 1, this provides a positive right to enjoy

possessions, which is not specifically defined but is frequently seen in terms of

economic value666 and encompasses immovable and movable property and other

proprietary interests.667 Here there is a positive and clearly stated right to enjoy

661 Blackstone (n245) Book 2, Ch1, 139.662 Robert P Burns, 'Blackstone's Theory of the Absolute Rights of Property' (1985) 54 U Cincinnati L R 67, 74.663 Blackstone (n245) Book 2, Ch1, 139.664 Robert P Burns, 'Blackstone's Theory of the Absolute Rights of Property' (1985) 54 U Cincinnati L R 67, 79.665 HRA, s3 requires legislation to be read, so far as possible, in a way compatible with ECHR but does not enable courts to re-write legislation McDonald v McDonald [2016] UKSC 28, para 69, But there is a difference between interpretation, which is a matter for the courts and others who have to read and give effect to legislation, and amendment, which is a matter for Parliament’. 666 Deborah Rook, Property Law and Human Rights (Blackstone 2001) 97.667 European Court of Human Rights, Guide on Article 1 of Protocol No 1 to the European Convention on Human Rights (1st edn, Council of Europe 2018) 7.

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property subject to the public interest (similarly not defined) but which provides a

justification for a State depriving someone of possessions on the basis of benefit

for the general community. In order to do so the state must demonstrate that the

measures are proportionate.668 The case of R (Mott) v Environment Agency669

centred around the Environment Agency’s decision to impose conditions on a

salmon fishing licence, with Mott seeking payment of compensation.670 Whilst the

right to fish may appear to have minimal relevance to the research aim of better

protecting land, as part of the environment, the right to fish was accepted as a

possession under Article 1671 and the extent to which this right exists was

discussed. In Mott the proportionate test was considered to be a, ‘fair balance …

between the demands of the general interest of the community and the

requirements of the protection of the individual’s fundamental rights’,672 arguably

not dissimilar to the public use test in the Fifth Amendment.673 In Mott, Hamer v

Belgium674 was cited as illustrative of the emphasis placed on the environment, in

which an order was granted for the demolition of an unpermitted holiday home in a

woodland area. In Mott the court held that the order was a control, not an

expropriation and that it was a fair balance.675 Some general principles can be

distilled from this but as with any matter before a court the decision is dependent

upon the specific facts in each case.

Article 8 affords a right of access to the home, of occupation of the home (including

peaceful enjoyment), not to be expelled or evicted, and protection against an

intrusion into the home by the State (subject to intrusions for legitimate purposes).

Critically, it does not provide an absolute right to have a home.676 In this Article,

Home is defined as the place where a person lives on a regular basis.677

Interference by a public authority can take the form of a positive act or a failure to

act. Legitimate purposes can include national security, public safety, the economic

well being of the country, the prevention of crime, the protection of health and the

rights and freedoms of others.678 Proportionality was initially considered in looking

for evidence that local authorities correctly followed statutory regimes devised by 668 See Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 [74].669 [2018] UKSC 10.670 ibid [15].671 ibid [17].672 ibid [17] referencing Hutten-Czapska v Poland (2007) 45 EHRR 4 [167].673 See 3.4.2.674 [2008] 21861/03.675 [2018] UKSC 10, [30].676 Chapman v UK [2001] ECHR 27238/95. 677 See Gillow v UK [1986] ECHR 9063/80. 

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Parliament679 that would not be in breach of human rights. The argument was that

the statutory regime had already weighed up the competing claims of occupier and

landlord and came down on the side of the latter but this has evolved to the

proportionality of evicting someone from their home.680 Proportionality is now the

main deciding factor and courts must pay due attention to the importance of

home.681 Neild has commented that this creates a distinction between tenants in

the public and private sector and the balancing of private parties is a matter for

Parliament;682 a reasonable point given the current issues with housing.683

3.3 The Stewardship Theory

Today, Stewardship theory exists in various guises but the fundamental issue in

scholarship is that as a concept it lacks clarity and certainty, and is open to

interpretation. Roach et al describe Stewardship as, ‘ambivalent, precarious,

fraught with ironies and ambiguities’684 and as, ‘a multifarious concept rife with

ambiguities and ambivalence’.685 What is clear is that there is some form of

obligation together with some form of constraint as to use of the land.

Stewardship is fundamentally a duty-based obligation albeit described in different

language.686 To illustrate, Lucy and Mitchell describe it as, ‘land holding subject to

responsibilities of careful use, rather than the extensive rights to exclude, control

and alienate’.687 Part of the lack of clarity has arisen because the theory has

678 Khatun and 180 others v UK [1998] 26 EHRR CD 212 United Kingdom did not violate Article 8 in because the State did balance the competing interests and resolved that public interest outweighed the inconvenience of those individually affected.679 Harrow London Borough Council v Qazi [2004] 1 AC 983; overruled in Manchester City Council v Pinnock [2010] UKSC 45.680 Connors v UK [2006] 2 AC 465.681 See Southend-on-Sea Borough Council v Armour [2014] EWCA Civ 231.682 Sarah Nield, ‘Shutting the door on horizontal effect: McDonald v McDonald [2016] UKSC 28; [2016] 3 WLR 45’ (2017) 1 Conv 60, 70-71.683 Secretary of State for Communities and Local Government, Fixing our broken housing market Cm 9352.684 Catherine M Roach, Tim I Hollis, Brian E McLaren, Dean L Y Bavington, 'Ducks, Bogs and Guns: A Case Study of Stewardship Ethics in Newfoundland' (2006) 11(1) Ethics and the Environment 43, 47; 66.685 Barritt (n86) 2.686 Karp (n20) 737 duty of land stewardship; Lucy and Mitchell (n43) 584 basis for land use; Roach, Hollis, McLaren, Bavington (n684) 48 caring for or being responsible for a local area or resource; Howe (n401) 40 community interests; Barritt (n86) 3 duty to a valuable or scarce resource.687 Lucy and Mitchell (n43) 584.

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certainly been subject to a variety of interpretations.688 It has been suggested that

Stewardship already exists in aspects of the law689 and, in the alternative, that it

does not exist; and that it could impose obligations on the landowner in several

ways. First, that the relationship might be mapped onto the existing proprietary

one;690 second, by amending the proprietary relationship and replacing private

property with public, common property or a new paradigm;691 and finally, by

replacing the current paradigm with pure stewardship.692 The vague nature of

Stewardship within scholarship means there is very little to distinguish between

those who advocate Stewardship as a paradigm replacement and those who see

Stewardship as an ‘add-on’ to private property.

The distinction between the steward being the landowner or some form of manager

is sometimes blurred693 but for the purpose of this research the steward will be

considered to be the owner of the land. This selection has been made for several

reasons. First, to reflect the choice of private property in this research as the

mechanism for change; this research is proposing to amend the private property

paradigm to form the new Land Model within the existing framework by adding the

new Sustainability Restriction to impose a duty on the landowner – here the fact

that the duty is on the landowner is critical as it focuses on the holder of the

superior title and ultimate responsibility. Second, to acknowledge that this is the

primary mode of landholding694 within the selected geographical area for this

research: Britain. In Chapter 6 it is shown that whilst the new Land Model is the

most effective695 it is the insertion of the Sustainability Restriction that leads to the

most significant impact regardless of whether it is attached to the Liberal,

Stewardship or Progressive Property model; it is the acceptance of the restriction

on levels of use itself which is fundamental. This would seem to be a parallel 688 Clare Palmer, ‘Stewardship: A Case Study in Environmental Ethics’ in Robert J Berry (ed), Environmental Stewardship: Critical Perspectives - Past and Present (Continuum International PublishingGroup Ltd 2006) spiritual; Leopold (n1) ecological.689 McGillivray, 'Water rights and environmental damage’ (n119). See 3.3.4.690 Barritt (n86) 5.691 Lange and Shepheard (n119) 217. See also Lynton K Caldwell, 'Rights of Ownership or Rights of Use? - The Need for a New Conceptual Basis for Land Use Policy' (1974) 15 William and Mary L Rev 759. 692 Lucy and Mitchell (n43) 567.693 ibid; Howe, ‘Lockean natural rights’ (n69) 37 does not distinguish between the owner and steward. 694 Cahill (n110) 18. HM Land Registry <www.gov.uk/government/organisations/land-registry/about> accessed 30 March 2019, 86% of the landmass in England and Wales is Registered.695 See 1.2.1.

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argument; it is the acceptance of a duty, regardless of whether it was in a new form

or mapped onto the existing paradigm, which prevails in altering the model. This

would support an argument that the various ways proposed for incorporating or

replacing Stewardship into the property paradigm are of less relevance.

In analysing Stewardship, all opinions will be incorporated to provide as

comprehensive an image of this ‘ambiguous’696 theory as possible, to produce a

model for the rights based analysis in Chapter 6. To answer the sub-question what are the rights and duties demonstrated, Stewardship will be analysed in such a

way as to provide the elements to be put forward for comparison.

3.3.1 The Origins of Stewardship

The concept of Stewardship has a long history (arguably with foundations in

classical literature and philosophy) that will be explored to put it in context and to

highlight the ethics within the theory. Links made to classical philosophy697 may be

overstated. Whilst Plato criticised Athenian political culture of the time,698 his world

was dramatically different to the world today699 and there is no suggestion that

Plato’s farmer would consider, in exercising his rights, his neighbour and/or future

generations.700 Yannacone701 connects Stewardship back to Rousseau702who

imagined that all property be treated as communal.703 Plato too imagined

communal property but only for those owning property who could participate in

political life and become members of the elite 704 Proudhon, who famously

connected slavery to murder and property to theft,705 reflected views that need to

be considered in the context of revolutions706 although he accepted property as one

of the inalienable rights alongside liberty, equality and security; the right to property 696 Roach, Hollis, McLaren, Bavington (n684) 43; 47; 66.697 Lucy and Mitchell (n43) 583.698 Breen (n155) 6 ownership of private property facilitated participation in democratic debate. 699 For example Athenian acceptance of servitude and the inequality between the class structure created in Plato, The Republic.700 Desmond Lee in the Introduction to Plato, The Republic (Desmond Lee trn, 2nd edn Penguin Books 1987) 21.701 Victor John Yannacone Jr, 'Property and Stewardship - Private Property plus Public Interest Equals Social Property' (1978) 23 S Dakota L Rev 71, 80.702 ibid 80. 703 Jean-Jacques Rousseau, The Social Contract and other Later Political Writings (Victor Gourecitch ed, CUP 1997) 54, ‘the state is master of all their goods’. 704 Breen (n155) 7-10.705 Proudhon (n268) 13-14.706 The French Revolution 1789 followed by the French Revolution 1848.

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derived from occupation and labour, similar to Locke’s notion of labour mixing.707

Proudhon remains relevant today in his observation that, ‘Property is the

Exploitation of the weak by the strong; communism is the exploitation of the strong

by the weak’,708 which could be interpreted as a reaction to Locke’s justification for

the enclosure movement. Marxist ideals709 that called for the, ‘Abolition of property

in land and application of all rents of land to public purposes’710 also had a

significant impact politically on the mode of land holding;711 and the Communist

Manifesto subtly references Locke, ‘We … have been reproached with the desire

of abolishing the right of personally acquiring property as the fruit of a man’s own

labour’,712 indicating an aim to return to something similar to Locke’s State of

Nature perhaps referencing the time before the enclosure movement. However,

whilst the notion of communal property has an implicit duty as it is in everyone’s

best interest to maintain the common asset, there is nothing within the Communist

Manifesto to support this. Coyle and Morrow suggest a shift from the Industrial

Revolution when the, ‘rank exploitation of the natural world replaced the

stewardship ethic’713 but this is perhaps stretching the point; whilst common land in

small villages and communities would have benefitted those with access for

grazing (as opposed to losing those rights through enclosure) there is no basis for

an assumption that all land in Britain was subject to a duty of care by those who

used the land between the late 1680s and the Industrial Revolution.

Perhaps the most relevant historical link to the Stewardship concept actually dates

back to the Bible,714 reinforcing the religious backdrop of this theory. Lucy and

Mitchell reference the Book of Genesis 1:26715 however the Bible’s very first words

embrace Stewardship. ‘In the beginning of creation, when God made heaven and

earth’716 could be interpreted that God, as the Creator, is shown as having absolute

707 Locke (n291) s27.708 Proudhon (n268) pt second. 709 Karl Marx and Frederick Engels, Communist Manifesto (Andy Blunden 2004) <www.marxists.org/archive/marx/works/download/pdf/Manifesto.pdf> accessed 1 December 2019.710 ibid 26 possibly as a reaction against the western capitalist model.711 For example in Russia the Land Decree of the Communist Party adopted on 26 October 1917 barred private ownership of land.712 Marx and Engels (n709) 22.713 Coyle and Morrow (n656) 148. 714 The bible was written c1400 BC to 250 AD, with the first English Bible written by Wycliffe in 1380s. Accordingly, opinions and inferences could be a product of contemporaneous translators thought rather than biblical thinking.715 Lucy and Mitchell (n43) 583.716 The New English Bible (OUP 1992), Genesis 2:15.

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rights of ownership over all things, with man as his manager, a concept reinforced

later in Genesis717 and in the New Testament.718 Looking to other faiths, one

translation719 of the Qur’an similarly speaks of, ‘global trusteeship that was

presented by God to the heavens, the Earth, and the Mountains’,720 and

‘humankind’s stewardship of the earth’.721 This religious influence has been cited as

a means of grounding the concept of Stewardship, yet the notion today is more

secular and incorporates the idea that man as, ‘custodian of the natural

environment is not necessarily a duty owed to God but to the wider human

community’.722 The spiritual influence cannot go unnoticed but, as Clarke and

Kohler suggest, God can be replaced723 leading to a more metaphysical sense

through a deep sense of morality and ethics.724 Environmental ethics (discussed in

more detail at 4.4.2) that relate to the rights and responsibilities of land ownership

are, for some, predominantly ones of basic human values and beliefs which impact

the mechanisms for dealing with land rather than problems of law.725 Here, it is

argued that property is one mechanism through which change could be brought

about, the prompt for such a change being either an ethical pro-active response –

evident in the literature on Stewardship arguably beginning with Leopold, an

environmentalist who writes passionately about man’s moral obligation to act in the

long-term interests of the land726 – or one made reactively in response to incentives

such as those proposed in this research.727

3.3.2 The Steward’s Duties

717 Ibid Genesis.718 ibid, 1 Corinthians 3:9. 719 The researcher does not speak or read Arabic – other translations clearly indicate a similar trust relationship.720 Sura 33:72, Frederick M Denny, ‘Islam and Ecology: A Bestowed Trust – Inviting Balanced Stewardship’ Earth Ethics 10(1) <http://fore.yale.edu/religion/islam/> accessed 6 May 2015.721 ibid.722 Lucy and Mitchell (n43) 583.723 Clarke and Kohler (n103) 89.724 Leopold (n1) 201-20. See also Edith Brown Weiss, 'The Planetary Trust: Conservation and Intergenerational Equity' (1984) 11 Ecology L Q 495, 504; Eric T Freyfogle, ‘Land Ethic’, in J Baird Callicott and Robert Frodeman (eds) Encyclopedia of Environmental Ethics and Philosophy (Macmillan 2008). 725 Lynton K Caldwell, 'Land and the Law: Problems in Legal Philosophy' (1986) U of Illinois L Rev 319, 319; 321; 332.726 Leopold (n1) 207-20. See also Freyfogle, ‘Land Ethic’ (n724).727 See 6.4.

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This section will examine the duties contained within this theory and will suggest

there are parallels to the literature on Sustainability (discussed at 4.4). As with the

rights of the steward there is little written as to what the duties entail beyond a

loose commitment to consider the community or public interest, meaning that some

hypothesis must be drawn to provide sufficient contours of the theory in order to

map it for comparison in Chapter 6.

The literature suggests that Stewardship duties could take several forms, being

proprietorial (applicable to those who own the land);728 ethical and spiritual

(applicable to a range of citizens to protect resources);729 custodial (a general but

implicit duty to protect natural resources);730 and managerial stewardship (to care

actively for the land).731 These will be explored and it will be argued that this is not

a sufficiently full analysis of the various forms of stewardship, as Barritt

acknowledges.732

Proprietorial Stewardship733 has the capacity to apply specifically to landowners

and on this basis is the most appropriate to this research;734 it is the representation

of the legal aspect of stewardship scholarship.735 Tensions exist between private

property rights and stewardship736 where the latter seeks to curb or restrict the

rights of the landowner changing private property from an absolute to a qualified

right.737 Lange and Shepheard argue that one way forward is to decrease the

conceptual gap between private property and stewardship by locating aspects of

property rights, ‘which can be made to chime with stewardship.’738 They propose

various options to achieve this. First, Roman property with its distinction between

the right to exercise dominion and the right to use a resource;739 which is less

viable in Britain being a common law jurisdiction. Second, if property is perceived

as ‘liberty right’ that yields freedom to take entitlements to the land, there are

therefore associated obligations thus changing the nature of private property rights 728 Lange and Shepheard (n119) 218; Barritt (n86) 18-20.729 ibid 218; ibid 20-23.730 ibid (n119) 218; ibid (n86) 15-16.731 ibid (n119) 218; ibid (n86) 14-20.732 Barritt (n86) 6, the tension in defining the object of the duty results from different disciplinary angles.733 Lange and Shepheard (n119) 218; Barritt (n86) 18-20.734 LPA, s(1)(a).735 Barritt (n86) 18736 Lange and Shepheard (n119) 219.737 ibid 219.738 ibid 219.739 ibid 219.

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to a qualified right.740 Third, they suggest that today there exists a, ‘post-growth’

economic agenda’ that enables private property rights to be redefined as including

an, ‘inherent duty to conserve natural resources for the present and future

generations’.741 This is similar to Raff’s latent environmental based duty742 and

echoes the language used in the Brudtland Report,743 but Lange and Shepheard do

not set out how this may work beyond referencing regulation or soft law, within

their context of water.744 As discussed above (at 3.3), three competing forms of

implementing stewardship have been expressed in literature: it has been

suggested that Stewardship already exists (in aspects of the law);745 in the

alternative that it does not exist; and that it could be implemented and imposed

through obligations on the landowner in several ways. The first is that the

relationship might be mapped onto the existing proprietary one;746 the second, by

amending the proprietary relationship by replacing private property with public,

common or a new paradigm;747 and finally, that private property be abandoned and

replaced with stewardship alone. It is argued that this range of approaches is in

part due to a tendency within scholarship to demur from attempting to formalise the

concept, partly because for some it is a fiercely ethical concept that should replace

the private property paradigm,748 and because it would seem unintelligible to attach

duties to the bundle of rights.749 However, the counter argument is that in viewing

Stewardship as a form of ‘private property plus’ with the addition of Stewardship,

this would result in a de facto duty to the land; reflecting the essence of

Stewardship.750 This research seeks to elucidate the precise nature of the duty to

care for the land. Within scholarship, it is argued, there is already awareness of the

existence of an element of control over the land in part because, in looking at

private property plus stewardship, control exists within private property.751 This

leads to a grey area in that, no one has addressed how stewardship could be

740 ibid 219.741 ibid 219.742 Raff (n411) 658.743 Brundtland Report (n100) ch 2 (4) 1.744 Lange and Shepheard (n119) 219-20.745 Howe, ‘Lockean natural rights’ (n69) 41; Natural England, Environmental Stewardship www.gov.uk/guidance/environmental-stewardship accessed 20 December 2017.746 Barritt (n86) 5.747 Lange and Shepheard (n119) 217. See also Caldwell, 'Rights of Ownership’ (n691).748 Lucy and Mitchell (n43) 596-97; Barritt (n86) 20.749 Barritt (n86) 20.750 Lucy and Mitchell (n43) 583.751 Barritt (n86) 21; Honoré (n164) 166-79.

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mapped onto private property,752 either between a person and the land or between

people in respect of the land. The answer to this may lie within the ethics of

Stewardship, which seek to reconnect humanity to the land. Rather than seeking a

latent duty, it is argued that the Sustainability Restriction proposes a mechanism to

create an obligation to the land through the notion of a person-to-person

relationship in respect of the land; one that will begin a new way of connecting to

the land that will, over time, change the property paradigm.

Picking up Lange and Shepheard’s point on future generations,753 it is suggested

that the duty of care to the land is connected to the concept of future generations754

(discussed at 4.6) yet whilst there is truth in this, the concept in itself is vague and

leaves little to form an argument as to the nature of the landowner’s proprietorial

duties. Custodial stewardship is similarly vague and unformed. Barritt argues that it

applies to all stakeholders and that it can be seen as a duty, ‘to conserve and

sustainably use biological diversity for the benefit of present and future

generations’,755 perhaps unusually (given the ethical dimension and ecological

background to the notion) placing it within an anthropocentric approach. This

language indicates a broad duty to care that is problematic756 because it implies a

duty towards all forms of life on the planet but with no indication as to how and who

determines the level of use. In common with all concepts seeking to preserve

resources for future generations a major stumbling block is that there is no

guarantee that if we, the present generation, act in what we believe will be the best

interests of future generations that we will get it right.757

The literature suggests that the managerial stewardship relationship is a step up in

terms of the duty itself,758 requiring something more of the steward than simply to

care for the land. Arguably, this could apply to someone managing the land for

another but here it will be considered from the perspective of an owner taking the

managerial stewardship relationship with the land.759 There is a connection to the

land in the scholarship760 but this still has a strong flavour of an anthropocentric 752 ibid 5.753 Lange and Shepheard (n119) 219.754 Barritt (n86) 20.755 ibid 15 quoting UN Convention on Biological Diversity, Rio de Janeiro, 1760 UNTS 79.756 See 2.3.757 See 4.6.758 Barritt (n86) 17.759 See 1.2.2760 Karp (n20) 753; Lucy and Mitchell (n43) 597.

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approach to the land; that the land exists to provide for humanity.761 However,

beyond this concept of managing land as a resource, there is nothing that clearly

states how the land can be used, thereby adding little in terms of analysis.

The final category of stewardship relationship is ethical, or spiritual. It is argued

above (at 3.3.1) that there is no need to separate theology from ethics,762 which

represents a different approach from Barritt.763 Yet, there have not been any

attempts to define what this admittedly ecocentric approach would actually look like

in practice. Leopold’s Land Ethic is perhaps the closest in terms of detailing how

this could look764 but this approach details the application765 rather than states the

steward’s duties.

One final viewpoint around the interpretation of the steward’s duties could come in

the form of a sliding scale. Barritt suggests that the level of the duty could depend

on whether the ‘aspect of environment’ (this is unspecified so presumably is

intended to mean the land, water, atmosphere etc.) is common land or private

ownership.766 Barritt suggests that the precise nature of the steward’s duties could

be operated within some form of offsetting, influenced by the different values

attached to the natural environment767 but makes no proposals as to what this

could look like. However, the counter argument is that assessing the rights and

duties of a steward working on a give and take basis, on a fixed sliding scale or on

a case-by-case basis it could, if not properly managed, become overly complex in

terms of interpretation and implementation; as well as being incredibly expensive.

In both situations it would most likely be hugely problematic and potentially costly

to implement.

It is clearly evident that different scholars approach the subject of Stewardship in

different terms, but a central approach can be distilled from the concepts where the

object of the duty is intended to be the land, albeit in nuanced terms.768 It is argued

that there is significant merit in adopting Lucy and Mitchell’s proposal to replace the 761 Barritt (n86) 17-18.762 Clarke and Kohler (n103) 89.763 Barritt (n86) 20-23764 Leopold (n1) 214-26.765 Barritt (n86) 21.766 ibid 4. 767 ibid 4.768 ibid 5-6 suggests that for Leopold, Karp and Lucy and Mitchell the object of the duty is towards the land; Leopold (n1) uses the word land ‘to refer to the soil, water, plants and animals’.

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current property paradigm with Stewardship,769 affording the opportunity to

formulate a new concept free of the need to be situated within the confines of

private property. In such a model the rights of the landowner could be formulated to

respond to and reflect the nature of the duty, which could be more explicitly

formulated. However, this research is advocating a pragmatic approach and

accordingly the most appropriate form of Stewardship would be to add the concept

to the existing private property paradigm. As discussed above, there are

consequential difficulties in simply ‘adding on’ Stewardship to the existing paradigm

as it is intended to encourage a duty of care between humanity and the land. This

research partially sits in this position as the Sustainability Restriction is intended to

be used in addition to private property and to begin to encourage a duty of care

between humanity and the land. This will be analysed further in the comparison in

Chapter 6.

3.3.3 The Rights of the Steward

Having explored the background and context, this section will analyse the rights

contained within this theory to be included in the comparison below (at 6.3 and

Table 6.3) as being full or limited rights and duties. The form of the theory can only

be pieced together to a limited extent, based on brief references in literature to

date, therefore an element of hypothesis is required to propose a theory for

comparison in Chapter 6. Discourse on Stewardship in scholarship does not clearly

state what the steward of the land – be it an individual, state or corporation – may

and may not do. Much of the literature reflects passion but is vague as to the

detailed contours of the concept. Accordingly, the most helpful description of the

steward’s rights comes from Lange and Shepheard as being, ‘limited rights to

exclude, control and alienate natural resources’770 yet they do not go as far as

specifying the form these limits may take. This suggests that the rights to exclude,

alienate and control are limited, yet these limits could be nothing more than the

current statutory and common law restrictions which apply to any landowner. With

reference to Hohfeld’s jural correlatives, the starting point is the notion that if there

is a duty to care for the land, there must exist a right to hold and use the land in

some capacity. Additional support for this proposition comes from Karp who

suggests that, ‘the existence of rights for individuals within the group must give rise

769 Lucy and Mitchell (n43) 567.770 Lange and Shepheard (n119) 216.

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to duties’.771 Karp is not suggesting that different groups (referring to humans

existing within states, families and other social arrangements) have different rights

but that there can only be a right for one person if the other members of the group

have a duty to respect that right772 (reflecting Hohfeld’s analysis773) but he does not

elaborate what such duties might be. Howe similarly suggests that beneficial rights

will exist but they will be constrained.774 However, the opposing perspective is

whether a purely altruistic duty to care for the land, as suggested in stewardship

literature, does necessarily give rise to any form of right.

Another approach that does not prove particularly helpful in terms of analysis is

that the courts will recognise that owners of land have different rights depending on

the natural uses of the land in question.775 The real problem with this approach is

placing a value or prioritising one use over another. For example, the rights

attached to farmland could be different to those attached to land open to the public,

such as National Trust land. Using the farmland example, what would be the

relevant use: food for humanity; habitat for animals such as owls, brown

hares and bumblebees; or a scenic rural walk, with the related leisure and health

benefits for humanity? And what of the ancillary benefits provided, such as water

filtration and trees that remove carbon dioxide? From this perspective an

ecosystem services approach could be employed but (as discussed at 2.2.1) this is

less desirable given issues with the commodification of land.776 A further alternative

suggestion is put forward by Lucy and Mitchell, who propose a, ‘structure of

incentives’ for stewards in respect of their obligations.777 Arguably, whilst Lucy and

Mitchell do not develop this idea, it is not dissimilar to the proposals made in this

research that the Sustainability Restriction is entered into voluntarily or in response

to an incentive. Lucy and Mitchell respond to the question of the steward’s rights by

drawing on a trust relationship; that the steward will have some control and rights

over the resource which, ‘must in the main be exercised for the specific benefit of

others’,778 only hinting at some degree of control or a right over the land and that

there should be some form of public interest test. Similarly, some academics, 771 Karp (n20) 738.772 ibid 738.773 Hohfeld (n163). 774 Howe (n401) 40.775 Hunter (n30) 356; State of New Hampshire Wetlands Board v Marshall (1985) 127 NH 240 similar to the sliding scale suggested by Lange and Shepheard (n119).776 See 2.2.1.777 Lucy and Mitchell (n43) 582.778 ibid 584.

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notably Caldwell and Karp, argue that the owner (as a steward) will consider

community interests but neither elucidates what this entails or how it would be

implemented.

A further concept that offers elements of a rights-based analysis must also be

considered but, significantly, does not add to the analysis in the context of

Stewardship in that it does not provide sufficient guidance as to what the rights

might be. Brown Weiss’ concept of the Planetary Trust has an, ‘underlying purpose

of stewardship of the planet’.779 In brief, the concept provides for a burden of the

duty or obligation to lie with the present generation whereas the right to receive the

benefit is bound between both the present and future generations.780 Barritt781

places Brown Weiss in the context of Stewardship but there are arguably much

closer ties to sustainability782 as she clearly proposes her concept as a means of

implementing sustainable development.783 The main analysis of this will be

addressed below (at 4.6) however there is merit in briefly exploring this rights-

based concept within the context of Stewardship. Brown Weiss proposes the idea

that, ‘each generation may use and develop but must pass on in at least

comparable condition to future generations’784 which arguably gives rise to a clear

right to use but not to ameliorate damage and a duty not to damage further.

However, in terms of analysis in this research, Brown Weiss does not provide any

means of mapping what the rights may be beyond a right to use. This right to use

would further be limited for each generation and defined by each generation as the

obligation they owe to the future generation,785 which responds to the issue of

determining future rights but makes the concept so intangible it adds no value.

However, she makes a valid point in that rights cannot be absolute or there would

be no means of resolving disputes and accordingly all rights must be prima facie.786

Brown Weiss explains the rights and obligations that form the framework of her

concept,787 sharing some similarities to this research through the use of rights and

779 Brown Weiss, In Fairness to Future Generations (n42) 37.780 Edith Brown Weiss, 'The Planetary Trust: Conservation and Intergenerational Equity' (1984) 11 Ecology L Q 495, 504 onwards.781 Barritt (n86).782 Brown Weiss, In Fairness to Future Generations (n42) 39; See also Edith Brown Weiss, 'In Fairness to Future Generations and Sustainable Development' (1992) 8(1) American U Intl L Rev 19.783 ibid 37-39.784 ibid 97.785 ibid 105.786 ibid 101.787 ibid 44.

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obligations as the theoretical framework. However, there is a divergence in that

Brown Weiss attempts to tackle a range of issues from water to hazardous waste –

whereas the focus here is the protection of land – and the description of the rights

within Intergenerational Equity is at best vague.

Whilst this is still vague, it is sufficient to enable an analysis of the rights to be

shown as predominantly having limited rights (at 6.3), as part of the comparison of

the concept in Chapter 6.

3.3.4 Stewardship in Action

Stewardship clearly exists in Britain today but it has not been implemented as

widely as it could have been. The EU Rural Development Regulation788 has been

incorporated into UK legislation in such a way as to allow it to continue to operate

in the UK after Brexit.789 This effectively implements the Rural Development

Program for England and provides funding to improve agriculture, the environment

and life in rural communities.790 There are various schemes available under this

program and the one selected, for analysis, is the Countryside Stewardship

Scheme, discussed below. The funding is available for the stated aims of

improving the environment, increasing the productivity of farming and forestry and

growing the rural economy.791 It is arguable that, from a sustainability perspective,

these three areas exist in direct conflict, again discussed below (cross reference to

4.5) where it is argued that economic growth can be counter-productive and

potentially damaging to the environment. The government has committed to fund

these projects following Brexit until the project closes, giving a degree of certainty

for those involved. However, as highlighted below, these require relatively complex

applications792 and will still only be available to the specified groups. This is in

contrast to the Sustainability Restriction that will be available to any landowner

voluntarily, either altruistically or in response to a financial incentive.793

788 Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the Euroopean Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005.789 Rural development (Amendment) (EU exit) regulation 2019 SI 2019/764.790 GOV.UK, Rural Development Programme for England <www.gov.uk/rural-development-programme-for-england> accessed 13 September.791 ibid.792 The European Agricultural Fund for Rural Development and DEFRA, United Kingdom - Rural Development Programme (Regional) - England July 2019.793 See 6.4.2.

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Looking at the application of the EU regulations in Wales, these take the form of

the Rural Development Programme document 2014 to 2020.794 The Programme

provides multiple types of rural grants and payments ranging from Young People

into Agriculture 2018 to the Wood Kiln Investment Scheme. However, these are

clearly applications for funding and are aimed at sustainable management of

agriculture and the environment. However, as discussed above in relation to

England, these are relatively complex applications and can only be made by

certain categories of people. Again, this is a clear contrast to the proposals made

in this research for the Sustainability Restriction, which would be available to any

landowner regardless of status.

There are examples of Stewardship in action including the agreements developed

by DEFRA (known as the Environmental Stewardship Scheme795) and the

Countryside Stewardship Scheme (implemented through EU Rural Development

Regulation). With the former now closed to new applicants, the Countryside

Stewardship Scheme will be the focus. There are four categories available: Mid-

Tier (environmental improvements in the wider countryside); Wildlife Offers

(funding to help farmers improve wildlife on farms); Higher Tier (environmentally

significant sites, commons and woodlands where more complex management

requires support from Natural England or the Forestry Commission); and Capital

Grants.796 Looking at the Mid-tier category, it has limited potential application given

its stated purpose of restoring habitats, providing food and nesting places, creating

areas for rare flowering plants and managing hedges, making water cleaner and

reducing the risk of flooding by encouraging changes to farming practice and

improving farm infrastructure, ensuring the right resources for the wild pollinators

where they are needed most, historic environment, landscape character, genetic

conservation, educational access and climate change adaptation and mitigation.797

The scheme is also limited to specific types of land, such as land within an

agricultural area (defined as arable land, permanent grassland or permanent

794 GOV.WALES, Rural Development Programme document 2014 to 2020 <https://gov.wales/sites/default/files/publications/2019-07/rural-development-programme-document-2014-to-2020.pdf> accessed 13 September 2019.795 Natural England, Environmental Stewardship <www.gov.uk/guidance/environmental-stewardship> accessed 20 December 2017.796 DEFRA, Countryside Stewardship: Mid-Tier <www.gov.uk/government/publications/countryside-stewardship-mid-tier-including-water-quality-capital-items-manual> accessed 25 February 2019.797 ibid.

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crops), sites of special scientific interest and special areas of conservation.798 So,

as mentioned above, the scope is very limited in application not only in relation to

the type of land but also in terms of accessibility for the public, who may not be

aware of this scheme and/or may struggle with the application process. Further,

the scheme is described as ‘competitive’799 which indicates that having gone

through a lengthy and complex application process there is still no guarantee of

acceptance. And, there is an ethical issue in that it, ‘makes payments to farmers

and land managers to improve the natural beauty and diversity of the

countryside’800 similar to the Law Commission Conservation Covenants report801

which proposes a voluntary conservation obligation, accepted upon payment,802 as

did the Environmental Stewardship Schemes.803 The resultant ethical dilemma is

that whilst these are clearly steps towards the implementation of Stewardship, as

McGillivray observes, ‘arguments in favour of stewardship in property law generally

include arguments against financial compensation’.804 So the dilemma is whether a

financial subsidy for Stewardship contradicts the deeply moral tone that underpins

its very notion.805 There are several elements at play here. McGillivray suggests

that it is an, ‘ethical question of whether it is right to pay people to do good’;806 this

is the clear moral response in that to do good is commendable when it is supported

by good intentions but, surely, to reward someone financially to do good is open to

potential abuse. The opposing argument is essentially that the end justifies the

means.807 This research supports the ethical position suggested by McGillivray but

takes a pragmatic outlook in arguing that the approach should be to promote the

incentives more as charging people who do not do the right thing i.e. penalising

bad behaviour. Another element to this debate is the amount of money likely to be

involved. For example, if the payment is limited to cover legal costs or related

expenses then people would be less likely to agree to the restriction in the hope of

expecting a windfall. An alternative to payments might be to offer a reduction in

798 ibid.799 ibid.800 ibid.801 Conservation Covenants (n73).802 ibid.803 Environmental Stewardship (England) Regulations 2005 (SI 2002, No 621 as amended); McGillivray, 'Water rights and environmental damage’ (n119) 211 described as payment for ecosystem services. 804 ibid 212 with reference to the Water Act 2003.805 ibid. See also Lucy and Mitchell (n43) 582 who suggest incentives yet the moral tone is evident in literature from Brown Weiss, Hunter, Lucy and Mitchell and Caldwell.806 ibid 213.807 Attributed to Niccolò Machiaveli, The Prince (first published 1532).

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Stamp Duty, Council Tax and/or tax relief for charitable contributions as discussed

at 6.4.2. The resultant consequence would be a reduction in the government/local

authority’s tax receipts and there will be costs in maintaining such a programme

but these would need to be put in context against the significant long-term saving

knowing that inertia now will only escalate the problems the planet faces.

3.3.5 An Alternative Duty

A further, alternative view of attaching a duty in the form of a Stewardship duty was

prompted by Gray’s comment that property is merely an illusion,808 with reference

to the perception in Britain that the purchaser of a property ‘owns’ it. Whilst a

person is in possession809 it is the Crown that is, ‘the only absolute owner of land in

England and Wales: all others hold an estate in land’.810 So on this basis, should

the Stewardship duty be extended to the Crown in respect of land with no

‘owner’,811 or should the Crown even be the duty bearer in respect of all of Britain’s

land? This would provide a mechanism for ensuring that all land within Britain

became the subject of a duty but clearly it is not a practical option on a widespread

basis (albeit there is potential application in a very limited circumstance, for

example bona vacantia when title reverts to the Crown until subsequently sold).

Beyond Britain, Stewardship obligations have been imposed through giving a

natural object rights, similar to a Guardian ad litem. This was initially proposed by

808 Proudhon (n268) 13; Gray, ‘Property in Thin Air’ (n269) 252. See also Kohler (n252) 243 who challenges this notion stating that the rights are there but merely difficult to see.809 LPA, s(1)(a) and (b).810 Explanatory Notes to LRA n4 Title to Land, ‘The Crown is the only absolute owner of land in England and Wales: all others hold an estate in land. Estates, which derive from feudal terms of tenure, originally took many forms but were reduced by the LPA to two, an estate in fee simple absolute in possession, generally known as ‘freehold’; and an estate for a term of years absolute generally known as ‘leasehold’. Apart from an estate, land may have the benefit of or be subject to other interests, which are rights and obligations relating to the land, belonging to the owner or to a third party.’ 811 Gray and Gray, Elements of Land Law (n2) 67-68; 223-24 escheat is the process by which ‘unowned’ freehold land reverts to the Crown; see also 2.5.

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Stone812 who suggests that when a natural object could be endangered, an

application can be made, ‘to a court for the creation of a guardianship’.813 This is

now reality as evidenced by Ruruku whakatupua te mana o te awa tupua814 which

awarded a legal identity to the Whanganui River in New Zealand. Similarly, the

rivers Ganga and Yamuna in India were granted the status of a legal person with

all corresponding rights,815 which applied similar principles to the Himalayan

mountain ranges, glaciers, rivers, lakes, air and forests.816 In these cases the

interests of the natural objects are assessed by trustees and whilst this mechanism

gives a real prospect of affording protection to natural resources it could add

another layer in complexity and resulting cost if all extended to all. This is however,

a neat device to reflect the legal relationship between the two parties in respect of

the land, whilst acknowledging a metaphysical or spiritual connection with the

land.817

One of the fundamental themes of this research is the need for change – in this

context, a two-part process: a critical shift in perception to accept that change is

needed (acknowledgment) followed by a willingness to act accordingly (action)818 –

and this is similarly evidenced in the literature on Stewardship. Gray suggests the

duty of the steward could extend to include the state and other individuals,819 a

general all-encompassing obligation. This could be substantially reflected here

through the use of private property; this research is not proposing a mechanism

based on the type of land, or a community based system or one that distinguishes

between different types of landowners but one that potentially attaches to the land,

through the registration process at HM Land Registry, through the Local Authority

or an alternate body.820 As is evidenced throughout this research, to accept this

burden would require a cultural change for humanity to be more aware of the need

812 Christopher Stone, 'Should Trees Have Standing? - Toward Legal Rights for Natural Objects' (1972) 45 South California L Rev 450; McGillivray, 'Water rights and environmental damage’ (n119).813 ibid 464; Gray ‘Equitable Property’ (n139) 29.814 Whanganui Iwi (Whanganui River) Deed of Settlement 5 August 2014 <www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 21 September 2016.815 Mohd Salim v State of Uttarakhand & others (2017) SCC OnLine Utt 367. 816 Lalit Miglani v State of Uttarakhand & others (2017) MCC 139/2017 <www.livelaw.in/uttarakhand-hc-declares-air-glaciers-forests-springs-waterfalls-etc-legal-persons/> accessed 20 May 2017.817 See 2.2.1; 2.5.818 See 1.1.819 Gray ‘Equitable Property’ (n139) 188; Barritt (n86) 9 includes farm owners, local communities, corporations and state bodies.820 See 6.4; 6.4.3.

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to preserve and protect the land.821 Many support this desire for a shift in

perception, from Karp, a, ‘change of attitude about everyone’s backyard’822 to

Caldwell, ‘society itself must shift its focus of attention from the rights of the current

landholder to the communal rights of all present and future society member’.823

As discussed below (at 4.4), this hoped-for change in perspective could prompt

new legislation and/or a change in judicial interpretation824 and there are indications

of a movement towards such a shift, particularly within sustainability (discussed in

Chapter 4).

3.4 Progressive Property Theory

‘To put it mildly, this is not the normal fare of property law scholarship’.825

In comparison to the previous two theories, Progressive Property is in its infancy826

with the theory not yet fully formed827 and arguably, as a consequence, there are

significant gaps in the anatomy of this theory. As with Stewardship (at 3.3) this

section will map the contours in scholarship and will hypothesise as to the possible

unaccounted aspects. Despite this, there is justification for its inclusion here. The

theory is anchored in western common law tradition, is frequently referenced in the

broader property forum,828 and has been supported by Alexander, Peñalver, Singer

and Underkuffler who published a joint statement. 829 Yet, whilst it contains many

elements that overlap, not all Progressives share identical opinions.830 Alexander

draws on Aristotlelian virtue and human flourishing arguing that such ethics are

already embedded in the US; Peñalver draws on the idea of virtues in ownership;

and Singer focuses on original acquisition. Clearly, there are some initial parallels

to the direction of this research such as Alexander’s proposal of, ‘an innovative

821 Similar in nature to Leopold’s Land Ethic, Leopold (n1).822 Karp (n20) 749. See also McGillivray, 'Water rights and environmental damage’ (n119) 213.823 Caldwell (n725) 323.824 Karp (n20) 748-49 argues for a stewardship duty to be clearly defined by the legislature and ultimately by the courts.825 Rosser (n45) 120.826 Alexander, Peñalver, Singer and Underkuffler (n44).827 Rosser (n45) 110-11. 828 For example SLS Conference, York September 2015; Association of Law, Property, and Society Belfast, 2016.829 Alexander, Peñalver, Singer and Underkuffler (n44). See also Rosser (n45) 110.830 Rosser (n45) 110.

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view of property, one focused on the obligations of ownership’831 which links to the

analysis involved here with the use of Honoré’s work on ownership.832 It has also

been suggested that Progressive Property has emerged as a reaction against the

economic analysis approach833 and a desire to move away from giving the right of

exclusion such high priority, which has been similarly argued above (at 2.3).

However a fundamental difference is the Progressives placing humanity at the

centre of their thinking – anthropocentric – in contrast to the strong sustainability

approach of this research.834

To appreciate fully the nuances of the application of this theory, an understanding

of US Eminent Domain law (known as ‘Takings’) is required as this theory is largely

applied to a limited selection of US case law835 (discussed at 3.4.2). Lovett is one

notable exception by his analysis of Progressive Property in the context of the

Land Reform (Scotland) Act 2003 (LRSA 2003).836 He argues that the LRSA 2003’s

right of responsible access (a right to go almost anywhere in Scotland, on most

land whether privately owned or public837) illustrates what is possible with property

law design838 but does not suggest this is actually Progressive Property in action.

Another perspective comes from Purdy who suggests the theory is,

‘cosmopolitan’839 with examples coming almost inevitably from the national property

regime (being the US). It has also been suggested this hypothesis largely exists in

the sphere of theory and the Progressives have limited their practical application to

a few well-chosen cases rendering the theory pertinent.840 This provides challenges

in analysing the theory for comparison yet over and above these reasons

Progressive Property reflects a recurring theme in this research – the ethics behind

the theory in the virtue ethics (at 3.4.3).

831 Jedidiah Purdy, ‘Response A Few Questions About the Social-Obligation Norm’ (2009) 94 Cornell L Rev 949, 949.832 See 2.3.833 Rosser (n45) 110 -14.834 See 4.4.1. 835 Rosser (n45) 110. See also Eduardo M Peñalver, 'Land Virtues' (2009) 94 Cornell L Rev 821; Alexander (n454); Joseph William Singer, 'Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity' (2014) 86(3) Indiana L J 763.836 John A Lovett, 'Progressive Property in Action: The Land Reform (Scotland) Act 2003' (2011) 89 Nebraska L Rev 739.837 ibid 741; Land Reform (Scotland) Act 2003, s1.838 ibid 742.839 Purdy (n831) 949.840 Rosser (n45) 111.

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3.4.1 A Statement of Progressive Property

This titular work is the seminal piece of literature in which four US scholars –

Alexander, Peñalver, Singer and Underkuffler – set out their proposition of

Progressive Property.841 This section will provide an outline of their five key points

and will suggest some missing elements. The Progressives see the current US

model of property as inadequate as a mechanism for resolving property conflicts or

for designing property institutions and suggest it should look more towards the

underlying human values that property serves and the social relationships it

shapes and reflects.842 The body of property theory literature derives predominantly

from the UK, USA and in part from Australia similar to the Western common law

scope of this research. The US property model broadly accords with the British

liberal model, yet the distinction most relevant here is the emphasis placed on the

importance of exclusion (and the financial value of the land as an asset) that is

echoed through case law and in particular evidenced through the US Takings

cases discussed below.

Their second point is that the multiple values involved render property

incommensurable and incapable of being measured by a single metric. 843 Values

are a key feature and are those with mutual concessions and compromises, those

that promote individual interest, social interest and human interaction. These,

‘values generate moral demands and obligations that underlie judgements about

the interests the law should recognise as property entitlements’ and include life,

human flourishing, protection of physical security, the ability to acquire knowledge,

to make choices, freedom to live on one’s own terms, wealth, happiness and

individual and social well-being.844 The Progressives suggest such values must be

supported by humanity, which must address moral and political ideas of social

relationships, distribution and democracy. In claiming and exercising property

rights, humanity should act with humility and an appreciation of the consequences

on others, including future generations, the natural environment and the non-

human world.845 Here, it is evident there are similarities to the ethics expressed in

Stewardship and in Sustainability and reflected in the aims of this research to

locate the most effective model of property in land … for the future. Yet

841 Alexander, Peñalver, Singer and Underkuffler (n44).842 ibid 743.843 ibid 744. See also 5.3.844 ibid 743.845 ibid 743-44.

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despite these similarities there is also a fundamental difference between strong

sustainability that underpins this research and the anthropocentric human

flourishing, social obligation approach taken by the Progressives.

The Progressives argue that property grants power through the allocation of scarce

resources that are, ‘necessary for human life, development, and dignity’, and

property laws should support each person’s ability to access these resources

necessary for, ‘full social and political participation’,846 further indication that

property should be about relationships.847 The Progressives see property as the

framework for a democratic society,848 arguably simply reiterating an economic

allocation of resources argument849 supporting private property but one in which

there is an emphasis on social equality. If this simply becomes a reworking of the

resource allocation argument, it is unlikely to succeed given that this has already

been effectively challenged.850 Additionally, there is a vast body of literature in

support of resource allocation within a common property model as opposed to

private property.851 The social responsibility element running through this theory is

clearly evident however there are gaps notably around detail and implementation.

This is perhaps not unexpected in that, as with Stewardship, this is a hypothesis, a

starting point.

Having explored the outline of Progressive Property theory, additional literature will

be explored breaking it down into rights and duties.

3.4.2 US Takings

The US legal system is similar to that of Britain852 with the notable exception of its

written Constitution853 where the founding fathers were undoubtedly influenced by

Locke and placed great emphasis on his ideals.854 Consequently, today’s model of 846 ibid 744.847 ibid (n323) 743. See also Blandy, Bright and Nield (n537) 92-93.848 Alexander, Peñalver, Singer and Underkuffler (n44) 744.849 For example Demsetz (n313); Hardin (n314).850 Ostrom (n260); Fennel (n83); Hardin (n314) 682; see 2.2.1.851 ibid; Clarke, ‘Creating new Commons’ (n133); Fennel (n83); Ting Xu and Alison Clarke (eds), in Legal Strategies for the Development and Protection of Communal Property Proceedings of the British Academy (OUP 2018). 852 In 1783 USA gained independence from Great Britain and retained the already established English legal system.853 The US Constitution effective 4 March 1789.854 ‘The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right’ James Madison, the

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property in the US is much aligned to that of Britain with a similar emphasis on

homeownership855 and the commodification of property.856 However, there is one

key distinction, a stronger emphasis on the right of the owner to exclude.857

To analyse the application of Progressive Property to US case law, it is vital to

outline ‘Takings Cases’ centred on the specific Fifth Amendment wording, ‘nor shall

private property be taken for public use, without just compensation’.858 At a time

when the US was recovering from the American Wars of Independence,859 an

intention to provide compensation to individuals when government sequestered

private property has, in recent years, become the basis of the argument for and

against the protection of the rights of private property owners. This section will

support the analysis of Progressive Property and the argument that the rights of

the US private landowner are dominant, challenging the perception that

environmental needs are prioritised in the US.860 This is supported by Supreme

Court decisions, as voiced by Scalia J quoting Coke, ‘For what is the land but the

profit thereof [?]’;861 the private landowner’s ability to profit from the land has in fact

been given priority over longer term environmental needs.

US eminent domain law (‘a taking’) can be exercised by the government filing a

direct condemnation action against the owner or against the property in rem (direct

condemnation);862 the only real issue in this situation being to agree applicable

Virginia Constitutional Convention (2 December 1829).855 Lawrence Yun, 'Why Homeownership Matters' Forbes (12 August 2016) <www.forbes.com/sites/lawrenceyun/2016/08/12/why-homeownership-matters/#290008e7480f> accessed 29 December 2017. 856 Lucas v South Carolina Coastal Council 505 US 1003 (1992).857 ‘The right to exclude others [is] one of the most essential sticks in the bundle of rights’ Kaiser Aetna v United States 444 US 164 (1979) 176 restated in Lucas (n856) 1044; Dolan v City of Tigard 512 US 374 (1994) [384].858 The Fifth Amendment is one of the first ten amendments to the US Constitution introduced by James Madison to the first US Congress.859 1775-83.860 Robert Meltz, Dwight H Merriam and Richard M Frank, The Takings Issue (Island Press 1999) 199. See also Richard J Lazarus, ‘Restoring What’s Environmental AboutEnvironmental Law in the Supreme Court’ (2000) 47 UCLA L Rev 703 but the data is now almost 20 years old; Jane Holder and Donald McGillivray, 'Bringing environmental justice to the centre of environmental law research: developing a collective case study methodology' in Andreas Philippopoulos-Mihalopoulos and Victoria Brooks (eds), Research Methods in Environmental Law (Edward Elgar Publishing Limited 2017) 184;189-90. 861 Lucas (n856) 1017.862 ‘The word "condemned," at least as it was commonly used in 1901, when 25 USC § 357 was enacted, had reference to a judicial proceeding instituted for the

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compensation. Alternatively, a property owner can argue that the consequence of a

government action is tantamount to a taking (inverse condemnation),863 recognised

in the 1870s by the Supreme Court.864 There are three categories of inverse

condemnation: first, physical occupation (such as aircraft flying too low over

property); second, regulatory takings (where, despite there being no physical

invasion, the government so severely regulates the use of the land as to be

tantamount to a physical occupation or appropriation); and third, an exaction (a

hybrid of regulatory/physical takings where the municipality typically requests the

developer to dedicate land as a condition). Most relevant to this research are

regulatory takings where the body of case law sits on the boundary of private

property rights and civic environmental responsibility; these will be analysed in the

context of Progressive Property and the pre-eminence of the private landowner’s

rights. As stated at 1.2.2, property law exists in a context865 that, in the takings

cases, is heavily economic, seeking to determine whether or not a party has

suffered a loss and is entitled to compensation, assessed on the nebulous ‘public

use’ test.

Several issues within this body of case law are complex and beyond the scope of

this research such as jurisdiction,866 ripeness867 and the constitutional interpretation

of whether the Framers intended the Constitution to evolve over time to reflect the

needs of society changing, or to remain rigid and inflexible.868 Property rights

advocates argue in favour of the former with the federal government being required

to pay property owners on taking land, including compensation for diminution in

purpose of acquiring title to private property and paying just compensation for it’ United States v Clark (1980) 445 US 25 [254] Rehnquist J.863 In the 1870s the US Supreme Court recognised inverse condemnation in Legal Tender Cases (1870); Knox v Lee 79 US 457 (1871); Pumpbelly v Green Bay Co (1871) 80 US (13 Wall) 166.864 ibid.865 Clarke and Kohler (n103) 3. See also Little (n146), 49. 866 The wording of some State Constitutions are slightly differently to the US Constitution for example the Florida State Constitution art X s6(a) <www.leg.state.fl.us/Statutes/Index.cfm?> accessed 31 August 2014.867 The US Constitution, art 3 (2)(1) requires an appellate court to consider whether a case has matured into a controversy worthy of adjudication before it can hear the case. 868 See Paul Brest, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 B U L Rev 204; Meltz, Merriam and Frank (n860); Edward J Sullivan and Nicholas Cropp, ‘Making it up - “Original Intent” and Federal Takings Jurisprudence’ 2003 (35)2 The Urban Lawyer 203; Jack M Balkin, ‘Framework Originalism and the Living Constitution’ 103 (2009) Northwestern U L Rev 543. [A] ‘major theme in American constitutional tradition’, Paul Brest, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 B U L Rev 204, 204.

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value, as seemingly proposed by James Madison, ‘the rights of persons, and the

rights of property are the objects for the protection of which Government was

instituted’; similarly echoed by Locke’s views on the natural right to acquire

property.869 However, Treanor provides an example of the alternative view that the

clause should be read literally:

If I tell my daughter she cannot play with her ball in the house, she has lost

something of value – the right to play with her ball in the house. I have

regulated what she can do with the ball, but I haven’t ‘taken’ it. She is still

free to play with it outside. I only ‘take’ her ball when I physically seize it.870

Despite being beyond the stated scope of this research (Britain), the inclusion of

this aspect of US law provides context for Progressive Property and, it is argued,

some limited comparison can be drawn. US scholarship debate around

Progressive Property tends to focus on a few key cases, the two most well known

being Lucas v California Coastal871 and Kelo v City of New London.872 Given this

research’s proposal to restrict elements of humanity’s environmental consumption,

the emphasis will be more on Lucas873 and subsequent regulatory takings that

further support the predominance of the private landowner’s rights in the US.

Pennsylvania Coal Company v Mahon874 provides a classic example of a regulatory

taking where a financial agreement was made between the two parties, with the

company given full rights to mine coal located beneath Mahon's property.

Subsequently, Pennsylvania State passed the Kohler Act 1921 prohibiting the

extraction of below-surface coal underneath buildings leading to Mahon changing

his position and filing suit in the Court of Common Pleas to stop the agreement

under the Kohler Act. The Supreme Court ruled that the Kohler Act violated the

takings clause of the Fifth Amendment, the state had exceeded its police powers

by significantly diminishing the value of the land without having a strong public

interest reason to do so, commenting, ‘if regulation goes too far it will be

recognized as a taking’.875 Almost a century later, one has to question the support 869 James Madison, Mr Madison’s First Speech in the Virginia Convention of 1829 noted by A J Stansbury; Locke (n291) s27.870 William Michael Treanor, ‘The Original Understanding of the Takings Clause’ (2010) June Georgetown Environmental Law and Policy Institute Papers and Reports 4.871 Lucas (n856).872 545 US 469 (2005).873 Lucas (n856).874 260 US 393 (1922).875 ibid.

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of what was, in essence, a flawed commercial decision with the commodity being

the coal (and subsequent profit) in favour of the risk of damage to the properties on

the grounds of regulatory takings as the coal was not ‘taken’ for the ‘public use’ but

by Pennsylvania Coal; whereas the clear public benefit876 of preventing houses

from possible risk of subsidence was deemed of less importance. Effectively,

Mahon was financially compensated because he lost the ability to profit (from the

coal) even though he had entered into an earlier financial agreement with

Pennsylvania Coal (clearly mirrored in Lucas877 as discussed below). This was the

first ‘taking’ under the Fifth Amendment setting the foundation for the dominance of

the private landowner’s rights still clearly evident in the US.

The highly contentious Kelo v City of New London878 concerned homes on 90 acres

of land, labelled a ‘distressed municipality’.879 In an attempt to reverse the decline

New London approved a development plan to capitalise on Pfizer Inc’s proposal to

build a new facility in the city.880 The existing landowners claimed that taking their

property for the sole purpose of economic development expanded the definition of

public use so as to make it meaningless.881 The US Supreme Court’s decision in

favour of New London upholding the, ‘taking of modest private homes for the

purpose of government-sponsored commercial and residential economic

development’882 was met with an unprecedented public backlash883 from property-

rights activists, advocates for racial minorities, the poor and small-business owners

yet others accepted that government should have sufficient power to be able to

implement public projects.884 This was clearly an economic and social decision, but

one that favoured destruction of homes instead of the purported public interest,

which prompted the backlash. From the Progressives’ perspective, Underkuffler

noted that despite the potential increases in local employment and/or tax receipts, 876 ‘The Court long ago rejected any literal requirement that condemned property be put into use for the general public’ Hawaii Housing Authority v Midkiff 467 US 229 (1984) O’Connor J.877 Lucas (n856).878 Kelo (n872).879 ibid.880 Patrick McGeehan, ‘Pfizer to Leave City That Won Land-Use Case’ New York Times (12 November 2009) <www.nytimes.com/2009/11/13/nyregion/13pfizer.html> accessed 20 January 2018.881 Kelo (n872) Stevens J. 882 Laura S Underkuffler,'The Politics of Property and Need' (2010) 20(2) Cornell J of L and Public Policy 363, 374. See also Rosser (n45) 163.883 ibid 374 all but 7 states in the US passed legislation limiting the use of eminent domain in the wake of Kelo.884 ibid 374.

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the burden would fall on those whose properties are, ‘less worthy than others, and

who (for this and other reasons) lack social, economic, and political power’.885

Through this argument the Progressives effectively sidestep the public

use/interest/greater-good debate to focus on the crux of their particular issue,

social inequality and wealth distribution, which they are seeking to challenge. This

became all the more pertinent in Kelo given that Pfizer subsequently closed the

New London site.886

Lucas887 centred on the Beachfront Management Act 1988 and its purpose of

protecting property from storms, tides and beach erosion, and as environmental

protection. The statute prohibited building residential structures on two beachfront

plots on a fragile coastline. Despite Blackmun J (dissenting) observing that the

Petitioner could still, ‘enjoy other attributes of ownership, such as the right to

exclude others ... picnic, swim, camp in a tent, or live on the property in a movable

trailer’,888 the Supreme Court decided that when the owner of property,

‘sacrifice[s] all economically beneficial uses in the name of the common good, that

is, to leave his property economically idle, he has suffered a taking’889 and should

be compensated, regardless of the benefit to the public purpose. Lauded by private

property advocates890 for defending the owner’s rights, like Kelo it was

controversial891 in that Lucas, the plaintiff, was compensated for losing the ability to

profit from developing these plots thereby elevating his interests over the

community892 or indeed the best interests of the land. Here, an interesting

comparison can be drawn. Lucas only lost the right to profit not an actual loss and

was accordingly compensated. Whereas in R (Mott) v Environment Agency,893 the

Environment Agency limited Mott’s (a commercial salmon fisherman) catch by 95%

and he successfully argued under Protocol 1 Article 1 (‘P1A1’) of the European

Convention on Human Rights that his rights had been breached. Here,

compensation was for a clear loss, loss of earnings, with Lord Carnwath clearly

885 ibid 375.886 McGeehan (n891) approximately 1,400 jobs were moved.887 Lucas (n856).888 ibid [1043]-[1044].889 ibid [1019].890 Michael C Blumm and Lucas Ritchie, ‘Lucas’s Unlikely Legacy: The Rise Of Background Principles As Categorical Takings Defenses’ (2005) 29 Harvard Environmental L Rev 321, 321. 891 ‘Today the court launches a missile to kill a mouse’ Lucas (n856) [1036] Blackmun J.892 Gray and Gray, ‘The Idea of Property in Land’ (n3) 28. 893 [2018] UKSC 10.

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stating that, ‘A1P1 gives no general expectation of compensation’,894 yet on these

facts compensation was paid. Nothing with a substantially similar argument has

subsequently been before the UKSC to see how the court will develop this point.

However, the inconsistency seen in the takings cases is evident in the A1P1 cases.

To illustrate, in R (Trailer and Marina (Leven) Ltd) v Secretary of State for the

Environment, Food & Rural Affairs895 a new regulatory regime had been introduced

meaning that compensation for not developing boating and fishing activities (which

had previously been paid) ceased to be payable. This was not considered to be a

breach under A1P1. In this case Lord Neuberger distinguished between taking or

depriving of property (which typically requires payment) and control of use (which

does not).896 In Trailer the court recognised powers to compensate in an, ‘extreme

case’897 but this does appear to challenge the position in Posti v Finland.898

Alexander, in looking at Lucas, focuses on the social aspect and uses this case to

illustrate the thin conception (discussed at 3.4.4) where the owner must positively

act in only a narrow number of instances but it is difficult to see how Lucas did so,

the exception being that eminent domain is a process representing ‘collective

judgment’ to determine responsibility which may require sacrifice of title in

exchange for compensation.899 Whilst Lucas did sacrifice title with a clear

environmental benefit of preserving a fragile shoreline, he was well compensated

for this loss of profit; he was paid to do the right thing900 through a commercial

decision, not the attachment to the land to which Leopold refers.901 Accordingly,

there was no net sacrifice. The Progressives promote priority of the community

interest – here, the community benefit of stopping the further erosion of the

shoreline – above an individual’s loss of potential financial gain, providing

additional justification for the inclusion of this theory as a comparison to Locke and

Stewardship. Again, as with Kelo,902 there is an ironic twist to Lucas with the plots

subsequently developed into two large beachfront properties.894 ibid [1034].895 [2004] EWCA Civ 1580.896 ibid [41-52].897 ibid [71].898 [2002] 37 EHRR 6 – compensation paid for loss of earnings to 2 fishermen – deemed a loss of control rather than deprivation of property. 899 Alexander (n454) 776.900 McGillivray, 'Water rights and environmental damage’ (n119) 212.901 Leopold (n1). See 4.2.902 See Patrick McGeehan, ‘Pfizer to Leave City That Won Land-Use Case’ New York Times (12 November 2009) <www.nytimes.com/2009/11/13/nyregion/13pfizer.html> accessed 20 January 2018. Pfizer Inc subsequently closed the New London plant.

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Whilst there is an environmental angle to Lucas, the issue remains one of

establishing an economic loss and attaching a number. It has subsequently been

questioned whether the public use element in Lucas903 – the protection of coastline

– was of greater local (or even global) community benefit than the ability to build,

sell and profit from the sale of private homes with the suggestion that a total

economic loss test would render the decision of less real value904 and, in turn,

creating a difficult to achieve benchmark reflective of a lack of cohesion in the

regulatory takings decisions.905 This looks to be true with more recent regulatory

takings case law – notably Stop the Beach Renourishment Inc v Florida

Department of Environmental Protection,906 Koontz v St Johns River Water

Management District907 and Murr v Wisconsin908 – unable to establish total takings

in line with Lucas, albeit each case raises disparate issues and challenges.

Koontz909 again illustrates the primacy of an individual’s private property interests

over the potential ecological advantages of the development of wetlands that

provide vital hurricane protection.910 The US Supreme Court held that a

government agency requiring funding for offsite mitigation projects on public lands

as a condition for obtaining a permit to develop wetlands was excessive, because

they had burdened the property with a right not to have the property taken.

Dissenting, Kagan J stated the decision, ‘threatens to subject a vast array of land-

use regulations, applied daily in States and localities throughout the country, to

heightened constitutional scrutiny’911 potentially adding to the information costs of

land as well as (critically) impeding environmental protection.

903 Lucas (n856).904 Robert V Percival, ‘Murr v Wisconsin and the Supreme Court's Regulatory Takings Jurisprudence,’ (2018) 4 University of Maryland L Studies Research Paper <https://ssrn.com/abstract=3135424> accessed 9 October 2018; supported by the lack of subsequent ‘total takings’ cases.905 Laura S Underkuffler, ‘Property and Change: The Constitutional Conundrum’ (2013) 91 Texas L Rev 2015, 2016-17.906 560 US 702 (2010) is less pertinent, to this research, as it involves the right of access to the water versus the benefit to the extended community of protecting the coastline from erosion.907 133 SCt 2586 (2013).908 582 US _ (2017).909 Koontz (n907).910 Bourne (n10); Florida Department of Environmental Protection <https://floridadep.gov/comm/press-office/content/dep-101-wetlands> accessed 13 October 2018.911 Koontz (n907) [2604].

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In Murr912 (the most recent US Supreme Court regulatory takings case), the owners

of two adjoining riverfront plots sought to sell one to raise money to renovate their

home on the other. However, a local zoning ordinance913 (enacted after the

properties had been purchased) prohibited building on the grounds that the second

lot was not large enough to develop on its own, and the two lots had been ‘merged’

into one. The owners claimed that the ordinance constituted a regulatory taking

because it deprived them of the economic value of the second lot.914 However,

unlike Lucas, there was not total taking and the claim failed because the

application was based on the whole of the plot rather than the portion earmarked

for redevelopment.915 Although this outcome appears to be protect the

environment, it should be noted that the applicants might well have succeeded had

they proceeded on the second plot alone and the economic loss would no doubt

have been more relevant than the relative benefits for the environment.

Despite this body of case law being used to illustrate the Progressives’ approach,

in reality there are flaws in the argument. The recent body of taking jurisprudence

from the US Supreme Court reserves the rights of the private property owner more

than that of the Progressives. The most recent appointments of Neil Gorsuch and

Brett Kavanaugh (by a Republican President) to the US Supreme Court may

indicate that the rights of private property owners will continue to be given

precedence. However, it is difficult to draw direct parallels to Britain beyond the

A1P1 cases mentioned above. This is because, whilst in Britain, a property owner

has a right to use and enjoy land916 subject to statutory constraints,917 similar to the

US where, ‘Property interests … are not created by the Constitution … they are

created and their dimensions are defined by existing rules or understandings that

stem from an independent source such as state law’.918 However, in contrast, the

US property owner has an underlying right to develop land,919 something that does

not exist in Britain where the first consistent approach to development was

912 Murr (n908).913 St. Croix County, Wis, Code of Ordinances Land Use & Dev 2005 sub ch III.V, § 17.36I.4.a.914 The denominator problem see Murr (n908).915 Murr (n908) [1945]-[1947].916 LPA, s1(1).917 Civil Aviation Act 1982; National Planning Policy Framework, (March 2012). Planning and Compulsory Purchase Act 2004; Town and Country Planning Act 1990; Use Classes Orders (n474); Tree Preservation Regulations (n74).918 Perry v Sindermann 408 593 (1972) 557.919 Sonia A Hirt, Zoned in the USA (Cornell UP 2014).

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introduced in the Town and Country Planning Act 1947.920 This legislation was

prompted by the post-war need to rebuild and it is suggested that it nationalised all

development values,921 requiring all development to require planning permission,

apart from in a few limited exceptions.

In addition, the US government’s ability to constrain the individual landowner for

environmental reasons is then itself subsequently restricted by the Supreme Court

as interpreter of the Constitution,922 ‘the government's power to redefine the range

of interests included in the ownership of property was necessarily constrained by

constitutional limits.’923 Arguably, multiple interpretations of the Constitution (as

discussed above) create further uncertainty (acknowledging this being an aspect of

common law) and a potential policy to protect land in the US by state legislature

and federal government could be overridden. Additionally, there is increasing

feeling that the public versus private debate within the US Supreme Court is

becoming more political924 and used by various public interest groups seeking to

promote specific property rights.

Within Britain, a Compulsory Purchase Order (‘CPO’)925 is not comparable to the

cases considered here, the indirect condemnation regulatory takings cases. The

nearest comparable to a CPO would be a direct condemnation,926 a direct taking in

which a government agency (or other entity) uses the power of eminent domain to

acquire a property, establish its value and pay the appropriate amount of

compensation due. Further, within the US, big public interest firms fund test

cases,927 an option less likely to exist in Britain to impact the outcome.

920 Stuart Bell, Donald McGillivray and Ole W Pedersen, Environmental Law (8th edn, OUP 2103) 404-05.921 Jane Holder and Maria Lee, Environmental Protection, Law and Policy (2nd edn, CUP 2007) 480-81.922 See text to n836.923 Lucas (n856) [1015] Scalia J.924 Percival (n904) 4; President Obama’s failed appointment of Merrick Garland together with President Trump’s appointment of Neil Gorsuch and Brett Kavanaugh.925 Planning and Compulsory Purchase Act 2004.926 ‘The word "condemned," at least as it was commonly used in 1901, when 25 USC § 357 was enacted, had reference to a judicial proceeding instituted for the purpose of acquiring title to private property and paying just compensation for it’ United States v Clark (1980) 445 US 253 [255] Rehnquist J.927 Kelo was funded by The Institute for Justice, a non-profit libertarian public interest law firm < http://ij.org/> accessed 29 May 2018; Pacific Legal Foundation <https://pacificlegal.org/> accessed 29 May 2018.

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3.4.3. Human Flourishing and Virtue

This section will explore human flourishing, the land virtue and the ethics

supporting Progressive Property and will argue that whilst there exists a clear

ethical foundation, the Progressives are seeking a myriad of interconnected goals

– much the same as Sustainability – however, there is one aspect that receives

considerably less attention: the environment. Aristotle, one of the early advocates

of private property rights928 whom some academics argue created the idea of a

public use/interest test,929 forms the philosophical basis for Alexander and

Peñalver’s research. Aristotelian virtue ethics930 is broadly the notion that a man of

good character does the right thing, at the right time, and in the right way.931 In

broad terms virtue ethics focus on the individual and his/her attitude, in priority to

the outcome of any given action; it is more important to act for the right reasons.932

It is suggested that virtue ethics implies that humanity gives due consideration to

the environmental impact of our decisions.933 Environmental virtue ethics can

however, take the form of an anthropocentric approach, as illustrated by

Hursthouse with reference to animal suffering in supplying meat to consume.934

She further supports this by reference to Aristotle who viewed plants as existing for

animals and all other animals exist for humans;935 arguably an understandable

perception in the 4th century BC. Yet, the virtue ethics the Progressives draw upon

are not environmentally based but socially based, seeking a form of social equity in

land ownership within private property. The Progressives sit within this framework

of virtue ethics but there are a variety of interpretations amongst them. For

Alexander the emphasis is very much an anthropocentric approach lacing

928 ‘Aristotle responded [to Plato] by arguing that private ownership promotes virtues like prudence and responsibility’ Waldron, ‘Property and Ownership’ (n155); Eric R Claeys, 'Virtue and Rights in American Property Law' (2009) 94(4) Cornell L Rev 889, 889. 929 Alejo José Sison and Joan Fontrodona, 'The Common Good of the Firm in Aristotelian-Thomisitic Tradition' (2012) 22(2) Business Ethics Q 211, 211-14.930 Aristotle’s two ethical treatises: the Nicomachean Ethics and the Eudemian Ethics.931 Höffe and Otfried (ed) Aristotle, Nicomachean Ethics (Brill 2010) ProQuest ebrary.Web accessed 26 September 2016; Eric R Claeys, 'Virtue and Rights in American Property Law' (2009) 94(4) Cornell L Rev 889, 902; Peñalver (n835), 864; Alexander (n545) 748.932 John Alder and John Wilkinson, Environmental Law & Ethics (Palgrave Macmillan 1999) 42-43.933 ibid 43.934 Rosalind Hursthouse, 'Environmental Virtue Ethics' in Rebecca Walker (ed), Working Virtue: Virtue Ethics and Contemporary Moral Problems (OUP 2009) 156.935 ibid 158.

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economic values on the land as a commodity. Alexander defines human flourishing

as enabling, ‘individuals to live lives worthy of human dignity’ which, ‘may also

promote social utility, economic efficiency, or similar values’.936 However, ‘social

utility’, ‘economic efficiency’ and ‘similar values’ are not defined by Alexander

perhaps because he considers human flourishing as being something that cannot

be reduced to a ‘single scalar metric’937 and is leaving the idea open for

development. Peñalver leans more towards the social aspect and offers

Aristotelian virtue ethics as a preferable way of considering property law because it

allows morality not economics alone to affect policy.938 Peñalver’s definition of

virtues reflects that of Alexander in general terms939 but he seeks a broader moral

framework to be, ‘sufficiently capacious to encompass the value of personhood,

the demands of liberty, and the important goal of enhanced social welfare’.940

Alexander and Peñalver have been challenged in their use of the label Aristotelian

by Claeys as they exclude a wide range of virtue theories,941 but he concludes that

the philosophical theories make significant contributions to legal philosophy.942

There is a slight divergence in that Peñalver places more emphasis on social

welfare than Alexander but fails to address how the law can help bring land use

practices into balance with moral obligations.943 A possible justification is again that

the Progressives have not yet fully formed the theory; it is open to further

development. Lovett analyses Progressive Property in the context of the Land

Reform (Scotland) Act 2003 (LRSA 2003)944 suggesting what is possible with

property law design,945however, the more recent Scottish legislation – the

Empowerment Act 2015 and the Land Reform (Scotland) Act 2016 – are truly

innovative, bringing enhanced community rights-to-buy,946 giving a hint as to how

Progressive Property could be utilised in the framework of new legislation. As

936 Alexander (n454) 758.937 ibid 750. This perspective has similarly been argued in relation to sustainability see 5.3.938 Peñalver (n835) 841; Rosser (n45) 118.939 Rosser (n45) 120.940 Peñalver (n835) 836.941 Eric R Claeys, 'Virtue and Rights in American Property Law' (2009) 94(4) Cornell L Rev 889, 902, 904 but acknowledges they are not part of the virtue ethics in the strict sense.942 ibid 904.943 Rosser (n45) 120.944 Lovett (n836).945 ibid 742.946 Malcolm Combe, 'The environmental implications of redistributive land reform' (2016) 18(2) Environmental L Rev 104, 120.

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discussed above, this theory places humanity at the centre with the goal being to

change law and policy to reflect virtue ethics, in contrast to this research which

takes a strong sustainability approach,947 placing the land at the centre but

acknowledging that there are many other factors. A fundamental flaw in the

Progressives’ thinking is that they do not clearly state how these goals will be

achieved and whilst there is an undeniable ‘feel good’ element in the scholarship,

to-date none of the concepts have been clearly defined. Alexander’s intentions are

clear; human flourishing is to be applied for the benefit of humanity placing an

anthropocentric approach to the way land is treated. Both Alexander and Peñalver

clearly connect to Aristotle’s values and ethics which, whilst it may be open to a

degree of interpretation,948 provide the linchpin of their work and support the values

they and the other Progressives believe should be apparent and explicitly stated.949

This is the theoretical underpinning of the theory which conflicts with the strong

sustainability approach taken in this research as will be seen in the analysis of the

rights and duties for comparison in Chapter 6.

3.4.4 The Duties within Progressive Property

This section will identify the duties within Progressive Property arguing that there is

an emphasis on social equality but little in relation to the land. Alexander does not

seek to challenge the process of eminent domain950 and describes two types of

social obligation norm. First, the thin version where positive action is required by

the owner, ‘only for the purpose of providing narrowly defined public goods’951

(even though he believes this to be incorrect and incomplete because owners

cannot use their property to harm others952 and there are a wide range of

obligations on an owner of property953). Second, the thicker version that

incorporates the idea of community and develops a theory described as, ‘liberal 947 See 4.4.1.948 Claeys (n897) 902 acknowledges it is hard to pin down what ‘virtue ethics’ is.949 Joseph William Singer, 'Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity' (2014) 86(3) Indiana L J 763, 776.950 Alexander (n454) 776.951 ibid 753-54 public goods are national defence, law enforcement and fire protection. 952 ibid 754.953 ibid 754.

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even while it focuses on community’.954 Justice, a key theme, underlies both

versions but the fundamental point for Alexander (and the other Progressives) is

that the justice that underlies the thick version allows for greater wealth distribution

– a key element in the Progressives’ work955 – placing humanity at the centre but

seeking greater equality. The social equality and wealth distribution focus of the

Progressives sits within a clear social and economic context956 but this distracts

them from fully addressing the rights within the US paradigm.

Alexander argues that the current US paradigm presents an owner with the right to

exclude others yet owes no further obligation. However, he believes this image is,

’highly misleading’ because there are many exceptions in common law, in statute

and in the US Constitution;957 broadly similar to the neo-liberal model in Britain

where cuius est solum958 is limited by statute and common law.959 Alexander argues

that property owners do in fact owe more duties (something like the social-

obligation norm), which on occasion are recognised but he also acknowledges that

this is only evident on a sporadic and implicit basis.960 Alexander seeks to show

that US public and private property law has partially internalised this duty albeit

indirectly, and to demonstrate this through instances when private owners are

required to sacrifice their ownership in some way for the benefit of the wider

community.961 Typically this is either where an owner is required to sell property in

the interest of the community or to keep the property but be restricted in using it in

a way that is deemed contrary to the community’s interest.962 Alexander illustrates

his argument through doctrinal examples of US eminent domain law,963 using

frequently cited cases such as Kelo and Lucas (discussed above)964 to illustrate the

intersection of private rights and ‘public use’, being the language in the Fifth

954 ibid 754.955 Singer 'Original Acquisition of Property’ (n902) 766.956 Clarke and Kohler (n103) 3.957 Alexander (n454) 747. 958 See text to n107.959 For example Police and Criminal Evidence Act 1984; Town and Country Planning Act 1990; Use Classes Orders (n474).960 Alexander (n454) 748.961 ibid 774-75.962 ibid 776-77.963 ibid together with a comparison with South Africa and nuisance. 964 Kelo (n872); Lucas (n856); Penn Central Transportation Co v New York (1978) 438 US 104; State v Shack (NJ 1971) 277 A 2d 369 the US Federal government may exercise the power of eminent domain which is the power to take private property for public use ‘a taking’, which is subject to two limits: that the use must be a ‘public use’ and it must be ‘with just compensation’.

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Amendment.965 However, neither case proves entirely satisfactory perhaps

because in looking at Lucas and Kelo it is difficult to distil consistent logic from

such disproportionate decisions. It is noted that an economic analysis was applied

in both over and above the social context; Kelo clearly justified ‘public use’ in the

form of financial benefit whilst Lucas prioritises the individual’s right to benefit

financially from the land over and above the public benefit in protecting the

shoreline. Alexander provides a more satisfactory illustration of the social-

obligation theory through several cases on the right to exclude beach access

where US courts have permitted public access966 on various doctrinal grounds.967

Here the case law connects to the US Public Trust Doctrine (discussed in more

detail at 4.6) that has been extended by the US Courts to provide the access968

(albeit potentially damaging the beaches) which is in marked contrast to Lucas with

its right for an individual to make financial gain (thereby commodifying property).

A duty exists within Progressive Property albeit not one that is clearly defined

beyond supporting human flourishing, thereby reflecting a sense of the human

equality in the literature that ownership imposes duties on both the owner and the

rest of society.969 Yet, as Rosser points out, Progressive Property, ‘does not delve

into specifics about what in property law should be changed and what concretely

should be expected of owners’.970 Beyond ethics, there is a briefly mentioned

community based duty971 that provides little in the way of substance as to its true

nature but does reflect the benefits of ownership to humanity, again placing

humanity at the centre of this theory. This is reflected in the comparison in Chapter

6.

3.4.5. Rights in Progressive Property

965 See 3.4.2.966 Alexander (n454) 801-02. Historically public access to beaches was quite limited to only the land between the mean high and low tides being the wet-sand areas and only to fish. 967 ibid 802 fn 220; Matthews v Bayhead Improvement Association (1984) 471 A2d 355 NJ Alexander cites examples of this being extended to include recreation;

Raleigh Avenue Beach Association v Atlantis Beach Club (NJ 2005) 879 A2d 112 where the public is entitled to access the dry sand area regardless of who the owner is; and Rose, 'The Comedy of the Commons’ (n260) and suggests that a beach could be substituted for a park, extending the concept.968 ibid.969 Rosser (n45) 121.970 ibid 121.971 Peñalver (n835) 838.

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This section will argue that there is a lack of clarity around what the rights of the

owner are intended to be in Progressive Property scholarship, perhaps as a

reaction to dissatisfaction around the existing liberal private property model in the

US972 with its emphasis on the right to exclude.973 This section will map the existing

rights and highlight the gaps in current thinking. The focus within Progressive

Property has been to identify or reinforce a duty and consequently little has been

written specifically as to what the rights of the owner will (and should) be.

Accordingly, this presents several options around interpretation.

First, it could be concluded that the rights of the owner are intended to be those

contained within the current liberal US private property paradigm with the literature

silent around what the rights of the owner should be.974 Purdy, in support, points

out that a notion of having rights but not obligations is appealing to those with,

‘ideas of self-mastery, self-authorship, and personal responsibility, which all have

deep roots in the American ethos’. 975 However, whilst this may reflect wider

sentiment in the US it does not reflect the views of the Progressives and

accordingly must be dismissed.

The second approach is to accept that it remains a work in progress, in that the

Progressives themselves have not yet determined what the rights of the owner

should be. This presents two options on interpretation for use in this research:

either there are no rights or the rights within the current paradigm should be

assumed. However, in seeking to identify the rights some inference can be drawn

from the shared common heritage of the US private property paradigm with that of

the English. In later work, Alexander and Peñalver look to be moving away from

the bundle of rights analysis, which they feel impedes the way property institutions

are viewed.976 They suggest that the problem with emphasising one of the sticks in

the bundle is that there are private property systems where it is absent, where

972 Post 1783 the US retained the already established English legal system and the current paradigm is the liberal property model; Alexander (n454); Singer (n611).973 Joseph William Singer, 'Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity' (2014) 86(3) Indiana L J 763, 775;Alexander (n454); Alexander, Peñalver, Singer and Underkuffler (n44); Rosser (n45).974 Greater emphasis is placed on exclusion in the US; Dolan (n857); Jacques v SteenBerg Homes Inc 563 NW 2d 154 (Wis 1997).975 Purdy (n831) 954.976 Alexander and Peñalver (n164) 2.

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landowners do not have an overriding right to exclude others.977 However, as they

do not appear at this stage to be moving away from private property as a resource

allocation framework, it is reasonable to suggest that they are working within the

current liberal paradigm. Given the Progressives’ resistance to the dominance of

the right to exclude, and an acknowledgment of the encroachments on the liberal

paradigm, the rights included for comparison will be included as limited, except for

the power of transmissibility which will be a full-right. This will be explored in more

detail in Chapter 6.

3.5 Conclusions

This chapter has identified the rights and duties demonstrated by the three selected theories of property (the Liberal paradigm, Stewardship and Progressive Property) in response to the sub-research question as being: a

limited right to enclose (and exclude) and little in the way of a duty to care for the

land (Liberal paradigm); limited rights to exclude, alienate and control and a duty to

the land (Stewardship); limited rights to exclude and a duty to support human

flourishing and prevent harm (Progressive Property). The conclusions will be used

objectively to compare the three theories using the Incidents of Ownership as a

means of mapping the theories with and without the inclusion of the new

Sustainability Restriction (in Chapter 6).978 This chapter has also evidenced that

behind these rights and duties are highly emotive ethics and politics; as Alexander

observed, ‘property disputes raise passions, at both personal and political levels’.979

Ethics and politics have not been included in the test criteria as a separate

category but inform the rights and duties elements of all three theories.

977 ibid 4 Sweden is the example used. 978 See 6.3.979 Alexander and Peñalver (n164) 1.

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Chapter 4 Sustainability

4.1 Introduction

Blewitt eloquently sums up the extent of humanity’s abuse of our planet: ‘Earth

itself has been treated simultaneously as a factory, pleasure park, garbage dump,

larder, market place and war zone’.980

Chapter 4 introduces sustainability and sustainable development – the second limb

of the theoretical framework to this research – identifying links to property theory

(Chapter 2) and setting out why it has been selected as the theory to underpin the

new Sustainability Restriction developed through Chapters 5 and 6 to identify the

most effective model of property in response to the main research question. The

sub-research question asks what is the connection between sustainability and the theories of property in land? This is answered through three distinct topics:

the selection of a strong sustainability approach981 (discussed further at 4.4) with its

emphasis on the environment and ethical underpinnings;982 the use of sustainability

theory as the foundation for the new Sustainability Restriction, used with Honoré’s

Incidents of Ownership (in Chapter 6) to compare and map the three theories; a

pragmatic approach to humanity’s reluctance to change, based on sustainability

literature, and the decision to seek to affect a change within an existing and familiar

paradigm (here in the form of acknowledgment followed by action); and an

awareness that sustainability is a balancing of competing needs.

To answer the sub-research question this chapter will begin with a discussion on

the need for clear definitions of sustainability and sustainable development and the

challenges in achieving these (later arguing that progress, certainly from a

legislative perspective, has been impeded by the lack of consensus on this point),

and will address why the definitions used in this research have been selected, and

in so doing, set out a distinction between the concept of sustainability and being

sustainable. Leopold’s Land Ethic983 will be examined in the context of being the

ethical foundation to Stewardship, Sustainability and this research, seeking to

reconnect humanity back to the land through a familiar mechanism. Environmental

980 John Blewitt, Understanding Sustainable Development (2nd edn, Earthscan from Routledge 2015) 1.981 See 1.1; 4.4.1.982 See 4.4.983 Leopold (n1).

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Psychology is touched on in support of the argument to promote a connection

between humanity and the planet primarily through education,984 underpinning the

pro-active or reactive change sought in this research. Additionally, psychology

evidences the two demographic groups most likely to connect with the

environment, which in turn connects to the major estates.985 The next section will

then address what these concepts actually involve – beyond the definitional – and

will argue that humanity’s reluctance to change is the prompt behind the approach

taken in this research being partially responsible for the lack of legislation in this

field. Consideration will be given to the significant gap in sustainability literature,

legislation and policy, specifically in the lack of substance afforded to the notion of

‘future generations’; this connects directly to the main research question which is

seeking the most effective model for the future. The chapter will then posit that the

new Land Model – or perhaps more importantly the new Sustainability Restriction –

can be implemented through legislation that will modify property in Britain.986 This

will be followed by a critical evaluation as to why sustainability has not yet fully and

successfully evolved from policy to legislation. To conclude, the final section will

draw together all the elements of this chapter, connecting aspects to other

chapters and will summarise how and why sustainability and the theories of

property can be connected to answer the sub-research question providing a link

through to Chapter 5 in which the new Sustainability Restriction will be created to

form the test used in Chapter 6 to answer the main research question: What is the most effective model of property to protect land as a part of the environment for the future?

4.2 Background

This section will briefly outline the origins of sustainability highlighting in doing so

the lack of cohesion reflected in the literature, an issue similarly evident when

exploring the property theories in Chapter 3. For some, the genesis of sustainability

984 See also Helena R Howe, 'Making Wild Law Work-The Role of Connection with Nature and Education in Developing an Ecocentric Property Law' (2017) 29(1) J of Environmental L 19.985 See2.4; 6.5.2.986 See 4.7.

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can be traced back to the 15th century;987 for others, to the late 18th century988 with

an awareness that (whilst renewable to an extent) more trees were being cut down

than the numbers being replanted and allowed to reach maturity;989 and for yet

another group, the journey began with the environmentalist movement in the 1960s

with one such proponent being Leopold who created his Land Ethic990 (discussed

further at 4.4). Dresner focuses on the modern approach to sustainability991 while

the Report of the World Commission on Environment and Development: Our

Common Future (‘the Brundtland Report’)992 suggests that the Overview Effect993

prompted a shift in man’s perspective, ‘From space, we see a small and fragile ball

dominated not by human activity and edifice but by a pattern of clouds, oceans,

greenery, and soils’.994 The difference of opinions around the origins of

sustainability are reflected by the range of contemporary opinions as to what

sustainability is, how should or could humanity be sustainable, and why humanity

should be sustainable, all of which make it a highly amorphous concept.

4.3 Defining Sustainability and Sustainable Development

The plethora of uses of ‘sustainable’ has arguably caused the word to decline into

a nonsense: ‘sustainababble’;995 there are, ‘literally hundreds of attempts to define

sustainability’996 and it is widely acknowledged that there is no uniformly accepted

definition.997 The problems in defining sustainability and sustainable development 987 Bosselmann, The Principle of Sustainability (n145) 13-14 refers to the Allmende (Common land) system. See also Bosselmann, ‘From Reductionist Environmental Law (n142) 207 suggests that the system recognised public ownership of the land to protect from overuse.988 Margaret Robertson, Sustainability Principles and Practice (Routledge 2014) 3. See also Leopold (n1) 203 who refers back to the days of Ezekiel and Isaiah when it was noted that despoliation of land is not only inexpedient but wrong.989 ibid 3 refers to Nachhalitigkeit in Sylvicultura Oeconomica (1713); Blewitt (n980) 6.990 Leopold (n1) 207. See also Coyle and Morrow (n656) 139; Freyfogle, ‘Taking Property Seriously’ (n164); Robertson (n998) 13.991 Simon Dresner, The Principle of Sustainability (Earthscan 2002) 1 dates the ‘modern’ from The World Council of Churches in 1974.992 Brundtland Report (n100).993 The phrase given to the profound effect reported by some astronauts when viewing the Earth from orbit or from the moon.994 Brundtland Report (n100) ch 12 (1).995 Robert Engelman, State of the World Is Sustainability Still Possible? (Island Press/Center for Resource Economics 2013) <http://blogs.worldwatch.org/sustainabilitypossible/wp-content/uploads/2013/03/SOW2013-01-Engelman.pdf> accessed on 4 March 2016; Bosselmann, The Principle of Sustainability (n145) 9. 996 Peter Jacques, Sustainability the basics (Routledge 2105) 19.997 Bosselmann, The Principle of Sustainability (n145) 9.

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are explained by Bell and Morse, ‘Almost every article, paper or book on

sustainability bemoans the fact that the concept is broad and lacks a broad

consensus; this is usually followed by the author’s own preferred definitions, which

in turn adds to the lack of consensus’.998

This section will explore some of the key definitions used to define both

sustainability and sustainable development and will discuss the challenges

presented. The definitions used for the purpose of this research have been stated

at 1.2 and this section will further support these choices.

4.3.1 Sustainability

Despite the colloquial habit of using sustainability and sustainable development

interchangeably,999 this research supports the argument for clear distinction.1000 The

multitude of meanings has almost certainly arisen from attempts to describe

something non-tangible, something highly personal to individuals, groups and

organisations, something more akin to an ideal.1001 There is a difference between

sustainability as a noun (the aim) and the verb (the action of ‘doing’ or achieving

sustainability) and whilst the ultimate goal can be the same, the doing needs to be

flexible as it is an evolving – not a static – concept1002 moving in step with the

evolving needs of planet Earth. This is evidenced by the Planetary Boundaries

Concept developed by Rockström et al1003 which suggests that Earth has nine

boundaries described as the, ‘safe operating space for humanity’1004 (discussed

further at 5.5.2). So, even as humanity finally starts to focus more seriously on

some of these boundaries (such as climate change) there remain many others

(such as ocean acidification) yet to catch the public conscience, further illustrating

that the ‘doing’ of sustainability must be an on-going, adaptable process.1005

Typically, UN Reports, Government Reports and policy, and corporate entities do

not attempt to define sustainability but tend to focus on sustainable development or 998 Bell and Morse (n148) 10 999 Stephen Morse, Sustainability (CUP 2010) 1.1000 Stallworthy (n166) 1.1001 Klaus Bosselmann, Ron Engel and Prue Taylor, Governance for Sustainability (IUCN 2008) viii.1002 Anthony M H Clayton and Nicholas J Radcliffe, Sustainability A Systems Approach (Earthscan 1996) 7; Brundtland Report (n100) ch 1 (3) 30.1003 Rockström et al, ‘A safe operating space’ (n8).1004 ibid 472.1005 ibid. See also 5.5.2.

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a variation thereof1006 almost certainly with how best to promote their particular

interest in mind.1007 The challenge around providing clarity in defining sustainability

cannot be underestimated; it is essential to ensure there is an understanding of

what the goals are. This research has selected Ross’s definition as discussed

further below but some time should be spent considering why this is preferable to

other possible definitions.

Robertson describes Sustainability in rather woolly terms (‘systems and processes

that are able to operate and persist on their own over a long period of time’).1008

Stallworthy provides a fuller definition but one that arguably lacks sufficient impetus

(‘about respecting the processes at work in our ecosystem so as to ensure, or at

least prolong, our survival as a species, and concerns our level of connectedness

with future generations’).1009 Jacques proposes a more encompassing, robust

definition yet it makes no mention of attempting to re-build or ameliorate damage to

the environment nor does it impose a positive obligation to act:

[S]ustainability is the imperfect process of building and maintaining global

social systems of capable, accountable, adaptive, just and free people who

can make important decisions and trade-offs with foresight and prudence

and who foster the robust, self-organizing, dynamic, and complex

ecosystems around the world for now and future generations.1010

Bosselmann deftly sidesteps the risk of being challenged over his choice of

definition by suggesting that sustainability can be seen in terms of a principle – an

ideal – in terms of a journey rather than a destination.1011 However, previously in

Governance for Sustainability (perhaps as a precursor to the journey metaphor) he

suggests that sustainability can be, ‘conceived as a fundamental principal to guide

human conduct with respect to natural systems’.1012 Whilst this reflects the ethics

within sustainability it does not really provide guidance as to how humanity should

conduct itself. These disparities reveal that sustainability is typically defined based

on the ethical perspective – what the concept actually means to the individual or

1006 Brundtland Report (n100); Marks & Spencer plc use ‘sustainable’ in relation to the 17 SDGs <http://planareport.marks and spencer.com/M&S_PlanAReport2015.pdf> accessed on 31 March 2019; Unilever plc have a ‘sustainable living strategy’ <www.unilever.co.uk/sustainable-living/> accessed on 31 March 2019.1007 ibid.1008 Robertson (n998) 3.1009 Stallworthy (n166) 1.1010 Jacques (n969) 19.1011 Bosselmann, The Principle of Sustainability (n145).1012 Bosselmann, Engel and Taylor (n952) 7.

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group – evidenced in the distinction made between strong and weak sustainability,

discussed further at 4.4.1.

The main research question seeks the most effective model of property to protect the land, as part of the environment, for the future. A strong

sustainability approach will better support this for two reasons: first, a weak

sustainability approach has clearly had limited effectiveness to-date (discussed in

more detail below at 4.7); and second, a strong sustainability approach imposes a

duty to act to ameliorate any damage already done thereby affording the best

protection for the land, as part of the environment, for the future. Accordingly,

Ross’s definition of sustainability as, ‘a duty on everyone to protect and restore the

integrity of the earth’s ecological systems’1013 (taken from her observations on

ecological sustainability1014) will be used for the purpose of this thesis as the

definition of what strong sustainability should be (discussed at 4.5). This is

additionally supported by Ross’s observation, ‘to be truly sustainable decision(s)

need to consider long term consequences of human activity on the planet as a

whole and on its inhabitants’,1015 reflecting the duty to act which underpins this

research through a two part ethical change (expressed in terms of

acknowledgment of a need to change, followed by action itself) in imposing a

restriction on humanity. This represents one of the equity elements of sustainability

in that this generation’s problems should not be left for the next to have to deal

with. However, this is not a perfect definition in that there is a vital omission with

no direct reference to future generations – those who ultimately will benefit –

however it is argued that this is implicit in that the definition places a positive duty

on humanity to restore damage done, thus protecting the planet for the future, and

therefore future generations.

4.3.2 Sustainable Development

Sustainability is the overarching aim but sustainable development is how this is

achieved, the mechanism or approach to implement sustainability, the ‘doing’ of

sustainability, how humanity can enact sustainability. However, agreeing a clear

definition of sustainable development also continues to provoke heated debate1016

1013 Ross, Sustainable Development Law (n70) 292 Jacques (n969) 37. 1014 See 4.4.1.1015 Ross, Sustainable Development Law (n70) 3.1016 Andrea Ross, ‘Why Legislate for Sustainable Development? An Examination of Sustainable Development Provision in UK’ (2008) 20(1) J of Environmental L 35,

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much of which is centred around the ‘popular’1017 and commonly used1018 definition

from the Brundtland Report:1019 ‘development which meets the needs of the present

without compromising the ability of future generations to meet their own needs’

(‘the Brundtland Definition’).1020 This definition was one of the first of its kind and

sought to elucidate the aim at a time when the dangers to the planet were not fully

recognised. Bosselmann argues that the Brundtland Report could have first

defined sustainability and then used that definition to, in turn, form a definition for

sustainable development but instead chose to introduce a ‘quite different, broader

concept’.1021 This is a sensible point but one made 20 years after the event, and

fails to account for external issues such as national and international politics.

Over 30 years later, the Bruntland Definition still has advantages but also presents

challenges. The critical issue is that it places ‘development’ at the beginning and

this is frequently interpreted as being economic development, measured in terms

of growth, which presents a fundamental problem in that when seeking to act

sustainably, an emphasis on growth might not always lead to the best outcome. In

terms of sustainable development, economic growth has been challenged notably

by Jackson and Raworth1022 who suggest that it might not be the best option in

furtherance of sustainability, as discussed in more detail at 4.5. Ross argues in

support of the Brundtland Definition as it pulls together conflicting ideas which was

clearly a challenge faced by the UN, yet she points out that in the UK this has

subsequently been expressed to mean different things exacerbating the lack of

35-44 accepts this definition as the most common but acknowledges there is no consensus on the meaning; Colin Reid, ‘Environmental Development and Sustainability’ in Elaine E Sutherland, Kay E Goodall and Gavin F M Little (eds) Law Making and the Scottish Parliament: The Early Years (Edinburgh UP 2011) citing ‘Scottish Office, Down to Earth – A Scottish Perspective on Sustainable Development (1999) 4; Sustainable Development: The UK Strategy (Cm 2426, 1994) 32; ‘[T]here are no uncontested positive definitions of sustainability’ Jacques (n969) 39.1017 Victoria Jenkins, 'Placing sustainable development at the heart of government in the UK: the role of law in the evolution of sustainable development as the central organising principle of government' (2002) 22 LS 578, 579.1018 Morse (n999) 15; Ross, Sustainable Development Law (n70) 15.1019 Brundtland Report (n100).1020 ibid ch3, IV, 1.1021 Bosselmann, The Principle of Sustainability (n145) 25.1022 Jackson, Prosperity Without Growth (n32); Tim Jackson, 'The Cinderella economy: an answer to unsustainable growth' (2012) The Ecologist <www.theecologist.org/blogs_and_comments/Blogs/other_blogs/1507111/the_cinderella_economy_an_answer_to_unsustainable_growth.html> accessed 6 June 2016; Raworth (n51).

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clarity.1023 Ross’s assessment is partly accurate in that sustainable development

has evolved post-Brundtland1024 expanding to become the 17 SDGs.1025

Optimistically, Ross suggests a movement towards strong sustainability arguing

that whereas This Common Inheritance: Britain’s Environmental Strategy used

sustainable development ‘cautiously’ balancing economic growth with

environmental issues,1026 the publication of One Future – different paths: The UK’s

shared framework for sustainable development1027 provides a new approach

towards strong sustainability, no longer placing high economic growth at the

forefront and acknowledging that the Earth has limits.1028 However, despite

delivering constitutional reform through the creation of the Sustainable

Development Commission (‘SDC’),1029 the Blair government’s approach continued

to pursue high economic growth,1030 although the policy did contain a greater

commitment to intra-generational equity issues both inside and outside the UK.1031

It is argued here that One Future – different paths was actually less a strong

sustainability approach but more a re-wording with the goal being, ‘to enable all

people throughout the world to satisfy their basic needs and enjoy a better quality

of life without compromising the quality of life of future generations’.1032 In reality,

this is a weak sustainability approach virtually identical to the Brundtland Definition

but pulling in the rights of those people living in the world; admittedly a step forward

but not sufficient given that this definition still implicitly promotes economic growth 1023 Ross, Sustainable Development Law (n70) 180 compares the trade-off between environmental protection and economic development to a the complex concept of five guiding principles used in concept with 5 guiding principles developed in SCD, Governing for the Future -The opportunities for mainstreaming sustainable development (SDC 2011).1024 Our common future: a perspective by the United Kingdom on the report of the World Commission on Environment and Development, World Commission on Environment and Development (1988) stated that, ‘there can be no quarrel with the [Brundltand principles] as a general definition. The key point is how translate it into practice, how to measure it, and how to assess progress towards its achievement’; Ross, Sustainable Development Law (n70) 23.1025 17 SDGs (n54).1026 Ross, Sustainable Development Law (n70) 123.1027 SDC, One Future – different paths: The UKs shared framework for sustainable development (2005) Cm 6467 <www.sd-commission.org.uk/data/files/publications/050307One Future - Different Paths.pdf> accessed 8 March 2016.1028 Ross, Sustainable Development Law (n70) 26.1029 Created in June 2000 but closed 31 March 2011.1030 Goldilocks economics.1031 Ross, Sustainable Development Law (n70) 25.1032 SDC, One Future – different paths (n978), 7; DEFRA, Securing the Future delivering UK sustainable development strategy (March 2005) 6 <www.gov.uk/government/uploads/system/uploads/attachment_data/file/69412/pb10589-securing-the-future-050307.pdf> accessed 8 March 2016.

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which is often considered to go hand-in-hand with quality of life.1033 In contrast,

Holder more cautiously suggests we are ‘inching’ towards ecological

sustainability;1034 whilst this would clearly be a more desirable outcome, progress is

tenuous.1035

Looking beyond Britain, the United Nations has continued to fall back on the

Brundtland Definition. This is evident from a failure to re-define sustainable

development in the United Nations Conference on Environment and Development

(‘UNCED’)1036or the United Nations World Summit on Sustainable Development

(‘UNWSSD’).1037 Similarly, albeit whilst addressing climate change rather than

sustainability, the United Nations Framework Convention on Climate Change

(‘COP21’) mentioned sustainable development but made no attempt to re-define

it.1038

In terms of a specific definition of sustainable development, this research has

selected the Well-being of Future Generations (Wales) Act 2015 (Well-being Act)

which aims to impose a sustainable development obligation on public bodies and,

in so doing, has defined sustainable development as, ‘the process of improving the

economic, social, environmental and cultural well-being [of Wales] by taking action,

in accordance with the sustainable development principle’.1039 It requires action to

be, ‘in a manner which seeks to ensure that the needs of the present are met

without compromising the ability of future generations to meet their own needs’.1040

This is essentially a mirror of the Brundtland Definition but is preferred given its

aspiration to ‘improve’ not just ‘meet’ the needs of the people thereby reflecting

strong sustainability and a closer link to the preferred definition of sustainability in

this research.1041 Again, it is not a perfect definition with its slightly unwieldy two-tier

test and the more positive obligation to change perception is not as forceful as a

1033 Jackson, Prosperity Without Growth (n32) 77.1034 See 4.4.1.1035 Jane Holder, ‘Doing the Sustainable Development Dance’: Tracing a Critical Route from the Education for Sustainable Development Movement to Environmental Justice in Legal Education’ (2012) 65(1) CLP 145, 163 uses Planetary Boundaries; see 5.5.2.1036 UNCED (n144).1037 UN Johannesburg Declaration on Sustainable Development, Johannesburg 4 September 2002, A/CONF.199/20 (UNWSSD).1038 COP21 (n7).1039 The Well-being of Future Generations (Wales) Act 2015 (Well-being Act) Pt 2(2).1040 ibid, pt 2(5).1041 See 4.3.1.

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clearly stated ‘duty’ (although arguably in this case, this was not deemed

necessary as the Welsh referendum1042 had confirmed such a desire amongst the

Welsh people). Further, there are issues (discussed at 6.6.2) with the language

used in this legislation, specifically the process of achieving sustainable

development.1043 However, the selection of this definition retains validity as it is

used in the context of this research as a general definition.

4.4 Strong Sustainability, Ethics and Psychology

This section will perform three vital functions in this research. First, it will

distinguish between strong and weak sustainability and provide the justification for

the selection of strong sustainability, which is defined as, ‘a duty on everyone to

protect and restore the integrity of the earth’s ecological systems’.1044 Second, it

will place strong sustainability within the broader context of environmental ethics

and illustrate the connection to the ethics underpinning Stewardship and

Sustainability. Finally, it will explore environmental ethics and psychology in

support of the two-part change sought in this research (acknowledgment that

change is necessary, followed by action). The need for change – the

acknowledgment element – is evidenced in academic literature both within property

and environmental law, and within sustainability and will be further supported

through environmental psychology to argue that humanity will either pro-actively

accept the new Sustainability Restriction (discussed at 5.6 and 6.3.12), or

reactively accept the restriction in response to the incentives proposed (at 6.4.2).

4.4.1 Strong Sustainability as the Approach

A strong sustainability approach is a new perspective and is clearly distinct from

the previous anthropocentric and ecocentric approaches taken within

environmental literature; it has been selected as it places emphasis on the land

whilst acknowledging the context of sustainability. The main research question

seeks to locate the most effective model to protect the land, which proves to be

the new Land Model. To achieve this, change is needed in the form of acceptance

by humanity of the additional restriction in the way we treat our land, to reflect the

1042 Welsh Government initiative delivered through Peter Davies, Commissioner for Sustainable Futures, and managed by Cynnal Cymru - Sustain Wales, The Wales We Want <www.thewaleswewant.co.uk> accessed 8 March 2016.1043 Well-being Act, s3(1).1044 Ross, Sustainable Development Law (n70) 292.

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strong sustainability approach taken in this research as part of a two-step process

(acknowledgment of the problem, followed by action).

Strong sustainability1045 for the purpose of this research can be best expressed as

being a series of concepts that reflect, ‘a duty to protect and restore the integrity of

the earth’s ecological systems’1046 which are described as having, ‘little, if any,

consideration of the financial or other costs of attaining sustainability’1047 but placing

an awareness on the planet’s capacity to regenerate. Additionally, this approach

sits within a context1048 discussed in more detail below, with strong sustainability

representing the best approach to respond to the main research question, to locate

the most effective model of property to protect the land, as part of the environment. In the context of this research, strong sustainability is situated as

being the ideal position, as it is does not focus exclusively on the planet nor is it

purely humanity driven, as evidenced by the 17 SDGs.1049 Accordingly, strong

sustainability places an emphasis on the needs of the planet whilst enabling

consideration to be given to other factors such as gender equality thereby

reflecting a more balanced response. Secondly, strong sustainably has traditionally

been viewed as distinct to ecology and is often described as limiting the extent to

which environmental capital may be substituted by man-made capital,1050 it is

broadly critical of growth1051 and places an emphasis on natural assets that are

irreplaceable.1052 However, an awareness of the planet’s finite ability to regenerate

provides a clear connection to ecology and justifies the selection of Ross’s

definition of ecological sustainability1053 with its duty to ameliorate the damage

already inflicted on the planet and its reliance on the understanding that not all

natural assets are replaceable. This is further supported by Ross, ‘ecological

sustainability … ought to be given the same priority as other fundamental legal

principles such as justice, equality and freedom’1054 and Bosselmann and others

who believe in the need to recognise the ecological core of the concept of

sustainability, ‘there is only ecological sustainable development or not sustainable

1045 See 4.4.1.1046 Ross, Sustainable Development Law (n70) 292; see 4.3.1.1047 Bell and Morse (n148) 14.1048 17 SDGs (n54).1049 ibid.1050 Ross, Sustainable Development Law (n70) 292.1051 Bosselmann, The Principle of Sustainability (n145) 27.1052 Bell, McGillivray and Pedersen (n920) 64.1053 Ross, ‘Modern Interpretations of Sustainable Development’ (n80) 53; see 1.2.2.1054 Ross, Sustainable Development Law (n70) 287; Holder (n1035) 165.

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development at all’.1055 Bell and Morse suggest that strong sustainability is nearer

ecological sustainability than ecology per se, as there is, ‘little, if any, consideration

of the financial or other costs of attaining sustainability. It equates to what some

call ecological sustainability and the focus is primarily on the environment.’1056

The final justification for the selection of strong sustainability in this research is that

it will push humanity to accept a burden in respect of the land but critically one that

enables the more pragmatic perspective that is a key feature here, acknowledging

that humanity is reluctant to change its ways in seeking a solution within a familiar

paradigm. This is perhaps best illustrated through the use of the new Sustainability

Restriction (using the example at 2.2.1) where the restriction against tree cover

loss could come into play for personal benefit or to avert risk of damage to

buildings but could be mitigated by offsetting;1057 it seeks greater harmony between

competing needs.

In contrast, weak sustainability is described in terms where the costs of attainment

are important and, ‘typically based on a cost-benefit analysis, which inevitably

involves trade-offs between environment and social and economic benefits’.1058 The

idea is that natural and manufactured capital can be interchanged with technology,

that mankind can survive without natural resources,1059 which represents a

misplaced reliance on mankind’s ability to create the technological solutions to

replace the world’s natural resources. Despite incredible scientific advances,

human-made resources simply cannot replace the natural processes requisite to

human survival such as the ozone layer and the water cycle1060 or more localised

issues such as the damage to the Great Barrier Reef, now so badly harmed that it

is considered irreparable. Bosselmann rightly points out that weak sustainability’s

assumption of growth is valid however he is misplaced in suggesting that it places

equal importance on environmental sustainability, social justice and economic

prosperity.1061 Weak sustainability is the anthropocentric perspective with its belief

that, ‘the natural asset may be consumed or sacrificed if the overall benefit would

1055 Bosselmann, The Principle of Sustainability (n145) 23.1056 Bell and Morse (n148) 14. See also Bell, McGillivray and Pedersen (n920) 64.1057 See 6.4.6.1058 ibid 13. 1059 Bill Hopwood, Mary Mellor and Geoff O'Brien, ‘Sustainable development: mapping different approaches’ (2005) 13(1) Sustainable Development 38, 40.1060 ibid 40.1061 Bosselmann, The Principle of Sustainability (n145) 27.

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be positive’;1062 humanity is the priority. There is a gulf between the extremes of

strong and weak sustainability, one that has been characterised by Bell,

McGillivray and Pedersen who suggest that, for some, strong sustainability is

‘morally abhorrent’ as it places the needs of the environment above all else,

whereas weak sustainability is described as ‘business as usual’.1063 This business

as usual viewpoint has resulted in inertia (discussed at 4.6).

Burdon’s research1064 bears some similarities to this thesis for example with

property used as a mechanism for resolving issues,1065 challenging the economic

perspective,1066 and advocating a connection between humanity and the land.1067

However, neither is unique and one difference to this research is that Burdon

proposes a burden be placed on humanity but he fails to outline how this could be

implemented.1068 He also changes tack (admittedly in different works) in that he first

advocates an ecocentric approach1069 then Progressive Property1070 (which as

discussed at 3.4 is an anthropocentric approach) and an agrarian approach yet he

does not fully expound what this would mean. Despite his clear criticisms of the

economic perspective it still bears a sense of the commodification of the land for its

yield.1071

An argument could be made that pursuing a strong sustainability approach is at

cross-purposes with the pragmatic view taken in this research. This challenge can

be rebutted on the basis that this research hangs on a desire to see initial small

scale change which then gathers momentum in recognition that acknowledgment

and action are more likely to come about through a small but gradual change.1072

1062 Bell, McGillivray and Pedersen (n920) 64.1063 Wilfred Beckerman, A Poverty of Reason (The Independent Institute 2002) 2.1064 See 1.1.1065 Peter Burdon, ‘What is Good Land Use? From Rights to Relationships’ (2010) 34 Melbourne U L Rev 708, 710.1066 ibid 712-30.1067 ibid 718-23.1068 Burdon, ‘What is Good Land Use?’ (n1065).1069 Burdon, Earth Jurisprudence (n47) 8.1070 Burdon, ‘What is Good Land Use?’ (n1065) 731-35.1071 ibid. See also Wendell Berry, ‘The Whole Horse’ in Andrew Kimbrell (ed) The Fatal Harvest Reader (Island Press 2002).1072 See 4.7.

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Even though the Brundtland Definition has been criticised,1073 it was the first UN

report to tie up many of the loose strands and provide some direction.

Consequently, it took a more centralised position and has left the world with a

weak sustainability approach with the issues interwoven with politics and pursued

by those who think that technology advancement will always step in to save the

day, and that economic growth can be actively pursued continuously without any

recognition or acknowledgment of the resultant damage to the planet.1074

4.4.2 Ethics

Bell, McGillivray and Pedersen distinguish between environmental values as, ‘what

people believe to be important about the environment and thus what should be

priorities for environmental policy and ultimately environmental law’ and opinions

and attitudes which they illustrate with reference to ‘consumer-type’

preferences.1075 How sustainability is viewed is reflective of values and there is a

genuine move towards strong sustainability particularly evident in environmental

literature.1076 Where values reflect our principles and ideals, ethics refer to the set

of rules that govern the behaviour of a person or group. This section will support

the ethical connection evident in this research to Leopold’s Land Ethic.1077 Holder

and McGillivray highlight the ethical dimension of environmental law scholarship

focusing on the condition of the environment,1078 which connects to the main

research question that seeks a better model to protect the land as part of the

environment. Within applied ethics lies environmental ethics and the many

competing claims: anthropocentric1079 (which is further sub-divided into traditional,

enlightened, animal welfare to name a few1080); ecocentric; agroecologic;1081 and

other approaches such as ecofeminism, deep ecology, individualistic

consequentialist and deontological.1082 One area that has the most resonance with

the strong sustainability approach taken in this research is holistic ecological 1073 Janis Birkland, Positive Development From Vicious Circles to Virtuous Cycles Through Built Environment Design (Earthscan from Routlegde 2008) 29.1074 Hopwood, Mellor and O'Brien (n1059) 43; Andrea Ross, ‘Modern Interpretations of Sustainable Development’ (n80) 35.1075 Bell, McGillivray and Pedersen (n920) 45.1076 Leopold (n1). In particular the literature on Stewardship emphasises the need for a change in attitudes for example Lucy and Mitchell (n43) 557; 585; see 4.3.1077 Leopold (n1).1078 Holder and McGillivray (n860) 189.1079 ibid 12.1080 J Alder and Wilkinson (n932) 50-62.1081 Robert Traer, doing environmental ethics (2nd edn, Westview Press 2013) 243.1082 Palmer (n698) 23.

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integrity, based on Leopold’s Land Ethic1083 (discussed at 3.3.1 and 4.2). This

research argues that there is a convergence of literature from multiple disciplines

drawn to and citing Leopold’s Land Ethic, as the foundation of the ecological

philosophy behind both Stewardship and sustainability,1084 and demonstrating the

similarity in the foundation of these two concepts. Leopold also brings these two

theories together by linking Stewardship through its biblical connection to

sustainability.1085 The biblical connection is somewhat tenuous but can arguably be

seen in both concepts in a more metaphysical guise, an awareness of the moral

principles that guide our behaviour. Leopold seeks to connect humanity to the land,

which is to a degree mirrored by the later work of Stone (discussed at 3.3.5) and

Graham (discussed at 2.6). The Land Ethic is best expressed as, ‘a thing is right

when it tends to preserve the integrity, stability and beauty of the biotic community.

It is wrong when it tends otherwise’;1086 in essence we have an ethical relationship

with the land meaning that both the land and us are part of a biotic community,1087 a

symbiotic relationship. When Leopold wrote A Sand Country Almanac in the 1940s

he did not look to site his work within a precise ethical construct, even though

today it would be considered to be an ethical approach. This counters the criticism

that it represents an action to preserve the integrity of an ecosystem rather than

being a reason in itself for humanity to act.1088 Leopold has also been challenged

for failing to consider a community perspective although he includes soil, water,

plants and animals,1089 which indicate that individual interests would be balanced

against the whole.1090 However, this could be turned round to become a positive

attribute from a sustainability perspective in that sustainable development seeks to

balance numerous competing interests placing moral values in wholes, with

species and ecosystems being collections of individuals.1091 This research uses

1083 Traer (n1081) 120-2.1084 Gray, 'Equitable Property' (n139) 2; Raff (n411) 671; Coyle and Morrow (n656) 139; Kathie Jenni, 'Western Environmental Ethics: An Overview' (2005) J of Chinese Philosophy 32(1) 1, 5; Freyfogle, ‘Taking Property Seriously’ (n164); K A Carpenter, S K Katyal and A R Riley, 'In Defense of Property' (2009) 118 Yale L J 1022, 1075; Klaus Bosselmann, 'Losing the Forest for the Trees: Environmental Reductionism in the Law' (2010) 2 Sustainability 2424, 2434; Robertson (n998) 13.1085 Leopold (n1) 203 refers to the days of Ezekiel and Isaiah when it was noted that despoliation of land is not only inexpedient but wrong.1086 ibid 224-25.1087 Michael Boylan (ed), Environmental Ethics (John Wiley & Sons Inc 2013) ProQuest Ebook Central <http://ebookcentral.proquest.com/lib/surrey/detail.action?docID=1315449> accessed 4 January 2018.1088 Alder and Wilkinson (n932) 63.1089 Leopold (n1) 12.1090 Alder and Wilkinson (n932) 64.1091 ibid 63.

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property as a mechanism for change1092 within an existing and familiar paradigm in

response to humanity’s resistance to change that is so evident in sustainability

literature.1093 The change sought here is a two-part process: a fundamental shift in

perception to accept that change is needed (acknowledgment) followed by the

willingness to act accordingly (action).1094 Humanity must change its behaviour in

its relationship with the land through an adoption of a restriction in the form of the

Sustainability Restriction to modify, over time, the current property paradigm which,

in much the same way as the Liberal paradigm, would evolve to become the new

Land Model (or substantially similar) in an attempt to halt the destruction. The first

part of the change proposed – acknowledgment – is evidenced in academic

literature within property and environmental law as well as sustainability and will be

further supported through environmental psychology to argue that humanity will

either pro-actively accept the new Sustainability Restriction (discussed at 5.6 and

6.3.12), or reactively in response to the incentives proposed at 6.4. The call for

change has been highlighted throughout this research from academics such as

Bosselmann,1095 Brown Weiss,1096 Lucy and Mitchell,1097 Jackson,1098 Ross,1099 and

Caldwell.1100 Ahead of COP21 both the Archbishop of Canterbury and Pope Francis

issued the Lambeth Declaration1101 and the Papal Encyclical1102 respectively. Both

address climate change but approach the issues with a more secular viewpoint

than may have been expected, urging global equality and a change in attitude,1103

arguably drawing on the morality or ethics behind the need for humanity to change.

4.4.3 Environmental Psychology1092 Clarke and Kohler (n103) 60; Fennel (n83) 17.1093 Jackson, Prosperity without Growth (n32) 143; 171.1094 See 1.1; 4.4.1095 Bosselmann, The Principle of Sustainability (n145).1096 Brown Weiss, In Fairness to Future Generations (n42).1097 Lucy and Mitchell (n43).1098 Jackson, Prosperity Without Growth (n32).1099 Ross, 'It's Time to Get Serious’ (n55).1100 Caldwell (n764).1101 The Lambeth Declaration on Climate Change dated 16 June 2015 <www.churchcare.co.uk/images/Lambeth_Declaration_2015_on_Climate_Change_website.pdf> accessed 6 December 2015.1102 Encyclical letter Laudato Si’ of the Holy Father Francis, On Care for our Common home (24 May 2015). 1103 Laudato Si’ received a critical response from US Republicans, Suzanne Goldenberg and Sabrina Siddiqui, ‘Jeb Bush joins Republican backlash against pope on climate change’ The Guardian (17 June 2015) <www.theguardian.com/us-news/2015/jun/17/jeb-bush-joins-republican-backlash-pope-climate-change> accessed 22 October 2017.

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Environmental psychology focuses on the relationship between individuals and

their surroundings, in their homes, offices or the world. This will be explored to

suggest that the many well-documented threats to the planet (discussed at 1.1)

reflect a disconnection between humanity and our natural environment (for some

this is Mother Nature, Gaia or the Earth). This is again very similar to Graham and

Arnold’s argument (discussed at 2.5) – which draws on deep ecology literature

such as Leopold, Huxley, Carson and Naess1104 – that humanity needs to re-

connect to the planet, to nature. It is argued that acceptance of the Sustainability

Restriction could enhance the connection between people and the land; by way of

example, the Sustainability Restriction places a restriction on tree cover loss but it

is not proposed that the Sustainability Restriction exists purely in terms of

absolutes. To illustrate, a dead but potentially dangerous tree likely to fall could be

cut down with the wood piled to create a habitat for animals such as hedgehogs

and beetles, thereby fostering a connection between the owners of the land and

new inhabitants and (as discussed below) this could be subject to offsetting.1105

However, this type of positive action will require either willingness to act or, failing

that, incentives (discussed at 6.3). This section will consider what this means in the

context of this research.

It has been suggested that the disconnection between humanity and the land

stems from the biblical idea of dominion over nature,1106 which continued through

medieval times, into the Renaissance and onto our modern world.1107 This research

suggests this is partially a consequence of the commodification of property as it is

seen only in terms of the value it can bring to a person or group of people

(discussed at 2.2.1) as evident in writers such as Locke.1108 Environmental

psychology looks at environmental attitudes (basically described as concern for the

environment) and suggests they may be analysed to determine behaviour.1109

Research indicates that certain factors influence attitudes and with certain groups

more engaged with environmental issues this could promote change. Data

1104 Ralph Metzner, Green Psychology (Park Street Press 1999) 83 this research is taking taken a strong sustainability rather than ecocentric approach.1105 See 3.2.1106Ralph Metzner, Green Psychology (Park Street Press 1999) ibid 85.1107 ibid 98-113.1108 See 3.2.1109 Robert Gifford and Reuven Sussman, ‘Environmental Attitudes’ in Susan D Clayton (ed), The Oxford Handbook of Environmental and Conservation Psychology (OUP 2012) 1-2.

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indicates younger people and those involved in nature-related outdoor activities –

for example children who learn about nature informally (through reading, watching

movies, or talking about it) and teens with knowledge of specific environmental

issues (or science in general) – show higher levels of interest in and concern about

its future.1110 In contrast, it is perhaps not surprising that farmers and those living in

rural areas tend to be more anthropocentric whereas city residents tend to be more

ecocentric.1111 There are two key demographic factors that tend to influence

environmental behaviour: women and the number of years in education;1112 the

latter tending to reflect more extensive knowledge of environmental issues. So, in

conclusion, certain demographic groups – typically the younger generation,1113

women and those with a higher education – will better connect with the planet’s

issues and will be more responsive to the acceptance of a burden in the form of a

Sustainability Restriction.

Having identified those more likely to be willing to accept the new Sustainability

Restriction, the next relevant factor to consider is the tools to help promote such a

change. It is argued that this could be developed through education (particularly of

young children) and focused media messages, a tactic supported by Gifford and

Sussman who suggest that the media can have both a positive or negative effect

on attitudes1114 and that public attitudes can be swayed through an effective,

persuasive environmental message. This, they suggest, can lead to substantially

increased environmental concern; ‘it must be internally consistent … keep the

audience’s attention, and have an emotional component. Strong images can

increase pro-environmental behaviour’.1115 Gifford and Sussman further suggest

that environmental education can increase awareness and concern, and suggest

specific types of education for under-18s such as simulations of local energy use

and conservation, presenting the problem as a story or through the use of

games.1116 Education is arguably the key, to ensure the next generation understand

1110 ibid 5-11.1111 ibid 5-11.1112 Anja Kollmuss and Julian Agyeman, 'Mind the Gap: Why do people act environmentally and what are the barriers to pro-environmental behaviour?' (2002) 8(3) Environmental Education Research 239, 248 <https://doi.org/10.1080/13504620220145401> accessed 30 May 2018. 1113 See Holder (n1035).1114 Gifford and Sussman (n1109) 5-11.1115 ibid 15.1116 ibid 13.

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the issues (subject to budget and time). More pertinent to this research1117 is the

media and use of environmental images to trigger a response.1118

In this research it is suggested that those who already connect with the land are

more likely to accept the Sustainability Restriction pro-actively whereas those

naturally less inclined to do so may need a financial incentive prompt (proposed at

6.4). An incentive could take multiple forms however Grant and Sugarman define

incentives as, ‘external prompts to which the individual respond’.1119 There is clear

evidence that financial prompts tend to have an impact, supported by Kollmuss and

Agyeman, who state that, ‘economic factors do have a significant influence on

people’s decisions and behaviour’1120 although they acknowledge that it is not

always conclusive and might not reflect the whole picture.1121 Two relatively recent

examples should be considered: the sugar tax and the plastic bag charge. The

sugar tax (effective from April 2018) is applied to sugary soft drinks1122 and the

initial conclusion from the research indicates that young consumers are more likely

to lower their sugar consumption whereas older individuals1123 will simply pay more

for the old product, adding further weight to the argument that the young are more

open to change. Introduced in 2015, the plastic bag charge saw the majority of

retailers charging 5p for a new plastic bag.1124 DEFRA estimate it has resulted in an

80% reduction of plastic bags1125 proving that the public has been fiscally re-1117 LPA, s1(6) a legal estate cannot be hed by under 18s.1118 Fiona Gell, ‘The Blue Planet effect: the plastics revolution is just the start’ The Guardian (Monday 25 Mar 2019) <www.theguardian.com/commentisfree/2019/mar/25/plastics-revolution-marine-life?CMP=share_btn_link> accessed 19 November 2019.1119 Ruth W Grant and Jeremy Sugarman, 'Ethics in Human Subjects Research: Do Incentives Matter?' (2004) 29(6) J of Medicine and Philosophy 717, 719 <https://doi.org/10.1080/03605310490883046> accessed 30 May 2018.1120 Kollmuss and Agyeman (n1112) 249. 1121 ibid 240.1122 The Finance Act 2017; The Soft Drinks Industry Levy Regulations 2017; The Soft Drinks Industry Levy (Enforcement) Regulations 2017. 1123 Pierre Dubois, Rachel Griffith and Martin O'Connell, ‘How well targeted are soda taxes?’ (2017) Institute for Fiscal Studies Working Paper No 17-868. 1124 The Single Use Carrier Bags Charges (England) Order 2015; The Single Use Carrier Bags Charge (Wales) Regulations 2010.1125 DEFRA, ‘ Carrier bags: why there's a charge’ (2018) <www.gov.uk/government/publications/single-use-plastic-carrier-bags-why-were-introducing-the-charge/carrier-bags-why-theres-a-5p-charge> accessed 3 June 2018. See also UK Parliament Website <www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news-parliament-2017/coffee-cups-report-publication-17-19/> accessed 3 June 2018; DEFRA, ‘Single-use plastic carrier bags charge: data in England for 2017 to 2018’ <www.gov.uk/government/publications/carrier-bag-charge-summary-of-data-in-

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educated. It remains difficult to reconcile why some people will simply pay more for

sugary drinks but are willing to give up plastic bags and potentially single use

coffee cups. There is clearly scope for further data analysis in time but critically for

this research these examples support the theory that (even relatively modest)

financial incentives are much more likely to be successful. This will be developed

further in relation to the major estates (at 6.2.4).

4.5 Sustainability, beyond the definitional

Sustainability can be approached from different perspectives (including economic,

environmental, legal, corporate, philosophical and political) and this section will

consider the intentions behind the words. Sustainability seeks to address global

issues such as climate change,1126 biodiversity loss,1127 deforestation,1128 population

growth, economic growth, poverty, consumption, energy use, re-orienteering

technology and managing risks,1129 housing, waste and justice.1130 In essence,

sustainability is seeking to address these concerns either individually by focusing

on one aspect within the spectrum1131 or more complexly through balancing many

or all of the issues in their entirety. As Jacques observes, ‘global sustainability

involves complicated questions about economic growth, ecological intensity, and

justice around the world’.1132 This is indeed a significant challenge and not one this

research is attempting to solve however some of the key elements must be

addressed for completeness. The deeper meaning of sustainability is vital in the

context of this research for several reasons: first, to support the strong

sustainability approach taken; second, to add enhanced understanding and depth

to the selection of sustainability as the theoretical framework for the creation of a

vital component of this research – the Sustainability Restriction; and third, to

provide the motivation to seek to use an existing and familiar paradigm to respond

to the awareness within sustainability literature that humanity does not respond to

england/single-use-plastic-carrier-bags-charge-data-in-england-for-2017-to-2018> accessed 1 August 2019.1126 Rockström et al, ‘A safe operating space’ (n8) 472; Dernbach and Ross (n171) 30.1127 ibid 472.1128 WWF <wwf.panda.org/about_our_earth/about_forests/deforestation/> accessed 8 April 2015.1129 Brundtland Report (n100) ch 2(6).1130 Jacques (n996) 13.1131 For example COP 21.1132 Jacques (n996) 19.

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change, best evidenced in the context of the growth versus consumption issue

discussed below.

One of the greatest challenges facing the pursuit of sustainability is balancing

economic growth with the problems facing the planet. Economic growth is usually

seen as being desirable1133 politically and by individuals; as Jackson comments,

‘increasing affluence has been seen as synonymous with improved well-being’.1134

The foreword to the Brundtland Report states, ‘The word “development” is what we

all do in an attempt to improve our lot’1135 reflecting the popular thinking of the mid-

1980s, that economic prosperity directly equates to a better life. Ross suggests

that there is limited recognition that wealth does not always equate to well being or

happiness yet, to date, this has not been supported by any significant

developments.1136

The argument sitting at the crux of the economic growth versus protection of the

environment debate is whether people are willing to restrict consumption of

material goods and services to slow growth. This research agrees with Jackson1137

who sums this up as: ‘Society is faced with a profound dilemma. To resist growth is

to risk economic and social collapse. To pursue it relentlessly is to endanger the

ecosystem on which we depend for long-term survival’.1138

In times of financial crisis – Jackson specifically (and understandably) references

the global financial crisis of 2008 – one of the most striking features tends to be the

consensus on the need to re-invigorate economic growth, from the International

Monetary Fund (‘IMF’) to the UN Environmental Programme and from political

parties across the spectrum.1139 The reason is clear in economic terms: if spending

collapses, higher unemployment looms through businesses closing and a

government that fails to deal with the issue will be out of office. An argument can

be made that accelerated economic growth yields more to finance some of the

1133 Hopwood, Mellor and O'Brien (n1059) 39.1134 Jackson, Prosperity Without Growth (n32) 77 however, he aims to show that this misconception is inaccurate. See also Begg, Fischer and Dornbusch (n32) 424.1135 Brundtland Report (n100).1136 Ross, ‘Modern Interpretations of Sustainable Development’ (n80) 46.1137 Tim Jackson (ed) Sustainable Consumption (Earthscan 2006); Jackson, Prosperity Without Growth (n32); Jackson, 'The Cinderella economy’ (n1022).1138 Jackson, Prosperity Without Growth (n32) 187.1139 ibid 103.

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issues sustainability seeks to address such as poverty, hunger and education.1140

Prosperity without Growth, the titular pivotal argument in Jackson’s research seeks

to find a solution to the dilemma, ‘reconciling our aspirations for the good life with

the limitations and constraints of a finite planet’.1141 Economic growth is seen as the

means for rising income, which is connected to prosperity, and economic growth is

measured through GDP (discussed at 5.3). The Papal Encyclical supports the

irrationality behind the need for endless GDP growth,1142 but Jackson suggests a

way forward, ‘addressing the social logic of consumerism is vital’.1143 This clearly

highlights a fundamental impediment to the rationale and the morality of

sustainability. Having observed that, ‘consumer society seems hell-bent on

disaster; but dismantling the system doesn’t look easy’,1144 Jackson offers three

areas of potential reform: to establish ecological limits, fix the economic model and

change the social logic.1145 It is apparent that the ‘greed is good’1146 attitude is a

fundamental issue1147 and the idea of curbing consumption has proved

controversial in many countries with a complete lack or even willingness to

consider any restriction on consumption as an option, summed up by G W Bush’s

comment, ‘The American way of life is not up for negotiation’.1148 This perspective

has been supported by President Trump’s more recent withdrawal from COP21,1149

sidestepping the US National Climate Assessment1150 and is further reflected by

recent data on consumption (which addresses issues such as not over-filling

kettles, turning off lights, building passive homes,1151 reducing retail packaging and

1140 Rockström et al, Transformation is Feasible (n53) 22-25.1141 Jackson, Prosperity without Growth (n32) 3.1142 Encyclical letter Laudato Si’ (n1102). 1143 Jackson, Prosperity Without Growth (n32) 143.1144 ibid 171.1145 ibid 173-184.1146 From the film Wall Street 1987.1147 Jackson, Prosperity Without Growth (n32).1148 (Unattributed), ‘A Greener Bush’ The Economist (13 February 2003) (prior to the Rio Summit) <www.economist.com/node/1576767> accessed 6 December 2015.1149 COP21 (n7); Elle Hunt, Sam Levin and Tom McCarthy, ‘Paris climate agreement: World reacts as Trump pulls out of global accord – as it happened’ The Guardian (17 November 2017) <www.theguardian.com/environment/live/2017/jun/01/donald-trump-paris-climate-agreement-live-new> accessed 20 December 2017.1150 Ken Kimmell and Brenda Ekwurzel, ’What’s Trump hiding in the climate report? That global warming’s effects are here’ The Guardian (29 November 2018) <www.theguardian.com/commentisfree/2018/nov/29/trump-national-climate-report-climate-change-global-warming-science> accessed 31 March 2019.1151 Fiona Allon, ‘Ethnical consumption begins at home’ in Tania Lewis and Emily Potter Ethical Consumption (Routledge 2011).

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the excessive use of plastic bottles1152). Caution must be used in looking at this

type of data as illustrated by Jackson and Papathanasopoulou who point out that

from 1968 to 2000 the miles per person travelled per year in the UK has more than

doubled (from 2559 to 5565).1153 They concluded that fossil fuel consumption can

be considered as being both aspirational (being able to afford to run two cars) and

functional (for purposes such as commuting and business travel)1154 indicating that

these data can demonstrate either over-consumption or simply a social/economic

change whereby more people own cars and travel further to work.

Continuing this theme, Jackson questions why humanity continually feels the need

for more, observing that, ‘more isn’t always better, even in something as basic as

nutrition’. He establishes the connection to consumer goods, which provide a

mechanism for mankind to communicate, whereas life should be about, ‘family,

friendship, sense of belonging, community, sense of status, meaning and purpose

in life’.1155 He previously listed the roles consumer goods and services play in our

lives as ranging from satisfying functional needs, constructing identity, pursuit of

social status, maintaining social cohesion, social and/or sexual selection and

pursuit of both personal and collective meaning.1156 Durning considers the

connection between the need to consume more goods and services and human

satisfaction; he argues that what drives us to consume more is a need to consume

as much as others and more than we have in previous years, tragically concluding

that human wants appear insatiable.1157 The best hope for humanity is to look to the

ethics behind sustainability, challenging these misplaced conceptions and our

values and therefore the right thing to do; the question of how we, as humans,

should live has been the subject of debate over the centuries.1158 It is possible to

see how a radical change in perspective as to how we live could bring about a

change in attitudes in terms of consumption and consequently in many other areas.

1152 Sandra Laville and Matthew Taylor, ’A million bottles a minute: world's plastic binge 'as dangerous as climate change' The Guardian (28 June 2017) <www.theguardian.com/environment/2017/jun/28/a-million-a-minute-worlds-plastic-bottle-binge-as-dangerous-as-climate-change?CMP=share_btn_link> accessed 30 December 2017. 1153 Tim Jackson and Eleni Papathanasopoulou, ‘Luxury or ‘Lock-in’? An exploration of unsustainable consumption in the UK: 1968 to 2000’ (2008) Ecological Economics 80, 88.1154 ibid.1155 Jackson, Prosperity Without Growth (n32) 50-51.1156 Jackson, Sustainable Consumption (n1137) 8.1157 Alan Durning, ‘The Dubious Rewards of Consumption’ in Tim Jackson (ed) Sustainable Consumption (Earthscan 2006) 129-35.1158 Yannacone (n701) 80.

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4.6 Mind the Gap

The main research question seeks a mechanism to protect land, as part of the

environment, for the future. A strong sustainability approach seeks to ameliorate

damage done (where possible) and in doing so – it is hoped – provide the planet

with a better defence against what the future may bring, albeit acknowledging that

some damage may already be beyond repair. Within sustainable development1159

there is a temporal element demonstrated through ‘future generations’ and this

section will explore this frequently glossed over and fundamentally flawed aspect,

asking who or what future generations are and how they will be protected. The

conclusion is that there is not yet a sufficiently viable mechanism to protect the

land for the future (other than by protecting it in the immediate future), proposing

the doctrine of Public Trust as a possible option.

The Brundtland Report vocalises the concept of protecting the environment for

future generations, yet there is no attempt to identify what future generations

means or how their interests could be protected. Bosselmann observes that the

Brundtland Report is a plea for distributive justice between people living today and

in the future, and between mankind and nature,1160 yet provides no specific

guidance on these elements. This is similarly reflected in subsequent UN reports

such as the UNCED Agenda 21 Report that mentions future generations but does

not define them1161 as is the case with the UNWSSD.1162 Whilst the SDC’s

Report1163 proposes 5 principles of sustainable development rather than a clear

definition,1164 none of these recognise the future generations mentioned by

Brundtland. The Well-being Act 20151165 uses the words ‘future generations’ over

90 times1166 without explanation, although it did create a Future Generations

Commissioner for Wales with general duties defined as being to: ‘Promote the

sustainable development principle … to act as a guardian of the ability of future

1159 See 4.3.2.1160 Bosselmann, The Principle of Sustainability (n145) 29.1161 UNCED (n144).1162 UNWSSD (n1037).1163 SDC, Governing for the Future -The opportunities for mainstreaming sustainable development (SDC 2011). 1164 ibid 7.1165 Well-being Act (n990).1166 ibid.

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generations to meet their needs’.1167 Yet the Commissioner has no real teeth, only

a, ‘form of institutional accountability’.1168 The current Commissioner for Wales has

published a Draft Strategic plan1169 and subsequently selected six priority areas –

skills, social, adverse childhood experiences, planning, housing and transport1170 –

all of which indicate a move towards the social aspect of sustainability; a more

anthropocentric approach. Whilst it is too early to assess effectiveness, it is a

significant step in the right direction; in particular in comparison to Scotland’s

recent legislation which makes no reference to future generations.1171

Brown Weiss proposes a theory of Intergenerational Equity1172 (discussed at 3.3.2

and 3.3.3) as a possible solution. Intergenerational Equity provides for the Earth

and its resources not just to be viewed as an investment opportunity but as a trust

passed to us by our ancestors to be enjoyed, and passed on to our descendants

for their use.1173 This Planetary Trust idea conveys both rights and responsibilities;

future generations will have rights but these will only have meaning globally if we,

the living, respect them and this respect transcends countries, cultures and

religions. As a concept, it remains problematic in that it does not distinguish

between different generations of beneficiaries and there is a need for a settlor with

the intent to create a charitable trust of property1174 that could be difficult

conceptually to overcome. For example, can the whole planet really be the subject

of a trust; and how can we, the current generation, know with any degree of

certainty exactly what future generations will need?1175

1167 The Future Generations Commissioner for Wales <https://futuregenerations.wleas/fgcw-priority-areas/> accessed 9 January 2019.1168 Haydn Davies, 'The Well-being of Future Generations (Wales) Act 2015 - A Step Change in the Legal Protection of the Interests of Future Generations? (2017) (29) J of Environmental L 165, 172. 1169 Future Generations Commissioner for Wales, Draft Strategic Plan 2017-2023 <https://futuregenerations.wales/wp-content/uploads/2017/02/Draft-Strategic-Plan-ENG-1.pdf> accessed 23 June 2017.1170 The Future Generations Commissioner for Wales (n1114).1171 Land Reform (Scotland) Act 2003, Community Empowerment (Scotland) Act 2015, LRSA.1172 Used interchangeably with Planetary Trust.1173 Brown Weiss, In Fairness to Future Generations (n42) 17-18.1174 Jain Tarun, ‘Charitable Trusts: A Comparative Study of India, United Kingdom and the United States’ (June 2007) 3; 6 < https://ssrn.com/abstract=1087341> accessed 3 April 2017.1175 Bosselmann, The Principle of Sustainability (n145) 29. See also Colin T Reid, 'Conservation Covenants' (2013) The Conveyancer and Property Lawyer, 176.

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This raises two key issues. First, how can the trust mechanism actually work with

unspecified beneficiaries and then lock in for the unspecified future generations?

Brown Weiss suggests a, ‘span [of] two or more generations’1176 but does not fully

expound how, in creating a trust, it could be fully implemented to reflect this. She

outlines the issue as follows: rights can only exist when there are identifiable

interests to protect; accordingly, as we don’t know what these would be we cannot

attribute these rights to future generations1177 which in turn requires that we identify

the individuals who have rights to protect albeit we have no way of knowing who or

how many people this may involve. 1178 Having identified this issue, Brown Weiss

effectively sidesteps it by suggesting they are not individual rights but generational

rights, which is disappointingly ambiguous and does not clarify any further beyond

a group of people within a possible 25 year span.

The second issue is how can such a concept be implemented? Looking at potential

application within Britain there are conceptual difficulties to overcome creating a

trust of the Earth; and in Britain there would be an adverse impact on private

landowners’ rights. In support, Raff points out that the equitable interest of a

beneficiary is relatively weak compared to other proprietary interests, particularly

with respect to land in a registered title system,1179 the system in Britain.1180

A charitable trust1181 (unlike a ‘private’ trust which can be enforced by its

beneficiaries) must be expressed in terms of purpose1182 (meaning there is no

individual or group who could enforce the trust and the duty would fall to the AG

and the Charity Commissioner1183) has the ability to omit any specific time limit.1184

However, Garton describes a charitable trust as, ‘ill adapted for associated

philanthropy’, and suggests an unincorporated association or company limited by

1176 Brown Weiss, ‘Intergenerational equity: a legal framework’ (n550) 1. See also Brown Weiss, ‘The Planetary Trust’ (n780) 505. 1177 Brown Weiss, 'In Fairness to Future Generations and Sustainable Development' (n782) 24.1178 ibid 25.1179 Raff, 'Environmental Obligations’ (n411) 672.1180 LPA.1181 Charities Act 2011.1182 Jonathan Garton, Moffat's Trusts Law (6th edn, CUP 2015) 882-83.1183 ibid 883 in practice this is done by the Court of Appeal and/or the Charities Commission. 1184 ibid 909, Charities Act 2011, s69(1) the Court and the Charity Commission have jurisdiction to establish a scheme of administration under which specific projects are determined.

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guarantee.1185 As an alternative, Brown Weiss suggests that, for her, the most

promising option1186 is an ombudsman (similar to those inspecting government

agencies, courts and prisons1187) to provide representation for future generations

with legal standing to intervene1188 supported by a fund established to provide

finance.1189 However, this raises multiple issues such as: would it be an

international, national or regional post; how would they be selected; where would

the finance be raised from; and how would they know what the interests of people

living in 2043 (a generation from now) might possibly be? This would also

potentially gives one person/a body a significant level of power acting for a

generation not yet born.

Brown Weiss sees international law as the best mechanism for implementation.1190

She acknowledges that no international treaty contains any provision for a legal

obligation to future generations but suggests there are some that evidence a move

in the right direction.1191 It is argued here that this is idealised for two reasons: first,

International Treaties1192 often remain the purview of each nation to determine

whether to implement fully or not;1193 and second (and critically), this can leave a

treaty open to potential political bias in each country at any given time.

Having highlighted potential issues with the Planetary Trust concept this research

suggests the US Doctrine of Public Trust1194 as a potential mechanism for

implementation. The concept of Public Trust provides for land to be held by the

1185 ibid 883.1186 Brown Weiss, 'The Planetary Trust’ (n780) 572.1187 ibid 572.1188 ibid 565.1189 ibid 579.1190 Edith Brown Weiss (ed), Environmental change and international law: New challenges and dimensions (UN UP 1992) 8 the examples are The United Nations Charter, the preamble to the United Nations Declaration of Human Rights, the American Declaration on the Rights and duties of man to name but a few. See also Brown Weiss, ‘The Planetary Trust’ (n780) 540–64.1191 Brown Weiss, ‘The Planetary Trust’ (n780) 540.1192 The Vienna Convention on the Law of Treaties (in force since 1980) defines a treaty as: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. 1193 For example the Constitutional Reform and Governance Act 2010 require the Government to lay before Parliament most treaties it wishes to ratify.1194 A detailed exposition is beyond the scope of this paper. See Joseph L Sax, 'The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention' (1969) 68 Michigan L Rev 471.

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government and be available for the general public, subject to certain conditions

outlined by Sax as being: first, the property must not just be for a public purpose

but be available for use by the general public; second, it may not be sold even for a

cash equivalent; and third, it must be maintained for all types of uses.1195 The

doctrine retains a heavy focus on property rights along rivers, the seashore1196 and

riverbeds. However, it has been argued that it is a, ‘fundamental doctrine in

American property law and should be recognised much more widely than it is’,1197

which may provide greater potential for implementation thereby providing an

effective mechanism for protection of natural resources1198 in that it offers greater

flexibility than a trust through a common law doctrine, protected by legislation1199

and by the judiciary.1200 Brady suggests that the public trust doctrine is a dynamic

concept that challenges legal perceptions and assumptions about land ownership

and that, ‘the future of the public trust doctrine lies in its ability to change the way

society considers the needs and rights of future generations’.1201 Raff suggests that

it could potentially have greater application illustrated by US National Parks1202 but

does not detail specifics. This presents a clear practical problem going forward in

that to make land subject to public trust it would need to be held by the government

(in Britain). The Federal government in the US holds 28% of the total land base –

640 million acres1203 – whereas (as discussed at 2.4) the government holds very

little land in Britain. Accordingly, land currently held as private property would need

to be purchased in order to become subject to public trust which could lead to

additional problems such as providing the funding to purchase such land, and the

criteria for determining which land should be purchased. However, these issues

are not insurmountable and this provides a viable option for further development.

1195 ibid 477.1196 ibid 475; Dunning (n551) 516-17; Raff (n411) 673.1197 Dunning (n551) 516. 1198 ibid 516-18.1199 National Environment Policy Act 1970; Charles F Wilkinson, 'The Public Trust Doctrine in Public Land Law' (1980) 14 University of California-Davis L Rev 269, 293-98.1200 Wilkinson (n1199) 284-93 references the Redwood National Park litigation.1201 Timothy Patrick Brady,' "But Most of it Belongs to Those Yet to be Born": The Public Trust Doctrine. NEPA and the Stewardship Ethic' (1990) 17 Boston College Environmental Affairs L Rev 621, 623.1202 Raff (n411) 673. The land is held by the National Parks Agency, an agency of the US Federal Government.1203 Laura A Hanson, Carol Hardy Vincent, Carla N Argueta, ‘Federal Land Ownership: Overview and Data’ Congressional Research Service (March 2017) <https://fas.org/sgp/crs/misc/R42346.pdf> 1; 6 accessed 6 January 2017. Much of which is still government property because it is not good agriculture land such as Alaska.

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In the context of this research, consideration must be given as to whether access

for the public (as in the doctrine of public trust) to a beachfront would mean that the

land, as part of the environment is actually better protected. It is acknowledged that

to exclude public access would undoubtedly protect the land as it would prevent

damage from, for example, shells being removed,1204 litter left and sand dunes

damaged.1205 However, currently the decision to exclude or not is not based on

environmental concerns but economic factors; it seems that the government’s

approach is to build at all costs,1206 which is at cross purposes with the desire to

protect the land, as part of the environment. Alexander connects Progressive

Property to the doctrine of public trust in one specific context: the right to exclude

access to beaches. In the US, courts have provided public access to beaches on

various doctrinal grounds, the most controversial being the use of the doctrine of

public trust1207 as some courts have used it to extend public access to privately

owned dry-sand portions of beachfront property1208 to include recreation as a

purpose for which the public is entitled to use the beach, effectively eroding the

right of exclusive possession in an open space which arguably should be

accessible for all to enjoy. In support of his argument, Alexander cites Matthews v

Bayhead Improvement Association1209 in which it was held that, ‘The public must be

afforded reasonable access to the foreshore [i.e. wet-sand area] as well as a

suitable area for recreation on the dry sand’.1210 This opening up of access to

beaches in the US can be seen in juxtaposition with access to beaches in the

UK.1211 Alexander argues that ownership does not just contain rights but human

1204 Michał Kowalewski, Rosa Dome`nech and Jordi Martinell, ‘Local Consequences and Global Implications of Accelerating Loss of Shells to Tourism’ (2014) 9(1) PLOS ONE <http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0083615> accessed 31 December 2017.1205 Daniel Jean Stanley and Andrew G Warne, ‘Nile Delta: Recent Geological Evolution and Human Impact’ (1993) 260 (5108) Science 628.1206 Ministry of Housing, Communities and Local Government, Government announces new housing measures <www.gov.uk/government/news/government-announces-new-housing-measures> accessed 1 October 2019.1207 Alexander (n454) 801.1208 ibid 802.1209 471 A2d 355 (NJ 1984).1210 ibid; Alexander (n454) 802-03.1211 R (on the application of Newhaven Port and Properties Limited) (Appellant) v East Sussex County Council and another (Respondents) [2015] UKSC 7. See also Donald McGillivray and Jane Holder, ‘Locality, Environment and the Law: The case of town and village greens’ (2007) 3(1) Intl J of L in Context 17.

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flourishing obligations;1212 public access to beaches provides a vital form of

recreation, necessary for ancillary health,1213 social and community benefits;1214 the

anthropocentric approach. In Britain the issue of public trust was raised in the

context of town and village greens in R (on the application of Newhaven Port and

Properties Limited) v East Sussex County Council,1215 concerning the public’s right

to access to Newport’s West Beach, ‘a place of public resort’.1216 In this case Lord

Carnwath took the opportunity to consider the potential role of the doctrine of public

trust in the US,1217 concluding that the law in New Jersey provided an, ‘illustration of

how the law in this country might have developed (and might yet develop)’1218

leaving the door firmly open.

However, one way forward could balance environmental needs with human access

through restrictions in sensitive areas at appropriate times.1219

4.7 ‘Shows promise, but must try harder’1220

Humanity’s demand on the planet’s living resources, its ecological footprint,

exceeded the earth’s ecological limits by the 1980s and has continued to

rise such that now its ecological footprint exceeds the planet’s regenerative

capacity by about 30 per cent.1221

This is a grave situation; steps are needed to implement genuine, meaningful

change and this section will explore what action, if any, has been taken to-date.

This research will argue that whilst there are significant advantages in using

legislation, it is less likely to lead to short-term success. Prior to the passing of the

1212 Gregory S Alexander, ‘Ownership and Obligations: The Human Flourishing Theory ofProperty’ (2013) Cornell Law School Research Paper No 13-93, 11 <http://ssrn.com/abstract=2348202> accessed 31 December 2017.1213 ibid 8-9.1214 ibid 8-9.1215 [2015] UKSC 7.1216 ibid [114].1217 ibid [122]-[129].1218 ibid [130].1219 See Hannah Ellis-Petersen, ‘Thailand bay made famous by The Beach closed indefinitely’ The Guardian (Bangkok, 3 October 2018) <www.theguardian.com/world/2018/oct/03/thailand-bay-made-famous-by-the-beach-closed-indefinitely?CMP=share_btn_link> accessed 25 February 2019. 1220 Ross, Sustainable Development Law (n70) taken from a CDC report 2004 and used by Ross for Chapter 11.1221 Ross, from a CDC report 2004 and used by Ross for ch 11.4) 35.

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Well-being Act 2015, concerns were raised as to how sustainable development

could be more successfully implemented given the prior approach of a soft law or

non-binding basis.1222 It is important to note that the Well-being Act 2015 places the

burden of satisfying the 7 well-being goals on public bodies only; there is no

corresponding obligation on corporate entities, private companies or individuals.

Ross and Dernbach argue that legislation is the most effective way forward

because it, ‘can compel adherence to best practices and promote long-term

consistency’ using the stick approach.1223 However, this is qualified by Dernbach

who comments that more attention is needed as to the issue of an appropriate

legal foundation for sustainable development at the national level.1224 Ross similarly

argues that the UK has the architecture to deliver sustainable development but that

its underlying framework lacks legislative foundation. To address this, she

suggests three areas to take forward: improving understanding; providing a

comprehensive framework to integrate potentially conflicting priorities; and

providing an operational toolkit.1225 In addition, it is argued (at 6.2.1- 6.2.2) that UK

legislation often does not work in tandem potentially exacerbating issues of

implementation. The lack of effective sustainability indicators (discussed at 5.3) is

problematic in that we lack the ability to measure effectively whether sustainability

is being achieved or not. Over the last few decades the indicators used have

changed; for example, GDP was used as a measure1226 but now DEFRA produce

much broader indicators.1227 Furthermore, there are different levels of government

in play in Britain; for example, we have national government (UK Parliament and

the Welsh Assembly), the EU, regional government and the Local Authorities (343

Councils in England and 22 Unitary Authorities in Wales) so whilst it is clear that

1222 Andrea Ross, ‘Nationality and Sustainability in Scotland and Wales’ (SLS Conference, Nottingham September 2014) on the grounds that it has had little impact; Andrew T Guzman and Timothy L Meyer, ‘International Soft Law’, The Journal of Legal Analysis (2011) 2 No 1, UC Berkeley Public Law Research Paper No 1353444 at 172 ‘Thus, soft law is most commonly defined to include hortatory, rather than legally binding, obligations. The focus of this definition is usually on whether or not something that looks like a legal obligation in some ways (e.g. it is a written exchange of promises between states) nevertheless falls short of what is required to formally bind states.’ This definition, then, is a doctrinal one—things that fall short of international law are called soft law.1223 Dernbach and Ross (n171) 32; Ross, 'It's Time to Get Serious' (n55), 1103.1224 John Dernbach, ‘Navigating the Transition to Sustainability: Matching National Governance Challenges with Appropriate legal tools’ Tulsa L Rev (2008) 44, 93.1225 Ross, 'It's Time to Get Serious' (n55).1226 See 4.5.1227 DEFRA, Sustainable Development Indicators (July 2013) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/223992/0_SDIs_final__2_.pdf> accessed on 29 November 2019.

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action should be coordinated, until these bodies are more aligned change will be

impeded. Even the way the government is structured at Whitehall further

exacerbates the effective implemention of legislation. The responsibility for

activities with environmental implications is fragmented between numerous

departments,1228 and whilst a significant portion of environmental control falls within

DEFRA1229 arguably the department that should be forceably driving environmental

matters is perceived as being comparatively weak.1230

Clearly, there is potential merit in legislative reform but the issues arising render it

incredibly difficult to implement, exacerbated by the inability to achieve consensus

on what sustainability and sustainable development actually mean (discussed at

4.3). Bosselmann suggests that there is an increased gap between hard and soft

law1231 but whilst a legal system alone cannot initiate and monitor social change, it

can formulate parameters around the direction and possible extent of social

change.1232 This could be one way forward.

Most government policy, and national and business strategies in the UK today

have been formed from a weak sustainability interpretation;1233 although a limited

number of business strategies do not assume that manufactured capital can

replace natural capital but look to compensate the environment by taking action in

specific areas such as deforestation, climate change and sanitation.1234 This

section will explore why this has happened. Even though political parties over the

last seventy years have secured office for a meaningful number of consecutive

terms, for example the Conservatives in 1951-64 and 1979-97, and Labour

between 1997-2010 (albeit with different leaders and evolving policy objectives),

any government will be focused continually on its desire for re-election. On this

basis, it is unlikely that any newly elected government would be willing to try and

translate sustainability into legislation as it would most likely be perceived as too

radical and/or too onerous in terms of restrictions on constituents. Governments

1228 Bell, McGillivray and Pedersen (n920) 111.1229 ibid 114.1230 ibid 115.1231 Bosselmann, ‘From Reductionist Environmental Law’ (n142) 208.1232 Bosselmann, The Principle of Sustainability (n145) 43; Ross, ‘Modern Interpretations of Sustainable Development’ (n80) 38.1233 Bosselmann, ‘From Reductionist Environmental Law’ (n142) 208; Ross, ‘Modern Interpretations of Sustainable Development’ (n80) 34.1234 Unilever plc <www.unilever.co.uk/sustainable-living/> accessed on 28 February 2016; Tesco plc </www.tescoplc.com/index.asp?pageid=630> accessed 8 March 2016 who look to reduce their impact.

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will always find competing issues to tackle with more short-term implications on

political votes such as a need to react to a crisis (such as the financial crisis in

2008) and/or pressure from corporates to pursue growth as a priority.1235 President

Trump’s vociferous strategy of promising to reinvigorate the coal industry

successfully won him 8 of the 10 major coal states in the 2016 election1236 (but

whether he will be able to deliver remains to be seen1237) and he has followed up

with the US’s controversial withdrawal from COP 21.1238 As Jackson points out,

COP 21 was the culmination of 25 years of negotiations but is rather thin in terms

of actual commitment,1239 the current aim only being to make it operational by

2020.1240 Part of the reason for the degree of apathy is that sustainability is still

largely perceived as something that humanity has to do rather than something it

actually wants to do on a widespread basis, and the lack of effective indicators1241

combined with the fragmentation of government departments,1242 together with the

significant up-front costs for little short-term benefit makes it all too easy to focus

on other issues. The time when tough decisions will need to be made is closing in

and it is now clear that a weak sustainability approach will not deliver the

necessary cultural change.1243

There are three alternatives to enacting legislation that should be considered. The

first is soft law, representing a consensus and considered legally relevant but

(critically) not binding.1244 However it is difficult to see how this would really work

without some form of national (if not international) consensus combined with a

sufficient enforcement mechanism, as evidenced by COP21. An alternative would

1235 Ross, 'It's Time to Get Serious' (n55) 1107 references Ed Miliband’s 2008 legally binding pledge to cut Britain’s greenhouse gas emissions by 80% by 2050 in the same fortnight as the government backed plans to increase Stanstead Airport. See also Bosselmann, ‘From Reductionist Environmental Law’ (n142).1236 Wyoming, Kentucky, Pennsylvania, Montana, Texas, Indiana, North Dakota while Clinton won Illinois and Colorado.1237 Darryl Fears, ‘Donald Trump promises to bring back coal jobs but experts disagree’ The Independent (29 March 2017) <www.independent.co.uk/news/world/americas/donald-trump-coal-mining-jobs-promise-experts-disagree-executive-order-a7656486.html> accessed 19 July 2017.1238 Effective from 2020.1239 Jackson, Prosperity without Growth (n32) 19. 1240 The 24th Conference of the Parties to the United Nations Framework Convention on Climate Change, Katowice.1241 See 5.3.1242 Julia Black, ‘Critical Reflections on Regulation’ (2002) CARR Discussion Papers, DP 4. Centre for Analysis of Risk and Regulation, LSE 9 <www.lse.ac.uk/CARR> accessed 1 May 2018.1243 Ross, 'It's Time to Get Serious' (n55) 1119.1244 Bosselmann, ‘From Reductionist Environmental Law’ (n142) 208.

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be to apply an environmental principle across law and policy.1245 It is argued that

the issues with the use of a sustainability principle make it lacking in sufficient force

therefore less viable as a mechanism, compounded with the evidence that to-date

this has not proved successful given that to accommodate the diverse perspectives

within sustainability, a sustainable principle would need to be sufficiently flexible

which ultimately renders the principle difficult to quantify and implement. Further,

as Bell, McGillivray and Pedersen point out principles are, ‘guides to action, rather

than detailed rules’1246 with the result that the disparity between the definitions of

sustainability and sustainable development evident in policy, legislation and

scholarship are translated into policy and legislation,1247 leading to a lack of

cohesion and clarity. There can also be a lack of mutual support between

sustainability and the other environmental principles leading to friction around how

to achieve the best outcome.1248 However, as discussed at 4.7, the realities of

implementing sustainability in legislation or as a principle to achieve or contribute

to sustainable development are at best problematic.1249

The final option to consider is regulation, and it is argued that because this sits

predominantly within a legislative structure, the same issues discussed above

remain relevant. Black references three definitions of regulation:1250 first, the

promulgation of rules by government together with monitoring and enforcement;

second, any form of direct state intervention in the economy; and third, all

mechanisms of social control or influence affecting all aspects of behaviour from

whatever source, whether they are intentional or not.1251 The incentives proposed in

this research could certainly be implemented through regulation – for example

building regulations set out in the Building Act 1984 – but the government passing

such legislation would be subject to the issues regarding implementation of an

Enabling Act (Black’s first two categories). Black’s third category indicates a break

from government1252 and as the premise of this research is change from within a

familiar paradigm (to reflect humanity’s resistance to change1253) this is

consequently of less relevance. Sound arguments have been made by Baldwin 1245 Bell, McGillivray and Pedersen (n920) 57.1246 ibid 571247 See 6.2.1.1248 Bell, McGillivray and Pedersen (n920) 57; John and Sharon McEldowney, Environmental Law (Pearson, 2010) 11.1249 ibid 60.1250 Black (n1221) 12.1251 ibid.1252 ibid.1253 See 4.5.

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and Black and Godt that regulatory property rights could be more responsive1254

however, with application to this research, Godt’s argument is less appealing as it

takes a commodification-based approach;1255 and Black and Baldwin do not offer a

way to address the issues with the enabling legislation.1256

Following referendums in Scotland and Wales, the UK Parliament passed three

devolution Acts in 1998 establishing three devolved legislatures: the Scotland Act;

the Northern Ireland Act; and the Government of Wales Act.1257 Looking at

specifically at Wales (Ireland and Scotland have not been included in this

research), the UK parliament retains sovereignty with the ability to legislate on any

matter not devolved. The Welsh Assembly has similar ability to legislate on matters

such as agriculture, fisheries, forestry and rural development1258 (discussed further

at 6.3). Devolution has changed the way that legislation could be implemented

throughout the UK and Ross suggests it might actually hinder effective

implementation of sustainability legislation; she offers a joint policy initiative as an

alternative way forward.1259 This is a realistic concern and increasing devolved

powers, as with the Wales Act 2017, could deepen a division in approach between

England, Wales and Scotland. There can be little doubt that legislation (in whatever

format) could be a potentially effective and pro-active means to bring sustainable

development into everyday life, however this is a cyclical debate as it is unlikely

that governments will legislate significantly to incorporate sustainability (or

sustainable development) into society as an obligation. The Well-being Act 2015

will in time offer scope for analysis but it is too early at this stage to gauge its

effectiveness and (as will be discussed in Chapter 6) there are many issues arising

from the various indices used to measure sustainable development, so the

relevance of such measures needs to be brought into question.

4.8 Conclusions

1254 Christine Godt, ‘Regulatory Property Rights - A Challenge to Theory’ in Christine Godt (ed), Regulatory Property Rights: The Transforming Notion of Property in Transnational Business Regulation (Brill Nijhoff 2016) 1, 42.1255 ibid 40-43.1256 Robert Baldwin and Julia Black, ‘Really Responsive Regulation’ (2007) LSE Law, Society and Economy Working Papers <www.lse.ac.uk/collections/law/wps/wps.htm> accessed 1 May 2018.1257 Superseded by the Government of Wales Act 2006; Wales Act 2017.1258 The Government of Wales Act 2006, sch 7; Wales Act 2017.1259 Ross, 'It's Time to Get Serious' (n55) 1111-12.

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This chapter has answered the sub-research question: what is the connection between sustainability and the theories property in land through the analysis of

sustainability and sustainable development, addressing why the definitions used in

this research have been selected and, in so doing, set out a distinction between

the concept of sustainability and being sustainable. Sustainability theory was used

in support of the selection of a strong sustainability approach – distinguished from

ecocentricism and anthropocentricism more traditionally used in environmental and

property theory – taken in this research and to illustrate the link between the two

theoretical elements of this thesis: property in land and sustainability. Ethics and

psychology were explored in support of the connection to Leopold’s Land Ethic,

connecting back to Sustainability and Stewardship. Environmental Psychology was

also touched on, to consider the demographics indicating which groups in society

are more likely to connect with the environment and who may be more inclined to

pro-actively or reactively response proposed in this research to implement the new

Sustainability Restriction. Legislaiton was outlined as the preferred mode of

implementing the change to the new Land Model following the implementation of

the new Sustainability Restriction. The significant lack of substance in sustainability

literature, legislation and policy afforded to the notion of future generations has

been outlined and the US doctrine of Public Trust was proposed as a suitable

mechanism, connecting directly to the main research question which is seeking the

most effective model for the future. Legislation was proposed as a possible means

for implementation of the new Land Model below (in Chapter 6) through the

inclusion of the Sustainability Restriction (formulated in the next chapter) prompted

by a restriction placed on the title of the land at HM Land Registry or through the

Local Authority (at 6.3), which will ultimately lead to a change in the property

paradigm.1260 This was followed by a critical evaluation as to why sustainability has

not yet fully and successfully evolved from policy to legislation to add further weight

in support of a velvet property revolution; to affect change slowly from the bottom

up.

1260 See Table 4.1.

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Chapter 5 The New Sustainability Restriction

5.1 Introduction

Chapter 4 developed sustainability theory to support the use of strong sustainability

as the approach to connect this research with Leopold’s Land Ethic. The

fundamental purpose of Chapter 5 is the creation of the new Sustainability

Restriction, the central feature of this research and the key point at which

sustainability and property theory become synthesised. The sub-research question

is in two-parts and asks: Is there a viable measure of Sustainability1261 and, if so, how can it be used to develop a Sustainability Restriction? To answer this

question, it will be argued that reductionism (being the primary method used in this

chapter) is the best method to support the analysis. Sustainability Indicators

(‘SIs’)1262 will then be explored – what they are and what they are seeking to

measure – and the problems with their use in general terms (in particular the

hidden subjectivity) will demonstrate the distinction between the framework and the

actual indices (which sit within the framework). It will be argued that there is not yet

a fully satisfactory SI in response to the first part of the sub-research question and,

to answer the second part, it is proposed that whilst SIs have proved largely

unsatisfactory to-date they could be more successfully used in a different way.

Accordingly, this research proposes the formulation of a new framework (here

called the Sustainability Framework) shown at Table 5.5 to be used in this research

not to measure sustainability, but to create the new Sustainability Restriction. The

following section will explore the use of the Bellagio Principles and Bellagio STAMP

as guidelines, in turn supporting the creation of the Sustainability Framework. The

next section will argue in support of the use of the Environmental Performance

Index (‘EPI’) and the Planetary Boundaries concept, whose frameworks will be

utilised to create the new Sustainability Framework and then ‘reduced’ to focus on

the land to form the Sustainability Restriction used in the property analysis and

comparison. Chapter 5 will then lead into Chapter 6 (the culmination of this

research) which will show that Honoré’s Incidents of Ownership, together with the

Sustainability Restriction, can be used to facilitate a comparison of the three

theories of property outlined in Chapter 3 by taking the land element of the

Sustainability Framework to form the restriction element of the test1263 (the

1261 See 4.3.1262 ‘SDI’s’ (Sustainable Development Indicators) are used as alternatives to SI’s.1263 See 5.3.

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Sustainability Restriction placing an additional burden on the landowner); the

results of which will be analysed in Chapter 6. This, in turn, addresses part of the

main research question – what is the most effective theory/model of property to protect land, as part of the environment, for the future – as it forms the

sustainability element of the assessment criteria to establish which theory is the

most effective to protect land.

5.2 Reductionism

This research proposes that a methodological reductionist approach focusing on

the land, as part of the environment, is appropriate to this chapter where the results

will be meaningful when supported by clearly defined methods and stated

objectives. Reductionism is used in a variety of disciplines1264 and has been

selected for the reasons set out at 1.2.11, and its widespread use in Sustainability

scholarship. Despite the criticism, it is argued that reductionism is credible as it

offers a way to deal with a potentially vast sea of information by looking at

manageable bites and will conclude that the merits of its use outweigh the flaws.

This chapter employs a reductionist approach in the creation of a new

Sustainability Framework used to form the new Sustainability Restriction to be

used in the subsequent chapter. Reductionism enables the focus of analysis to be

placed on one feature within a broader concept, effectively to remove the subject of

analysis from its context – here the land.

Arguments against the use of reductionism will be challenged on the grounds that,

if used well, the ability to see the big picture is not inhibited. Criticism has come

from the Papal Encyclical which points out that the global problems we face are

interconnected and that we cannot tackle just one in isolation;1265 Bosselmann

argues that environmental law has been ‘hampered’ by compartmentalising and

fragmenting issues;1266 and Bell and Morse similarly criticise reductionism on the

basis that it is virtually impossible to separate one system from those it interacts

with to allow detailed analysis.1267 This is essentially the same point and is a

reasonable one however reductionism can justifiably be used as long as the results

of the analysis are valid, relevant and can be re-inserted back into the context out

of which they were previously taken. Here, the Sustainability Restriction will focus 1264 Bell and Morse (n148) sustainability and biology.1265 Encyclical letter Laudato Si’ (n1096).1266 Bosselmann, 'Losing the Forest for the Trees’ (1084) 2425.1267 Bell and Morse (n148) 64.

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on those elements that relate to the land but it will be shown (as part of the new

Sustainability Framework below at Table 5.5) that the land element sits comfortably

‘within’ the environment and is open to further research.

Bell and Morse (despite their criticism mentioned above) suggest that, as an

approach, reductionism is responsible for amazing and revolutionary advances:1268

‘The world is a complex place … The obvious approach is to deal with the world in

manageable bites’.1269 The justification for using reductionism has been addressed

above (at 1.2.11) in the way UK legislation ‘reduces’ elements of the environment

and in the way sustainability, as a concept, is reduced into component parts. This

addresses the criticism that reducing concepts can lead to a degree of

simplification, rendering the results invalid or irrelevant. Bell and Morse suggest

that, as a paradigm, reductionism can be very limiting and inhibit an encompassing

view1270 because the process of dividing up the world to identify small parts is

questionable, in that it can only lead to partial analysis and the development of

answers to problems which themselves cause still greater problems.1271 In reducing

a concept, it is being abstracted from its context.1272 Reductionism is certainly not a

new idea within sustainability, evidenced by its application to sustainable

development in the Brundtland Report,1273 breaking the concept into three areas

(pictorially using 3 ellipses) – environment, social and economic – and this thesis

effectively ‘reduces’ the environmental aspect of sustainability by creating a sub-

category of the land, being part of the environment, thereby enabling greater depth

of analysis.

Creating a new sustainability framework focusing on the environment which can

then be ‘reduced’ to relate specifically to the land, for use in property theory,

requires the application of a reductionist approach to break it down into segments

to make it digestible and understandable.1274 This is supported by Bell, ‘A

reductionist approach rejects ideas about the reality and importance of unscientific

aspects of life … The universe is seen through empiricism as fixed, knowable,

measurable’.1275 Despite some of the shortcomings, the results below are

particularly relevant when supported by clearly defined methods and stated 1268 ibid 41.1269 Ibid 64.1270 ibid 107-08.1271 ibid 108.1272 Underkuffler (n160) 11.1273 Brundtland Report (n100).1274 Bell and Morse (n148) 107-08.

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objectives.1276 Just as the 3 ellipses are interconnected so too is the land. The

different elements of the environment are reflected through the component parts of

the new Sustainability Framework (presented at Table 5.5) created from a merger

of the environmental elements of the EPI and the Planetary Boundaries concept.

This will then be ‘reduced’ to take the element directly affecting the land to create

the new Sustainability Restriction. It is argued that having applied a reductionist

approach, the land elements can be re-inserted to the environmental element and

is then available for use in further research or discourse.

5.3 Measuring Sustainability

This section will explore the frameworks and indicators in general terms against the

background that they are intended to be the principle mechanism to measure

sustainability, and will address the criticism of them arguing that there is merit in

the creation of a new framework for a distinct purpose in this research. The

concept of measuring economic growth is not new1277 with GDP having been used

as the primary measure since the late 1930s. In the 1970s, Ehrlich and Holdren

developed the I=PAT Formula1278 which is significant here because, unlike GDP, it

considers more than just goods produced and services consumed, looking also at

the impact man has on the planet. The idea of measuring sustainability derives

from UNCED,1279 which agreed a set of action points for sustainable development

(referred to as Agenda 21) that called for results to be transformed into clear

indicators in order to inform consumers and decision makers.1280 In this chapter, the

definitions and distinction between sustainability and sustainable development

(detailed at 4.3.1 and 4.3.2 respectively) will be used.

1275 Simon Bell, Learning with Information Systems: Learning Cycles in Information Systems Development (Routledge 1996) 63; ibid 130.1276 See 1.2.8-1.2.12.1277 Peter Hardi and Terrence Zdan, 'Assessing Sustainable Development Principles in Practice' (The International Institute for Sustainable Development 1997) 7; Ross, Sustainable Development Law (n70) 212.1278 Created by Paul Ehrlich and John Holdren in a series of papers written between 1970-1974 (I is Environmental Impact = P is Population, A is Affluence and T is Technology). There were questions raised whether some aspects of affluence and technology can decrease impact and whether there are other factors which should be accounted for such as behaviour and the model was developed to STIRPAT (Stochastic estimation of Impacts by Regression on Population Affluence and Technology).1279 UNCED (n144) Vol I.1280 ibid Agenda 21, paras (4.20); (40.4).

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The acronym ‘SI’ is often used generically to describe both the framework and the

indicator whereas they are technically distinct elements. Initially here, both will be

outlined before the component parts are separated in the next section. SIs are

used for a variety of purposes including (but not limited to) monitoring regional or

national trends, assisting in strategic planning and forming policy1281, as a means

for holding responsible authorities accountable, to reflect individual choice to act or

not, and to provide insights into the way we live.1282 In recent years, there has been

significant interest in developing SIs and Hezri suggests that to a certain extent it

has become an industry in its own right.1283 This is supported by the extensive use

of SIs that have been developed by a range of organisations from the United

Nations Commission for Sustainable Development (‘CSD’)1284 governments,1285

NGOs,1286 corporate entities, and various research groups such as the Stockholm

Resilience Centre,1287 the Yale Center for Environmental Law and Policy1288 and the

Center for International Earth Science Information Network.

The starting point for the development of the new Sustainability Restriction is to

distinguish between the component parts of the SIs. The conceptual framework

covers the overarching focus and is used to clarify what to measure, what can be

expected from the measurement and which indicators should be used.1289 The

Environmental Performance Index (‘EPI’) used (at Table 5.2) contains two

overarching objectives – Ecosystem Vitality and Environmental Health – broken

down into 10 categories and 24 indicators.1290 The focus of this research is land

1281 Louis F Cassar, Elizabeth Conrad, Simon Bell and Stephen Morse, 'Assessing the use and influence of sustainability indicators at the European periphery' (2013) 35 Ecological Indicators 52, 52.1282 Ross, Sustainable Development Law (n70) 214.1283 A A Hezri, 'Sustainability indicator system and policy processes in Malaysia: a framework for utilisation and learning’ (2004) 73 J of Environmental Management 357, 357; Reed, Fraser and Dougill (n199) 406.1284 CSD produced sets in 1996 www.un.org/esa/sustdev/csd/csd9_indi_bp3.pdf; 2001 <www.un.org/esa/sustdev/csd/csd9_indi_bp3.pdf>; 2006 <www.un.org/esa/sustdev/natlinfo/indicators/guidelines.pdf: acessed16 October 2016. See also Ross, Sustainable Development Law (n70) 212.1285 Well-being Act (n990).1286 Global Footprint Network <www.footprintnetwork.org/en/index.php/GFN/> accessed 20 November 2016.1287 Stockholm Resilience Centre <www.stockholmresilience.org/> accessed 15 October 2016.1288 See 5.5.1; The Yale Centre for Environmental Law and Policy <http://epi.yale.edu/> accessed 15 October 2016.1289 Ross, Sustainable Development Law (n70) 215.1290 See Table 5.2.

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held as private property1291 and this is reflected in the selection of the EPI and the

Planetary Boundaries Concept to form the Sustainability Framework (discussed at

5.5). The indicators are defined by Mayer as, ‘a variable that describes one

characteristic of the state of a system, usually through observed or estimated

data’1292 and within the indicators are the numerical measures that produce the

numerical data. In this context the use of a framework and indicators but not

numerical indices is ideal as this research is not seeking to produce numerical

indices that can be compared annually but to create a new framework – the

Sustainability Framework – to create in turn the new Sustainability Restriction to be

included in the property theory test criteria in Chapter 6. This is in part supported

by Mayer’s observation that the framework should be visible and not hidden behind

an aggregated index as some indices can be.1293 Here, the framework will shape

and direct the enquiry yet in itself will not produce data thereby making it

transparent, as is the EPI, which is vital from a methodological perspective in that

any results must be achieved though clear and replicable methods;1294 any SI must

clearly state what is being measured and how.

There are multiple criticisms of SIs, not specifically in the concept of measuring

sustainability but, more broadly, of generating specific indicator sets or

frameworks. Blewitt1295 and Ross concur, ‘all the indicator sets have received

criticism over the years’.1296 Effectively, the most pertinent criticisms centre around

what is included (and consequently what is excluded) thereby reflecting the

subjectivity of SIs; whilst many have an objective feel, there is much hidden

subjectivity in the decisions made over what indicators to use, how to measure

them and how the results are used.

SIs come in a variety of shapes and sizes and are not multi-purpose but should be

tailored to what is being measured and it is this which perhaps leads to the most

damning of critiques. However, as with any data gathering process, the validity is

dependent upon transparency around the questions asked to obtain the data, any

political or social bias and hidden agendas. 1297 This is further supported by Bell and

1291 See 1.1-1.2.1292 Audrey L Mayer, 'Strengths and weaknesses of common sustainability indices for multidimensional systems' (2008) 34 Environment Intl 277, 279.1293 ibid 280.1294 Yin (n111) 44.1295 Blewitt (n980) 189.1296 Ross, Sustainable Development Law (n70) 223.1297 Bell and Morse (n148) 41.

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Morse: ‘Although sustainability may have much in common with truth and justice –

what it comprises is heavily influenced by value judgments and ethics – like these

two, it has to be put into practice by imperfect human beings’.1298 Much of the

criticism of SIs is levelled at the indicators used rather than the framework itself yet

there is no real counter to the allegation of subjectivity because, as Mayer points

out, most SIs are created and championed by their own creators with few

independent opinions.1299 In response to similar potential criticism of bias, this

research is not a government based research project and whilst there is an

element of subjectivity in taking a strong sustainability approach, any perceived

subjectivity is diminished by transparency in method and a stated motive to protect

land, as part of the environment for the future which challenges Ross’s criticism of

SIs as not representing what they are supposed to represent or say they do,1300 or

that vital information is often missing either because of the absence of a specific

indicator or because of the way a particular indicator is calculated.1301

The lack of community involvement has also been raised as a criticism, that in

failing to connect to local knowledge many vital issues could be missed such as

seasonal anomalies. SIs tend to be created by outsiders1302 so, arguably, this is just

the same criticism as above; many existing indicators are top-down national SIs so

do miss issues at a local level1303 and, similarly, reflect an aspect of the subjective

nature of SIs. Reed et al suggest that there are advantages of participation at a

local community level in all stages from project planning to implementation1304

which may well be the case for community based SIs. However, this is a criticism

that cannot viably be levied here as this research is looking at Britain as a whole

rather than on a community based approach and it is not seeking numerical data

as its result.

There is clearly awareness within Sustainability scholarship of the need for change;

that nothing will happen until humanity is ready and willing to accept change.

Evidence of the failure to translate the results of SIs into policy is considerably

harder to substantiate, as policy comes not only from government but also NGOs,

1298 ibid 20-21.1299 Mayer (n1292) 288.1300 Ross, Sustainable Development Law (n70) 223.1301 ibid 223 the SDC report noted air travel growth threatens to negate gains made on the ground but aircraft emissions were excluded from the indicators.1302 Bell and Morse (n148) 38; Ross, Sustainable Development Law (n70) 226.1303 Reed, Fraser and Dougill (n199) 406-07.1304 ibid 407.

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pressure groups, lobbyists, common law, from people and through the democratic

process.1305 Ross suggests that part of the issue is that the use of SIs is simply not

leading to any improvement, that negative trends reported by the SIs are not

impacting government behaviour and critically do not appear to have influenced

improved performance.1306 This is reflected by the absence of radical changes in

the output of the SIs1307 despite five significant metamorphoses in the last four

governments.1308 As long ago as 2001, Bell and Morse questioned the extent to

which SIs have actually been integrated into policy.1309 However, this research is

proffering a solution (albeit on a small scale) because unless and until humanity is

ready to accept and embrace change (again, expressed here as acknowledgment

and action) there will only be small pockets within certain groups in certain parts of

the world that are ready to modify their way of life.1310

The most fundamental criticism of SIs – their subjectivity – can be addressed to

some extent through methods and motivation. Indicators should be clear,

understandable and relevant to users, use comprehensive and credible data in a

transparent manner. It is clearly desirable for SIs to prompt change but a SI cannot

be viewed as a failure if it produces a reaction only on a small scale. It is arguable

that the prohibitions to regional and/or local stakeholder participation are based on

logistics, time and money but this does not mean it is less desirable. Ross

suggests, ‘the usefulness of the indicators is dependent on their legitimacy and this

is often affected by issues of procedural fairness;’1311 they should also be

motivational and capable of provoking and inspiring change;1312 and a selection

process that makes sense to the public and stakeholders will be more widely

accepted and legitimate, improving policy relevance and usability.1313 Ross’s points

are all valid but this research is arguing that steady change through evolution of the

1305 This research is using qualitative methods and this analysis would require quantitative research methods.1306 Hezri (n1283) 358; Ross, Sustainable Development Law (n70) 223.1307 Ross, Sustainable Development Law (n70) 224.1308 Labour, to a Coalition to Conservative government in 15 years but subsequently there was a Conservative government, now another Coalition and a general election in December 2019. 1309 Bell and Morse, 'Breaking through the Glass ceiling’ (n199) 293.1310 See 4.4; 4.5. See also Rosalind Malcolm, 'Ecodesign Laws and the Environmental Impact of our Consumption of products' (2011) 23(3) J of Environmental L 487.1311 Ross, Sustainable Development Law (n70) 225.1312 Bell and Morse (n148) 41. See also Ross, Sustainable Development Law (n70) 226; Cassar, Conrad, Bell and Morse (n1281). 1313 Morse (n999) 200-204; Ross, Sustainable Development Law (n70) 269.

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property paradigm could make a significant long-term difference and if the concept

makes sense and is accessible to stakeholders then surely it has a better chance

of successful application. Some action is better than no action.

5.4 The Bellagio Principles

In considering any measure of sustainability, the Bellagio Principles1314 must be

explored as they provide guidelines for the assessment process, and therefore the

choice and design of frameworks and indicators.1315 Developed by the International

Institute for Sustainable Development1316 in 2009 the original Bellagio Principles

were superseded by the more recent Bellagio STAMP.1317 Perhaps surprisingly,

little has been written in terms of a comparison between these two sets of

guidelines1318 and, to address this, Table 5.1 shows Bellagio STAMP (shaded

green) together with the corresponding principle(s) from the Bellagio Principles (in

italics),1319 setting out a synopsis of the two. There are several changes between

the two versions – some more subtle than others – and it is notable that the more

recent version is shorter, having merged a number of the principles. This section

will also illustrate the application of Bellagio STAMP in the creation of the new

Sustainability Framework; effectively this adds to the methodological composition

by providing a valid structure for the creation of the new Sustainability Framework

in this research.

Looking at Bellagio STAMP, Principle 1 places more emphasis on the capacity of

the planet and uses the phrase ‘future generations’,1320 a recurring theme within

sustainability and one addressed in this research.1321 Originating within the

Brundtland Report,1322 this is not a new concept and (as has been argued at 4.6) it

is acknowledged to be problematic to measure with no current viable mechanism

to protect the planet for future generations. Despite this, the desire to protect land

1314 Hardi and Zdan (n1277).1315 ibid 1.1316 A Canadian based policy research institute.1317 Bellagio STAMP Sustainability Assessment and Measurement Principles, IISD <www.iisd-org/pdf/2009/brochure_bellagiostamp.pdf> accessed 14 June 2016.1318 László Pintér, Peter Hardi, André Martinuzzi and Jon Hall, ' Bellagio STAMP: Principles for sustainability assessment and measurement’ (2012) 17 Ecology Indicators 20.1319 Bell and Morse (n148) 22.1320 This has been moved from Principle 3.1321 See 4.6.1322 Brundtland Report (n100).

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… for the future (being part of the main research question) is implicitly reflected in

the new Sustainability Framework through the strong sustainability approach that

this research is taking in seeking to ameliorate damage already done to the

environment,1323 thus restoring the planet and placing it in a stronger position. The

use of ‘well-being’ is also problematic – it is difficult to define, virtually impossible to

quantify – and one can hardly imagine what ‘well-being’ is likely to be in the

future.1324 This research draws heavily on ethical foundations as they reflect the

crux argument that small, incremental change will bring about a far more effective

longer-term change in perception and actions. Despite the desirability of long-term

planning, Pintér et al reflect that most indicators only use short-term analysis.1325

These are lofty ideals and reflect the ethics behind the concept of sustainability and

it could be argued that these goals are used in this way more as an aspirational

objective than being realistically attainable.1326

Principle 2 has been interpreted as seeking to give an ‘alert’1327 where there is a

risk of exceeding boundaries and additionally states that the purpose of assessing

sustainability is to aid decision making, arguably the raison d’être of SIs.1328 This

research does not provide quantitative data so this cannot be qualified but will be

visually represented in a similar manner to the Planetary Boundaries concept at

Table 5.5. Here, rings around Britain have been added illustrating the Sustainability

Framework to reflect those in the Planetary Boundaries concept but also to indicate

that the research could be expanded and numerical data could be inserted at some

future date.

Principle 3 addresses the challenging issue of the spatial and temporal scale,1329

another problematic concept to measure and to factor into a framework. This is a

similar point to that made (at 5.3) regarding community involvement but also looks

for clarity and the use of appropriate measures. In this research, this will be

incorporated not through the framework but through the research design, to

address the global issues in relation to the geographical and political boundary of

Britain. The temporal element is similar to principle 1 and will also be incorporated

1323 See 4.4; 5.5.3. 1324 Pintér, Hardi, Martinuzzi and Hall (n1318) 22; Bosselmann, ‘From Reductionist Environmental Law’ (n142) 207.1325 ibid 23.1326 See 4.4.1327 Pintér, Hardi, Martinuzzi and Hall (n1318) 22.1328 Loosely reflects the previous Principles 2 and 3.1329 Similar to Bellagio Principle 4.

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Table 5.1: A Synoptic Comparison of the Bellagio STAMP and the Bellagio Principles1330

1 Sustainable development will be assessed by the goal of delivering well-being within the capacity of the biosphere to sustain it for future generations

1 What is meant by sustainable development should be clearly defined

2 Sustainability should be viewed in a holistic sense, including economic, social and ecological components

2 Sustainability assessments should consider the social, economic and environmental system as a whole and the interactions among its components, the adequacy of governance mechanisms, current trends, risks, uncertainties, and activities that can have an impact across boundaries and decision making implications

3 Notions of equity should be included in any perspective of sustainable development. This includes access to resources as well as human rights and other ‘non-market’ activities that contribute to human and social well-being

3 Assessments should use appropriate temporal and geographical scales to include short and long-term effects of current policy decisions and human activities

4 Time horizon should span ‘both human and ecosystem time scales’, and the spatial scale should include ‘not only local but also long-distance impacts on people and ecosystems’

4 A conceptual framework should identify the variables that core indicators have to cover using the most recent and reliable information, standardised measurement methods, wherever possible, in the interest of comparability and enable comparison

5 Progress towards sustainable development should be based on the measurement of ‘a limited number’ of indicators based on ‘standardised measurement’

5 All the data, indicators and results of the assessment are accessible to the public including choices, assumptions and uncertainties determining the results of the assessment, sources and methods; including all sources of funding and potential conflicts of interest

6 Methods and data employed for assessment of progress should be open and accessible to all

6 Assessments will use clear and plain language, present information objectively and will graphically interpret and tell a story, making data available

7 Progress should be effectively communicated to all

7 Assessments should involve stakeholders and be aware of the needs of users

8 Broad participation is required

8 Assessment should require repeated measurement, be responsiveness to change, have sufficient investment to develop and maintain adequate capacity and be adaptive

9 Allowance should be made for repeated measurement in order to determine trends and to incorporate the results of experience

10 Institutional capacity in order to monitor progress towards sustainable development needs to be assured

Bellagio STAMP (shaded green) together with the corresponding principle(s) from the Bellagio Principles (in italics)

into the new Sustainability Framework through the research design and through

the fundamental goal of this research, to set in motion a long-term process of

change through the land holding paradigm.

1330 Created as a product of this research.

Principle 41331 sets out how the process should be conducted and provides for

standardised measurement to facilitate comparison. Again, this is a vital point but

one not directly applicable to this research, which is not seeking to create any form

of numerical measurement.

Principle 51332 is also broadly similar to its predecessor with an additional call for

openness around funding; this is clearly important in that it will reflect any potential

bias, the hidden subjectivity referred to above. This research contains a degree of

subjectivity given the desire to protect the land, leading to potentially skewed

results. However, in defence, there are no funding issues and this research is

taking a reductionist approach to show how this restriction, in respect of the land,

can then be re-inserted and be applicable to the environment, opening up the

potential for additional research at a later date.

Principle 61333 calls for the active leadership1334 needed to, ‘maintain momentum

and direction’, and the public participation considered vital for increasing the

legitimacy of the results.1335 This is no doubt accurate but less relevant to the new

Sustainability Framework, which aims to bring gradual change through a ground-up

approach, only seeking change in legislation in order to instigate a response

through the land holding paradigm.

The final principle1336 calls for repeated measurement, which is essential to reflect a

positive or negative change. This is not disputed in that (good or bad) data promote

a desire for action; yet this research is pursuing a qualitative approach and is not

seeking to produce data.

Some of the principles are clearly more relevant to the creation of the new

Sustainability Framework than others due to the application in this research, which

is to use the newly formed framework, not as an SI, but in an entirely different way

– to create the new Sustainability Restriction. This section will argue in favour of its

use in this research in general terms and to address the key issue: that the

Bellagio Principles/Bellagio STAMP do not in their entirety support a strong

1331 Similar to the Bellagio Principle 5.1332 This reflects the Bellagio Principle 6.1333 Broadly similar to Bellagio Principle 7.1334 Ross, Sustainable Development Law (n70) 41.1335 Pintér, Hardi, Martinuzzi and Hall (n1293) 23.1336 Effectively merging and streamlining Bellagio Principles 9 and 10.

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sustainability approach as there is no stated duty or obligation to ameliorate

existing damage or measure of natural capital depletion (discussed at 4.4). Further,

it is argued that whilst the Bellagio Principles follow the Brundtland1337 tradition,

based on the comparison, Bellagio STAMP do not genuinely offer new principles or

a noticeably updated, shorter or punchier approach. Ross supports the Bellagio

Principles as they emphasise certain morals, ethics and political norms consistent

with stronger versions of sustainable development. 1338 However, it is argued this is

optimistic as there has been no significant movement towards a strong

sustainability approach in response. Further support for the Bellagio Principles

comes from Hezri, who suggests they provide a more robust instruction as to what

is actually needed to deliver a valid assessment of sustainability;1339 and from

Pintér et al who endorse the promotion and application of the Bellagio STAMP

because it encourages dissemination of sustainability principles, encourages

researchers to be explicit, strengthens interdisciplinary work and shows the

importance of experts and context in research.1340 In general terms, the Bellagio

Principles and Bellagio STAMP are seen as offering guidance on developing SIs

with a common basis,1341 and have been utilised in the creation of the new

Sustainability Framework. Additionally (but beyond the scope of this research),

there is insufficient emphasis on ‘equity’, used in this context to refer to issues such

as equal opportunities, poverty and rights to sanitation.1342

5.5 The New Framework

These sections will explore in more detail the two environmental based SIs – the

EPI and the Planetary Boundaries concept – both of which will be broken down into

their component parts and utilised to formulate the new Sustainability Framework

(at 5.5.3) from which the new Sustainability Restriction will be created (at 5.6). This

will include a synopsis of the frameworks and will argue that whilst there are

respective disadvantages in the use of either of them, this is of less relevance in

their application in this research. Both frameworks have been selected for a 1337 Pintér, Hardi, Martinuzzi and Hall (n1318) 26.1338 Ross, Sustainable Development Law (n70) 40-42 does not address Bellagio STAMP.1339 Hezri (n1283) 365.1340 Pintér, Hardi, Martinuzzi and Hall (n1318) 25. 1341 ibid 21.1342 Rosalind Malcolm, ‘Bum deal: is access to a toilet a human right or a privilege?’ The Guardian (29 January 2016) <www.theguardian.com/global-development/2016/jan/29/bum-deal-sanitation-access-toilet-human-right-privilege> accessed 10 June 2016.

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number of reasons. First, both evidence a clear environmental foundation seeking

to analyse numerous facets of the environment – one of the EPI’s objectives is

ecosystem vitality1343 and Planetary Boundaries looks at environmental

degradation1344 – connecting to the main research aims of seeking the most effective model of property to protect land, as part of the environment (at

1.2.1) through taking a strong sustainability approach (at 4.4.1). Second, there is a

clear evolution of both frameworks and both demonstrate visual accessibility. Third,

both frameworks use methods and data that are fully accessible and

transparent.1345 Fourth, both are produced by respected academic research groups

and are methodologically valid.1346 And finally, the EPI and the Planetary

Boundaries concept can apply to private property, the focus of this research.1347

Effectively, this research is using these two established frameworks with proven

veracity and integrity, reducing them and reimagining a new Sustainability

Framework through a direct comparison seeking to incorporate all the indicators

that contain elements that directly or indirectly affect the land. Here, the new

framework will shape and direct the comparison yet in itself will not produce data.

Both frameworks appear to apply on a macro scale. The EPI analyses the data on

a country-by-country basis and the Planetary Boundaries concept focuses on the

whole planet addressing the issues globally; however both (albeit in particular the

Planetary Boundaries concept) emphasise the importance of change on a local

and regional level which leads to an aggregated impact globally.1348 This research

uses reductionist methods to reduce the elements of these two frameworks for

application in the Sustainability Restriction for use in Britain.

1343 See 5.5.1.1344 See 5.5.2.1345Johan Rockström et al, Supplementary Information <www.stockholmresilience.org/download/18.1fe8f33123572b59ab800016603/1459560383802/planetary-boundaries-supplementary-info-210909.pdf> accessed 31 December 2017; Yale Center for Environmental Law & Policy and Center for International Earth Science Information Network, Methods <http://archive.epi.yale.edu/our-methods> accessed 31 December 2017.1346 The Stockholm Resilience Centre; Yale Center for Environmental Law & Policy and Center for International Earth Science Information Network.1347 See 1.1; 2.2.2. Private property with an emphasis on the major estates at 2.4.1348 Stockholm Resilience Centre, The Nine Planetary Boundaries 16 <www.stockholmresilience.org/research/planetary-boundaries/planetary-boundaries/about-the-research/the-nine-planetary-boundaries.html> accessed 30 December 2017.

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5.5.1 Environmental Performance Index (EPI)1349

The EPI (which replaced the Environmental Sustainability Index ‘ESI’1350) is

produced collaboratively every two years by the Yale Center for Environmental

Law and Policy and the Center for International Earth Science Information

Network. It seeks to rank the performance of countries in environmental issues

using 24 performance indicators across ten issue categories. This section will

argue in broad support of its use as a framework and show that the specific

criticism it attracts is largely not applicable to the context of this research. The

advantages and disadvantages of the use of SIs in general terms has been

discussed above (at 5.3), however a critical point to reiterate is that this research is

using and developing upon the already scrutinised methodological basis of this

framework and extending its application for use in a new property paradigm, the

new Land Model. Helpfully, all of the methods used and data are fully accessible

on-line and the measure is intended to be fully transparent, replicable and offer

comparison between countries on a bi-annual basis.1351 The EPI framework has

significant merit in supporting the creation of a new framework for this research. It

has been refined over a number of years – having adapted to criticism1352 – and

clearly identifies many of the issues that should be measured in an environmental

framework. Represented at Table 5.2 and having been updated to 24 indices (as

opposed to the previous 201353), the 2018 EPI framework comprises two policy

areas: Ecosystem Vitality (showing pressure from industrialisation and

urbanisation) and Environmental Health (increasing with economic growth and

prosperity)1354 with the former being the focus of this research to reflect the

research aim to better protect the land, as part of the environment (shown at Table

5.2 on the left hand section in shades of green). The EPI has an anthropocentric

1349 Yale Center for Environmental Law & Policy and Center for International Earth Science Information Network <https://epi.envirocenter.yale.edu/2018-epi-report/introduction> accessed 4 June 2018.1350 ESI <http://archive.epi.yale.edu/files/2001_esi_report.pdf> accessed 15 October 2016.1351 EPI published in 2006, 2008, 2010, 2012, 2014, 2016 and 2018.1352 Bell and Morse (n148) 35-37; Thomas M Parris and Robert W Kates, 'Characterising and Measuring Sustainable Development' (2003) 28 Annual Rev Environment and Resources 13.1, 13.5.1353 The 2016 EPI Framework includes 9 issues and more than 20 indicators. Access to Electricity is not included in the figure because it is not used to calculate country scores.1354 The EPI, <https://epi.envirocenter.yale.edu/> accessed 13 October 2019.

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feel, yet it is argued that this is countered here by the research aims of seeking a

strong sustainability solution.1355

Table 5.2 The Environmental Performance Index 20181356

(Yale Center for Environmental Law and Policy and the Center for International Earth Science Information Network)

This will be used to form the new Sustainability Framework with seven issue

categories covered (shown green in the middle ring) – Biodiversity and Habitat,

Forests, Fisheries, Climate and Energy, Air Pollution, Water Resources and

Agriculture – through 18 Ecosystem Vitality indicators (shown green in the outer

ring) which will be adapted and utilised to create the new framework (at 5.5.3, and

visually at Table 5.4). The EPI connects to the key themes in the Brundtland

Report – environmental, social and economic – and the key function of the

environment flagged up is the role of eco-systems and habitats balancing the

effects of weather.1357

1355 See 4.4.1356 Yale Center for Environmental Law and Policy and the Center for International Earth Science Information Network.1357 Zachary A Wendling, John W Emerson, Daniel C Esty, Marc A Levy, Alex de Sherbinin et al, 2018 Environmental Performance Index (2018) Yale Center for Environmental Law and Policy, 78.

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Within the EPI biodiversity loss measures terrestrial biome protection (national

weights), terrestrial biome protection (global weights), marine protected area,

species protection index, protected area representativeness index, and species

habitat index in protected areas.1358 From a social perspective, biodiversity’s

contribution is to be seen as meeting humanity’s food, nutrition and health

needs.1359 Biodiversity is seen as integral to many economic activities such as

subsistence and small-scale agriculture and fishing; reducing the cost of financial

damage from weather events such as the loss and deterioration of the Mississippi

Deltaic Plain wetland (which exacerbated Hurricane Katrina’s impact) and offering

coastal communities protection from erosion and storm surge for their

shorelines.1360 Whilst the EPI acknowledges that this will require capital investment,

they suggest that the economic benefits of protection may outweigh those

additional costs.1361

Forest covers one third of the landmass of the planet and the EPI estimate that

approximately 1.6 billion people worldwide are dependent on forest ecosystems as

their source of income.1362 Among the reasons for deforestation are, according to

the EPI, clearing land for agriculture, constructing roads, logging and strip

mining.1363 The themes of social, environmental and economic issues are again

used, echoing the Brundtland Definition but connected to ecosystem services1364

and provide air quality, carbon sequestration (on a global scale), pollination and

protection from natural disasters and soil erosion (on local and regional levels).1365

From a social perspective, emphasis is placed on the benefit that forests provide to

humans including shelter, livelihoods, and food security (an estimated 300 million

people live in forests).1366 Further, the importance of forests as wildlife habitat is

also expressed in economic terms as being, ‘economically important to the local

population’.1367 The EPI highlights that forests do contribute to a country’s economy

and forest biodiversity also delivers multiple services for the global food economy

as well as prescription drugs (given that it is estimated that three-quarters of these 1358 ibid 77.1359 ibid 78.1360 ibid 79.1361 ibid 79.1362 ibid 100.1363 ibid 1001.1364 See 2.2.11365 Wendling et al (n1357) 100.1366 ibid 100.1367 ibid 101.

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contain a component derived from a forest plant extract).1368 The measure for this

aspect of the EPI is measured through two metrics with data submitted by each

country and tree cover loss data taken from satellite imagery.1369

The EPI (unlike the Planetary Boundaries concept) does not have a distinct

category for change in land use – possibly because of the close connection to tree

cover which is a distinct category and perhaps because this is a very

anthropocentric SI – with the focus being more towards what the planet can

provide humanity; hence it looks to measure agriculture for the level of food output

to feed the growing world population.1370

The EPI has been criticised and this will be outlined for completeness but, as this is

based around the numerical data produced, it is not directly applicable here with

the framework being utilised in a contemporary way to create a new Sustainability

Framework. The EPI integrates all of the data, allocating a single value to every

nation state, effectively reducing the measuring of sustainability to a number.1371

Perhaps not surprisingly given the ‘name and shame’1372 feel to the EPI, the index

has been met with significant criticism;1373 the ESI was similarly condemned for

being misleading and for, ‘presenting some of the worst eco-villains as the world’s

good guys’.1374 A re-calculation of the ESI results produced a very different image

of the world; the UK for example was repositioned to 111 rather than number

16.1375 This is supported by Morse and Fraser 1376 whose research indicated a clear

global north-south divide, with no accommodation in the literature supporting the

environmental problems experienced in poorer countries caused by wealthier

nations.1377 Their primary criticism was the subjective nature of the choice and use

of indices1378 (supported by many working on the index1379) which, as mentioned

1368 ibid 101.1369 ibid 104.1370 ibid 175-96.1371 A reference to Douglas Adams, The Hitch Hikers Guide to the Galaxy; Malcolm, 'Ecodesign Laws’ (n1310) 502.1372 Stephen Morse and Evan D G Fraser, 'Making 'dirty' nations look clean? The nation state and the problem of selecting and weighting indices as tools for measuring progress towards sustainability' (2005) 36 Geoforum 625, 626.1373 ibid; Bell and Morse (n148) 60.1374 Anonymous, 'Keeping Score' (2001) 31(3) The Ecologist 44, 44.1375 ibid based on the calculations by the Friends of the Earth and The Ecologist.1376 Morse and Fraser (n1372).1377 ibid 627.1378 ibid 628-29.1379 Bell and Morse (n148) 60.

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above, is a criticism true of any SI. The EPI does clearly reflect an anthropocentric

approach toward sustainability throughout with its strong focus on the economic

benefits the natural world yields humanity; for example, suggesting that preventing

biodiversity loss will benefit the, ‘planet, people, and the economy’.1380 However, as

stated above, this is to a large extent negated in this research given that it is not

using the EPI to provide a numerical measure.

5.5.2 Planetary Boundaries

Rockström et al1381 at the Stockholm Resilience Centre created the Planetary

Boundaries concept to demonstrate that a safe operating level for humanity exists,

but beyond this lies unacceptable environmental degradation and a potential

tipping point in the Earth’s systems because, ‘the Earth’s natural resource base is

not infinite’.1382 The Planetary Boundaries model is presented at Table 5.3 showing

the nine areas being measured: climate change, ocean acidification, stratospheric

ozone depletion, nitrogen and phosphorous cycle, global freshwater use, change in

land use, biodiversity loss, atmospheric aerosol loading and chemical pollution.

The aim is to create a clearly visible image to illustrate the level of risk in each

sector, with two areas yet to be quantified: atmospheric aerosol loading and

chemical pollution. The green section is considered to represent a safe operating

space whilst red indicates that the planet is already considered to be beyond a safe

place. On this, more recent research indicates that the target set by the Paris

Agreement1383 may not be sufficient and that the planet is at risk of moving into

‘Hothouse Earth’ irretrievably.1384 Recent research suggests that it will simply not

be possible to achieve the 17 SDGs1385 by 2050, and that ‘transformational change’

is the way forward.1386

1380 Wendling et al (n1357) 78.1381 Rockström et al, ‘A safe operating space’ (n8).1382 Johan Rockström, Jeffrey D Sachs, Marcu C Öhman and Guido Schmidt-Traub, 'Sustainable Development and Planetary Boundaries' Background Research Paper, 2 <www.post2015hlp.org/wp-content/uploads/2013/06/Rockstroem-Sachs-Oehman-Schmidt-Traub_Sustainable-Development-and-Planetary-Boundaries.pdf> accessed on 23 June 2016.1383 COP21 (n7).1384 Will Steffen, Johan Rockström et al, ‘Trajectories of the Earth System in the Anthropocence’ Proceedings of the National Academy of Sciences of the United States of America (July 2018) <https://doi.org/10.1073/pnas.1810141115> accessed 1 September 2018.1385 17 SDGs (n54).1386 Rockström et al, Transformation is Feasible (n53).

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Table 5.3 Planetary Boundaries1387 The Stockholm Resilience Centre

In contrast to the EPI, the Planetary Boundaries model does not present a

numerical ‘result’ but it is argued that this too has merit as a framework. One of its

fundamental advantages is that it facilitates reductionism by breaking down nine

elements to be measured whilst enabling all the concepts to be considered as a

whole. This is supported by Rockström who suggests that the Planetary

Boundaries concept was designed to consider all the elements together – rather

than solely focus on one element – as there is clear correlation between land use

changes in the Amazon that could affect water resources as far away as Tibet.1388

This has equal application closer to home; climate change will inevitably lead to

higher temperatures in summer bringing increased demand for water for crop

irrigation as well as increased personal consumption.1389 In turn, this will have a

consequential impact on wildlife with some species migrating farther north to

1387 Rockström et al, ‘A safe operating space’ (n8) 474. An updated but broadly similar version is presented in Rockström et al, Transformation is Feasible (n53) 10.1388 ibid 474. 1389 SEPA, The impact of climate change on water scarcity <www.sepa.org.uk/media/159070/climate_change_water_scarcity.pdf> accessed 7 January 2017.

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counter the heat and lack of water1390 and some simply being unable to cope with

the environmental changes.1391 The Planetary Boundaries concept clearly indicates

areas of concern that lends to further reductionist research (as here) and the

greater visual impact is also appealing in that it perhaps offers the best way to

promote change. Another advantage is that it is accessible for further development

such as in this research and the work done by Raworth, an economist who has

added a social foundation consisting of the top eleven social priorities identified by

the world’s governments in the run-up to Rio+20.1392 In response to the doughnut

developed by Raworth and the potential application of other research, the new

Sustainability Framework is represented at Table 5.5 with a similarly empty central

section.

Change in land use is not yet beyond the safe operating space and it has the

potential to have direct application to land in Britain held by any of the major

estates where a shift from a natural landscape such as a wood to agricultural land

will have a significant impact on biodiversity (amongst other issues). Within the

Planetary Boundaries concept, change in land use measures the impact of forests,

grasslands, wetlands and other vegetation being converted to (primarily)

agricultural land, and the resultant reduction in biodiversity, water flows and the

biogeochemical cycling of carbon, nitrogen, phosphorus and other elements.1393

Some of these consequences may be small but others will be much more

significant; for example, the dramatic forest fires in the Amazon in August and

September 2019, which will ultimately (once the forest has been destroyed) enable

the farming of soybeans.1394 The Stockholm Resilience Centre considers that any

impact on a change in land use should be considered in aggregate, as it impacts

the Earth’s system processes as a whole.1395 This is a key point in that, whilst the

Planetary Boundaries concept has a macro planet based approach, it has real

application on a smaller scale as the micro element forms part of the aggregated

whole.

1390 William W L Cheung, Reg Watson and Daniel Pauly, 'Signature of ocean warming in global fisheries catch' (2013) 497 Nature 365, 365.1391 Simon G Potts et al, 'Safeguarding pollinators and their values to human well-being' (2016) 540 Nature 220, 223.1392 Raworth (n51).1393 Stockholm Resilience Centre (n1348).1394 Zoe Sullivan, ‘The Real Reason The Amazon Is On Fire’ Time (26 August 2019) <https://Time.Com/5661162/Why-The-Amazon-Is-On-Fire/> accessed 18 October 2019. 1395 Stockholm Resilience Centre (n1348) 16.

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A boundary for human changes to land systems needs to reflect not just the

quantity of land, but also its function, quality and spatial distribution; forests, for

example, play a particularly important role in controlling the linked dynamics of land

use and climate. An illustration is provided with reference to the Bornean rainforest

where the demand for timber and palm oil has resulted in degraded rainforests and

critically a consequential impact with El Niño shifting from regenerative (triggering

the tress and fauna reproduction) to becoming destructive of the new crops that

are not indigenous, resulting in wildfires, releasing carbon.1396 Whilst the concept

has been illustrated largely through the lens of global deforestation it should be

acknowledged that this would also have application on a smaller scale in Britain

where there are changes of land use from forest or wetland to agricultural land.1397

Deforestation is not a distinct category within the Planetary Boundaries concept but

is considered a key part of the change in land use cycle, providing additional

justification for including a tree cover loss category in the Sustainability Restriction.

However, it is categorised distinctly in the EPI.1398

The final element selected from the Planetary Boundaries concept and used in the

formulation of the Sustainability Restriction is biodiversity loss, one of the nine

planetary boundaries. It is acknowledged that species extinction can occur

naturally without human interaction, but the rate of species extinction has

undeniably increased dramatically as a consequence of human activity.1399 As

mentioned above, change in land use might be the most significant factor in the

rate of biodiversity loss1400 and significant factors towards species extinction are

demand for food, water, and natural resources, changes to which could be slowed

by protecting, ‘the integrity of living systems (the biosphere), enhancing habitat,

and improving connectivity between ecosystems while maintaining the high

agricultural productivity that humanity needs.’1401 The application of the use of

biodiversity loss in the Sustainability Restriction is supported by the Stockholm

Resilience Centre who see biodiversity loss as an issue at a local level and

regional level, much in the same way that change in land use is relevant on any

1396 Johan Rockström et al, ‘Supplementary Information’ <www.stockholmresilience.org/download/18.1fe8f33123572b59ab800016603/planetary-boundaries-supplementary-info-210909.pdf> accessed 1 October 2019.1397 Stockholm Resilience Centre (n1348) 16.1398 See Table 5.2; 5.5.1.1399 Rockström et al, ‘A safe operating space’ (n8) 473-74.1400 ibid 474.1401 Stockholm Resilience Centre (n1348) 16.

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level and can be aggregated to a whole in relation to the planet in its

entirety.1402However, they do concede that there is little yet known about the type

and amount of biodiversity that could be lost before materially impacting the

planetary boundary, so the rate of extinction should be seen as a metric.1403

However, it is argued that measuring the level of biodiversity loss within the

Planetary Boundary concept is different from seeking to restrict the level of

biodiversity loss through the Sustainability Restriction, and it is proposed this could

be addressed on a micro scale through biodiversity offsetting (as discussed at

6.5.4).

However, there are weaknesses in this as a framework. Again, the decision as to

what to include and exclude is subjective and therefore open to criticism. Blewitt

suggests one weakness is that it does not offer a policy solution,1404 a fair comment

unless you consider it to be a sufficient indicator to promote a reaction followed by

change. Rockström et al acknowledge some shortcomings to the original research

and that there are gaps in their knowledge,1405 something clearly apparent in that

two of the zones are yet to be quantified.1406 However, these are of less relevance

to this research creating a framework with the possibility for future indices to be

inserted. The final criticism (another that Rockström et al acknowledge) is that the

original Planetary Boundaries concept takes an approach more aligned to weak

sustainability based on their perception that there is no real desire to see

consumption and growth slow in an effort to help the Earth. But, there is more of an

acceptance that growth can continue albeit only so far;1407 it does not seek to

impede human development but to find a balance between innovation, growth and

development within a ‘safe’ zone.1408 Although the Planetary Boundaries concept

has recently been revisited, it is still aligned to weak sustainability albeit not to such

an extent as the earlier research.1409 In contrast, this research takes a strong

sustainability approach1410 with its obligation to restore and repair existing damage

although it is acknowledged that restricting further damage would provide the

1402 ibid 16. 1403 Rockström et al, ‘A safe operating space’ (n8) 474.1404 Blewitt (n980) 160.1405 Rockström et al, ‘A safe operating space’ (n8) 475.1406 Rockström et al,'Sustainable Development and Planetary Boundaries' (n1340) 28. See also Rockström et al, Transformation is Feasible (n53).1407 Rockström et al, ‘A safe operating space’ (n8) 475.1408 Rockström et al,'Sustainable Development and Planetary Boundaries' (n1340).1409 Rockström et al, Transformation is Feasible (n53).1410 See 4.4.1.

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planet with a period of time to see how it responds, as has been suggested for the

ozone layer.1411

5.5.3 The Sustainability Framework

The research design for this new framework relies on the veracity of the EPI and

Planetary Boundaries. Both have been criticised but it has been argued that each

has merit in terms of application in this research to formulate the new Sustainability

Framework. Reductionism is used as an approach to focus on the land, as part of the environment showing that the land element is capable of being re-inserted

back into the whole; that it can be part of the bigger picture. In reviewing the

component parts of both the EPI and the Planetary Boundaries concept, it is

apparent that both were intended to cover multiple issues, in particular the EPI.

However, a more thorough and comprehensive approach can be created from a

combination of these two frameworks that can, in turn, be used to create a more

all-encompassing environmental Sustainability Restriction.

Table 5.4 evidences the methodological basis of the new Sustainability Framework

by illustrating parallels between the Planetary Boundaries Concept and the EPI,

showing the extent of common ground and breaking down both into 4 elements:

Land, Air, Water and General, the latter added as some aspects (notably chemical

pollution) could easily be incorporated into each of the other three. To clarify, this is

not intended to imply, for example, that climate change will only affect the air (as

clearly it does not), but that concerns from one source (say fish stock) will have an

impact on all aspects of the planet. Rocksröm’s point that deforestation in the

Amazon affects water supply in Tibet is just as applicable as local land use

change; for example, clearing a forest (no matter how small) will, to some degree,

directly impact upon the rate of biodiversity loss, change in land use and tree cover

loss with a consequential impact on many other aspects of this framework, such as

Air Quality and Freshwater Use.1412 It is argued that the use of these three factors –

change in land use, biodiversity loss and tree cover loss – have been

1411 Susan Solomon et al, ‘Emergence of healing in the Antarctic ozone layer’ (2016) 3539(6296) Science 269, 269-74.1412 Karl Mathiesen, 'How and where did UK lose city-sized area of green space in just six years?' The Guardian (2 July 2015) <www.theguardian.com/environment/2015/jul/02/how-where-did-uk-lose-green-space-bigger-than-a-city-six-years> accessed 7 January 2017.

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methodologically established by the EPI and the Stockholm Resilience Centre and

are properly derived from a use of the reductionist method (at 5.2). The EPI

addresses two of these as indicators that should be measured – biodiversity loss

and tree cover loss – and Rockström et al suggest that within the planet there are

alerts on change in land use (including deforestation) and biodiversity loss

Table 5.4 A Comparison of the Framework Components1413

The Planetary Boundaries

EPI 2018 The Sustainability Framework

Atmosphere

Climate change Climate changeStratospheric

ozone depletionStratospheric

ozone depletionAtmospheric

aerosol loadingAtmospheric

aerosol loadingEmissions - CO2,

NOx, SO2, N2O, Methane and Black

Carbon

Emissions - CO2,

NOx, SO2, N2O, Methane and Black

Carbon

Water

Global freshwater use

Global freshwater use

Ocean acidification Ocean acidification

Phosphorus cycle Phosphorus cycle

Water Treatment Water Treatment

Drinking Water Quality and Sanitation

Drinking Water Quality and Sanitation

Water resources Water resources

Fish Stocks Fish Stocks

Regional Marine Trophic

Regional Marine Trophic

Marine Protected Areas

Marine Protected Areas

LandRate of Biodiversity

LossSpecies protection Rate of Biodiversity

LossSpecies habitat

Biome ProtectionNational & Global

Representativeness Index

Change in Land Use

Change in Land Use

Tree Cover Loss Tree Cover Loss

GeneralNitrogen cycle Sustainable Nitrogen

ManagementNitrogen Balance,Use and Efficiency

1413 Created as a product of this research.

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Chemical pollution Chemical pollution

Table 5.5 The New Sustainability Framework1414

The far right column of Table 5.4 sets out the component elements to be contained

in the new Sustainability Framework. Accordingly, the Atmosphere contains climate

change, stratospheric ozone depletion, atmospheric aerosol loading and emissions

in the form of CO2, NOx, SO2, N2O, Methane and Black Carbon. Water contains

global freshwater use, ocean acidification, phosphorus cycle, water treatment,

drinking water quality and sanitation, water resources, fish stocks, regional marine

trophic and marine protected areas. The section labelled General contains nitrogen

balance, use and efficiency, the most pertinent to this research being the Land

which contains rate of biodiversity loss, change in land use and tree cover loss; all

of which are developed further to form the component parts of the new

Sustainability Framework. Set out visually in Table 5.5, this is reminiscent of the

Planetary Boundaries concept in part for ease of understanding but also to

1414 Created as a product of this research.

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acknowledge that there is room for further development; for example data could be

added to reflect when Britain has reached its safe operating space. The distinct

categories are each allocated a colour: the Land green, the Atmosphere turquoise,

the Water blue and ‘General’ purple. As has been previously stated, this has been

designed to be used as a property theory restriction and not to form numerical SI

data (which is beyond the scope of this research).

However, in this context, the Sustainability Framework will be reduced to focus on

the land and forms part of a checklist to be inserted into Honoré’s Incidents of

Ownership by asking: is there any restriction on a change of land use; is there any

restriction on biodiversity loss; and is there any restriction as to tree cover loss? In

the next chapter, the three theories – the Liberal paradigm, Stewardship and

Progressive Property – will be compared using this new Sustainability Restriction to

assess which best facilitates a strong sustainability approach to the land.

5.6 The Structure of the New Sustainability Restriction

This section brings together the component parts of this chapter with Chapter 2

(property theory) in which it was argued that property law is about the recognised

relationships we have with each other in respect of the land.1415 The Incidents of

Ownership1416 are detailed as a means to map both the elements of the three

theories in Chapter 3 and how they would respond to the insertion of the new

Sustainability Restriction. Further, it will explore how the insertion of the

Sustainability Restriction would bring about a paradigm shift to something similar to

the Land Model. This section will detail the development of the Sustainability

Framework to form the basis of the new Sustainability Restriction.

The Sustainability Restriction performs three functions in this research. First, it is

inserted into the Incidents of Ownership to provide the framework with which to

map and compare the three theories of property – the Liberal paradigm,

Stewardship and Progressive Property – to establish that the most effective model

is the new Land Model. Second, as a result of this research, it is established that

whilst the Land Model is the most effective model, a complete paradigm shift is not

proposed but that, instead, it is posited that the insertion of the Sustainability

Restriction will prompt a response that will shift the land holding paradigm towards

1415 Clarke and Kohler (n103) 3.1416 See 2.3.

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the new Land Model or a similar paradigm. Finally, as a consequence of this

research, it is established that the Sustainability Restriction can be used as an

addition to any form of private property paradigm to protect the land better

(discussed further in Chapter 6). The new Sustainably Framework provides a

means of primarily assessing land, as part of the environment, with the potential to

form a global measure, but within the context of this research to have national

application to reflect its previously defined parameters.1417 This research is not

seeking to formulate indices but instead a framework with the potential to be

developed further,1418 one that could perhaps be modified for use at a local,

regional, national or international level.

Table 5.5 shows the Sustainability Framework from which the three Land elements

(shaded green) will be taken and used to create the new Sustainability Restriction

which will effectively seek to restrict three fundamental aspects of our relationships

with each other in respect of the land – the rate of biodiversity loss, a change in

land use and tree cover loss – through the mechanism of private property. The new

Sustainability Restriction is not intended to act as a total obstruction to land use but

will restrict the amount that humanity may consume; in the same way that you may

drive your car but you are subject to driving it within appropriate speed restrictions.

As a consequence, it is established that whilst there is a most effective model (being the new Land Model incorporating the Sustainability Restriction), more

critical is the insertion of the Sustainability Restriction itself. The mechanics of its

potential application either in the new Land Model or as a stand-alone restriction

will be addressed in the next chapter. As the Sustainability Restriction is not

intended to form an absolute prohibition but to restrict quantity (reflecting

sustainability), context will be provided in which some form of offsetting will be

used (as discussed at 2.2.1).

There is a clear sense of congruity between the restriction on biodiversity loss

(focusing on land degradation), tree cover loss and change in land use as there is

a clear symbiosis with the land in which all three elements impact upon the others;

this is further evident when considering how the Sustainability Restriction could

work in practice. Tree cover loss impacts biodiversity and can cause a change in

1417 The focus of this research is Britain; see 1.2; 6.2.1418 There is scope to develop empirical research using this framework but data collection and analysis is beyond the scope of this research.

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land use; land use change can impact biodiversity; and biodiversity can also impact

land use.

Of the three component parts of the Sustainability Restriction biodiversity loss is a

broad area and includes ‘all life on Earth’ including ‘all species of animals and

plants’.1419 As Reid argues, a property rights approach does not naturally lend itself

to conserving biodiversity that is not easily divided into parcels. However, Reid

suggests that biodiversity offsetting may be one way to deal with this1420 and this is

developed at 6.5.4. From an anthropocentric perspective, biodiversity contributes

to meeting humanity’s food, nutrition and health needs,1421 and can reduce the cost

of financial damage from weather events such as severe flooding, illustrated by the

Wildwood Trust project in Canterbury where the introduction of natural wetland

species (such as beavers) promoted the restoration of natural flood defences.1422

The restriction on biodiversity loss in the Sustainability Restriction would have a

positive impact on biodiversity and a positive consequential impact on the land as

well as humanity and, as stated above, any positive steps no matter how small all

support the well being of the planet. In practical terms, the restriction to biodiversity

loss would not operate as a complete restriction but would restrict subject to

offsetting and (as argued above) would have a significant impact if applied to any

of the major estates.

Whilst acknowledging how vital a role the ecosystem contributes to humanity,1423

this is incredibly broad and to connect to the aims of this research to protect the

land, this element will be directed towards land degradation. This is in part a

response to the emphasis Rockström et al place on the damage done to land

through deforestation1424 and to connect to the research aim to better protect the

land. The Intergovernmental Science Policy Platform on Biodiversity and

1419 DEFRA, Biodiversity 2020: A strategy for England's wildlife and ecosystems services (2011) 4 <www.gov.uk/government/publications/biodiversity-2020-a-strategy-for-england-s-wildlife-and-ecosystem-services> accessed 30 May 2018.1420 Reid, 'Employing Property Rights for Nature Conservation' (n312) 169. See also Conservation Covenants (n73) 1.9.1421 Wendling et al (n1357) 78.1422 Peter Smith, ’Beaver & rewilding are the answer to the UK's flooding problem’ <https://wildwoodtrust.org/wildwood-kent/news/beaver-rewilding-are-answer-uks-flooding-problem> accessed 20 October 2019.1423 Katrine Grace Turner et al, ‘A review of methods, data, and models to assess changes in the value of ecosystem services from land degradation and restoration’ (2016) 319 Ecological Modelling 190, 191.1424 See 5.5.2.

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Ecosystem Services Report1425 did not define land degradation and it is still

analysed very much in terms of economic benefit or gain1426 for humanity’s benefit.

However, land degradation has been defined by Turner et al as, ‘a decline in the

processes and productivity of those ecosystems over an extended period of

time’.1427 The causes of anthropocentric land degradation range from agriculture,

deforestation or removal of natural vegetation, overexploitation of vegetation for

domestic use, overexploitation of natural water resource, overgrazing and industrial

activities.1428 This is where a restriction – to allow use but to restrict the extent of

such use – could have a positive impact on the types of activity that cause land

degradation. The activities would be permitted but only to certain levels with the

potential to offset damage. To illustrate with reference to grazing, there are clear

advantages from social and economic perspectives – providing food for humanity

to employment of those working in the industry – however, these behaviours are

not the ones that cause damage to the land. The issues arise through associated

activities such as too much or too little fertilizer use, shortening the period land lies

fallow, poor quality irrigation, the absence or bad maintenance of erosion-control

measures, improper use of heavy machinery1429 and the chemicals used on the

land. Accordingly, with grazing there could be a maximum restriction as to livestock

according to the landholding but this level of monitoring would come at a high

financial cost and, as argued, there will be resistance to any new programs

especially where there are high start-up costs. However, it is argued that the

planet, including humanity, would reap significant long-term benefits from such

action.1430 Land degradation following deforestation is admittedly less pertinent in

Britain than in Brazil, however both the Planetary Boundaries concept and the EPI

acknowledge that even a small change anywhere on the planet does make a wider

difference.1431

In the UK today, the indicators suggest that woodland (10% of the land mass in

England and 15% of Wales1432) is being restocked1433 thereby potentially making

this aspect of the Sustainability Restriction less pertinent in Britain. However, on

1425 IPBES, Report of the Plenary of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services on the work of its sixth session (March 2018 Medellin, Colombia) IPBES/6/15/Add.4.1426 Turner et al (n1423) 191.1427 ibid 191.1428 ibid 370. ibid 370.1429 ibid.1430 See 6.4.1431 See 5.5.1; 5.5.2.

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the basis that small steps contribute to the aggregate,1434 a restriction on tree cover

loss would still be of great value. To illustrate, under the Forestry Act 1967,1435

widespread tree felling is currently illegal without a licence. There are exceptions

such as felling trees and fruit tress in gardens, church yards or a public open space

where the public have a legal right of access for recreation, to prevent the spread

of a quarantine pest or disease, and some smaller trees.1436 However, were a

landowner to accept the obligations (with or without the tax incentives) in the

Sustainability Restriction voluntarily, this would clearly decrease the number of

trees felled which would in turn improve aggregate tree cover and potentially have

a positive local impact on protecting the biodiversity relying on the tree cover and

the soil.

Blewitt observes that many of these global issues are ‘generally accepted’ but what

remains is the politics.1437 This is a fair point in that there is little likelihood of a

political party imposing comprehensive sustainability legislation as long as public

opinion reflects its current reluctance to change. Morse adds that democratic

elections held every 4 to 5 years,1438 ‘may be unsuitable for regular intervention in

sustainability’ and that stakeholder participation is meant to supplement the usual

democratic process not to supplant it.1439 It is for these reasons that a concept of a

Sustainability Restriction forming a restriction on ‘overuse’ (albeit allowing a limited

use only which is subject to offsetting) could make some incremental headway;

and this will be considered in looking at the best jurisdiction for the most effective model in the next chapter.

One element from the EPI not included within the Sustainability Framework or the

Sustainability Restriction is the health impact, which has been removed due to its

peculiarity to humanity given that the new Sustainability Framework (and this

research generally) focuses on the land, as part of the environment. Arguably, this

introduces a degree of subjectivity to the new Sustainability Framework, which is

then transposed into the Sustainability Restriction, but this is (at least in part)

negated by the transparency and the stated goals.

1434 Stockholm Resilience Centre (n1348) 16.1435 Forestry Act 1967, s46(1) empowers Natural Resources Wales to make byelaws with respect to any land which is under its management or control and to which the public have access.1436 ibid,s9.1437 Blewitt (n980) 160.1438 The Fixed-term Parliaments Act 2011, now every 5 years.1439 Morse, Sustainability (n999) 200.

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Having formulated the new Sustainability Restriction, consideration must be given

to its application.. In creating a restriction on humanity’s relationship with the land,

this operates as a restriction on private use for public good. This was the issue

discussed in Kelo1440 and the US Takings (at 3.4.2) and it is clear that the

Sustainability Restriction will chip away at a private landowner’s right of exclusive

possession but critically its implementation will result in public benefit through the

better protection of the land, as part of the environment. On one level this could be

highly contentious (as was Kelo1441) but the counter argument reflects the long-term

benefit to the planet, and therefore to humanity. Further, it is highly plausible that

the Sustainability Restriction could operate more effectively within a communal

property paradigm (at 2.2.2) or within a Common Treasury,1442 however this is

beyond the scope of this research where the aim is to work within an existing

paradigm in acknowledgment of humanity’s resistance to change.1443 Additionally, it

is acknowledged that such a programme would have high start up costs both in

terms of implementation (including the relevant offsetting metrics) and on-going

management, but it is argued that these costs will lead to significant long-term

benefits both to the local area and on a more global scale. Connecting back to the

major estates (at 2.4), it is clear that a significant amount of land could be better

protected.

5.7 Conclusions

This chapter is a marrying of the two theoretical elements from the two disciplines

used in this research – property theory and sustainability – to answer a two-part

sub-research question: Is there a viable measure of Sustainable Development1444 and, if so, how can it be used to develop a Sustainability Restriction? The answer to the first part of this question is that there is currently

no satisfactory all-encompassing measure of sustainable development. However, it

is argued that despite the frequently articulated drawbacks of SIs, there remains

merit in the use of a framework and indicators within the context of this research, to

be applied in a new way to form a Sustainability Framework, from which a

1440 Kelo (n872).1441 See 3.4.2.1442 Winstanley (n607). See also Malcolm and Clarke (n286) 202.1443 See 4.5.1444 Acknowledging that Sustainable Development is the mechanism for achieving Sustainability see 4.3.

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Sustainability Restriction is created, to be used below in the property comparison.

To pursue the vitally strong sustainability approach when looking at the rights and

duties contained within private property rights, the owner of the land should have

an obligation towards the immediate environment and beyond, to the planet, for the

future. The new Sustainability Framework was developed based on the Bellagio

STAMP guidelines and draws from the EPI and the Planetary Boundaries concept,

and is to be used in this research in an innovative way, reconceptualised as the

Sustainability Restriction. A reductionist approach has been taken and rendered

valid through clarity, clearly stated methods and an ability to reinsert the framework

back into its context. The use of the Sustainability Restriction is the critical element

of the comparative analysis against which the three theories of property will be

assessed in the next chapter developing a sustainability test criteria that will be

used to identify the most effective model of property to protect land.

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Chapter 6 The ‘Most Effective Model’

6.1 Introduction

The main research question asks what is the most effective model of property to protect land, as part of the environment, for the future? This chapter will

conclude that the answer is the new Land Model, through a two-part sub-question:

which jurisdiction in Britain is best placed to support the new Land Model and, how do the property theories rank against each other in comparison? This chapter will begin with the comparative theoretical analysis1445 in which an

overview of the two jurisdictions – England and Wales – will be outlined pre- and

post-devolution (which, it will be argued, represents a critical juncture1446) to show

that both shared a familial foundational basis. Post-devolution sustainability

legislation has been selected for analysis for several specific reasons; the primary

reason being to connect with, and support, the argument (at 4.7) that one of the

fundamental issues with the implementation of comprehensive sustainability

legislation is that it lacks politically expediency. This is arguably one of the principle

reasons why there has been so little in the way of sustainability legislation issued

by the UK parliament.1447 In contrast, as part of the devolution settlement a

sustainability duty was imposed on Wales1448 and arguably this provides a better,

more in-sync foundation for the Sustainability Restriction on this basis. However, a

more detailed analysis of the limited legislation from the UK parliament in

comparison to that from the Welsh Assembly provides an opportunity to contrast

the extent and manner in which the statutory duty has been translated into

legislation. This analysis is largely doctrinal1449 and political given that the

completed legislation emanates from a political institution, driven by the political

party in government at the time. However, as evidenced by recent events in

parliament in matters of great significance, this is not always the case.1450 Much of

the legislation is comparatively recent and, consequently, little can yet be

concluded as to its relative success but it does provide the opportunity of an early 1445 See 1.2.10.1446 Ruth Berins Collier and David Collier, Shaping the Political Arena (Princeton UP 1991) 27-39.1447 See 6.2; 6.2.1.1448 Government of Wales Act 2006, s79(1).1449 See 1.2.91450 For example, The motion under section 13(1)(b) of the European Union (Withdrawal) Act 2018 to approve the Brexit withdrawal agreement 15 January 2019 was rejected 202–432; The Government were defeated multiple times on the European Union (Withdrawal) (No 5) Bill 3 April 2019.

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critique. Whereas Wales has passed sustainability legislation it is noticeable that,

in contrast, there has been a notable lack of significant legislation in England.

The second part of the sub-question: how do the property theories rank against each other in comparison? will be answered by bringing together the threads of

the previous chapters: the theoretical framework of property and sustainability

theories; the use of SI frameworks to create a new Sustainability Framework, in

turn reduced to be used as the Sustainability Restriction; culminating in the

comparison of the three theories mapped against the new ‘ownership’ criteria: the

Incidents of Ownership1451 together with the Sustainability Restriction. In the course

of mapping the three theories, hypothesis are made as to the formulation of

Stewardship and Progressive Property, were they to exist within private property.

The results of the comparative analysis will be presented demonstrating four key

points. First, that the application of one paradigm over another is less germane

once the new Sustainability Restriction (developed in Chapter 5) is applied,

imposing a restriction on land use; second, there is some flexibility between which

elements of the theories impact the outcome; third, it is actually the Sustainability

Restriction that proves to be vital to protect land, as part of the environment not

a complete change in the paradigm; and finally, the introduction of the

Sustainability Restriction will, over time, reformulate the current paradigm to evolve

to the new Land Model, or something substantially similar. The final section of this

chapter connects to the strong sustainability approach and the aim of creating a

mechanism for a slow, ground-up approach in response to humanity’s reluctance

to change, most evident through its reluctance to restrict consumption. Accordingly,

proposals are made in the context of a possible method of implementation of the

new Sustainability Restriction at HM Land Registry or the relevant Local Authority

(discussed at 6.4).

6.2 The Most Effective Jurisdiction

A brief synopsis of our island’s history is essential to provide a full understanding of

the distinctions between England and Wales (‘Britain’), England, Wales and

Scotland, (‘Great Britain’ or ‘GB’) and the United Kingdom (‘UK’), thereby

supporting the selection made. Before the reign of Henry VIII, England, Scotland,

Ireland and Wales were all separate entities; it was Henry who, depending on your

1451 Honoré (n164) 162-79.

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viewpoint, unified or subsumed Wales into England or the Kingdom of Britain.1452

Whilst it is often assumed that James I (and VI of Scotland) merged England and

Scotland, this in fact happened later (in 1707) under the Acts of Union1453 which

provided: a) for the dissolution of the Scottish parliament; b) for 451454 Scottish MPs

to sit in the English parliament; and c) for Scotland to retain its own legal system,

thus forming the new Kingdom of Great Britain.

The United Kingdom of Great Britain (‘the UK’) was formed following the Act of

Union 1800 which united Ireland with GB. The Republic of Ireland and Northern

Ireland will not be included in this research for several reasons, including that

neither forms part of the geographical or political landmass of GB; that neither

joined Scotland, England and Wales until significantly later (in 1800); and finally,

because Ireland separated when the Republic of Ireland seceded and both the

Republic of Ireland and Northern Ireland had their own parliaments from the

1920s1455 (thereby making it less capable of offering a viable model for

comparison1456). The government began the process of devolution in 1998-99,1457

delegating powers to a Scottish Parliament, a National Assembly for Wales, a

Northern Ireland Assembly1458 and a London Assembly.1459 Up until devolution,

landholding in England and Wales was therefore subject to the same statutory

constraints and the same body carried out the process of managing the registration

of estates and interests.

Devolution represents a clear political watershed – defined as a clear change in

political direction which goes on to shape politics for years afterwards1460 – and

devolution within Britain in recent years affected just such a constitutional change

1452 Laws in Wales Acts 1535 and 1542.1453 The Union with Scotland Act 1706 and the Union with England Act passed in 1707.1454 59 seats today.1455 The Government of Ireland Act 1920 created the parliaments in Northern and Southern Ireland and reduced the representation of both parts at Westminster.1456 Pennings, Keman and Kleinnijenhuis (n206) 7.1457 See Ian Loveland, Constitutional Law, Administrative Law, and Human Rights (7th edn, OUP 2015) 421- 25.1458 Ireland is beyond the scope of this thesis.1459 The Greater London Authority Act 1999 and 2007 created the Greater London Authority (GLA) and is not included, as it does not have equivalent legislative powers to Wales.1460 Collier and Collier (n1446) 27- 29; Giovanni Capoccia and R Damiel Kelemen,'The Study of Critical Junctures Theory, Narrative, and Counterfactuals in Historical Institutionalism' (2007) 59 World Politics 341, 349.

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through the Government of Wales Act in 1998.1461 This Act has specific impact for

this research through the eventual creation/formulation of a reserved powers model

devolving specific powers to the Assembly and Welsh ministers.1462 Table 6.1

Jurisdictional Overview has been developed to assist in the sequencing of events

in the analysis of the response to the first part of the sub-research question: which jurisdiction in Britain is best placed to support the new Land Model?

Table 6.1 Jurisdictional Overview1463

Table 6.1 illustrates the English and Welsh (common law) liberal paradigm pre-

devolution. Here, the focus will move to post-devolution sustainability legislation,

taking a reductionist approach.1464 This is relevant because a critical juncture (here,

1461 Together with subsequent legislation Government of Wales Act 2006; Wales Act 2017.1462 Wales Act 2017.1463 Created as a product of this research.1464 See 5.2. See also Giovanni Sartori, ‘Concept Misinformation in Comparative Politics’ (1970) 64(4) The American Political Science Rev 1033, 1038 by decreasing the number of properties considered the concept becomes more abstract.

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devolution) is a relatively short moment in time when there is a, ‘substantially

heightened probability’ that an agent’s choice will have a greater impact than (here)

had devolution not happened;1465 and that what had happened before the critical

juncture in turn impacts the possible outcomes.1466 This research is not focussing

on institutional analysis1467 but a political analysis of the post-devolution,

land/sustainability related legislation, in turn connecting to the main research aim to

protect the land better. Legislation is the purview of the government and parliament

in which, ‘Parliament makes the law, the executive carry the law into effect’.1468

However, today there is a clear opinion that parliament is, ‘rarely the law-making

body in any meaningful sense’1469 for England and, in non-devolved matters, for the

UK but that the Executive drives the content and direction of legislation.1470 It

follows that the introduction of legislation is largely dependent on the political aims

of the Executive, arguably seeking to deliver election manifestos and (as stated

above at 4.5) responding to crises, such as the 2008 financial crisis. However, this

is being challenged and the role of the House of Commons in the passage of

legislation is considered to have become subject to increased rigour1471 with

Loveland citing the increased assertiveness of backbench MPs in the passage of

legislation such as the Shops Act 1986.1472 However, in recent parliaments with

much slimmer or even no majorities1473 there is a clear argument that the more

recent events in the House of Commons over Brexit provide a much more powerful

example of MPs from all parties demonstrating a clear lack of willingness to follow

the party line in heightened issues. 1474 Whilst the critical state of the planet is yet to

reach these heights in Westminster, it is plausible that it may soon in response to

1465 Giovanni Capoccia and R Damiel Kelemen,'The Study of Critical Junctures Theory, Narrative, and Counterfactuals in Historical Institutionalism' (2007) 59 World Politics 341, 348.1466 Paul Pierson, ‘Increasing Returns, Path Dependence, and the Study of Politics’ (2000) 94(2) American Political Science Rev 251, 252.1467 Simon Bulmer and Martin Burch, ‘Organising for Europe: Whitehall, the British State and the European Union’ (1998) 76 Public Administration 601, 601.1468 M v Home Office and Another [1994] 1AC 377 [395].1469 Loveland (n1457) 131. See also Mark Elliot and Robert Thomas, Public Law (3rd edn, OUP 2017) 110-12.1470 ibid 1311471 ibid 131-36.1472 ibid 135-36.1473 Cameron’s 2015 parliamentary majority was 15, May’s 2017 working majority was 13.1474 For example, The motion under section 13(1)(b) of the European Union (Withdrawal) Act 2018 to approve the Brexit withdrawal agreement 15 January 2019 was rejected 202–432; The Government were defeated multiple times on the European Union (Withdrawal) (No. 5) Bill 3 April 2019. See also Mark Elliot and Robert Thomas, Public Law (3rd edn, OUP 2017) 112.

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demonstrations and protests. 1475 Legislation may, in future, be less subject to party

political bias.

This section will identify the jurisdiction best suited to support the new Land Model

(formulated at 6.3.12), which will be shown to be the most effective model to

protect land in response to the main research question. Whilst the Land Model is

the optimum goal, the Sustainability Restriction, if imposed, would itself have a

significant impact and would over time prompt a change in the property holding

paradigm, in a way similar to the evolution of the Liberal paradigm.1476 As illustrated

at Table 6.2 and discussed at 3.2, the current Liberal paradigm is very much a

product of historical, social and economic influences and shaped by common law

and statute. By adding the Sustainability Restriction, it is argued that the land

holding paradigm would evolve to be (or be substantially like) the Land Model.

Post-devolution legislation has been selected for comparison for several reasons.

First, it is an indicator of whether change is yet evident in each jurisdiction given

that such a need for change has been consistently emphasised throughout this

research; second, it connects to the concept of the Sustainability Restriction1477 and

to the use of Sustainability as one aspect of the theoretical framework to this

research; and finally, it provides an opportunity to critique recent developments in

this field. This section will analyse the English and post-devolution Welsh

legislation concluding it is the latter – the Well-being Act 2015, the Planning

(Wales) Act and the Environment (Wales) Act (collectively ‘the Welsh legislation’) –

that suggests Wales would be the most likely jurisdiction to support a Sustainability

Restriction and the jurisdiction best placed to support such a model, to protect the

land, as part of the environment, taking a strong sustainability approach.

Further, this analysis will conclude that there is little in the way of substantive

change flowing from land related legislation in England, but in Wales there is every

indication that (as indicated at Table 6.1) revision of the Welsh legislative agenda

is likely to prompt change.1478 Based on the divergence of the legislation in the two

jurisdictions, it is argued that there is likely to be further change in the future in the

formulation of the property model in Wales, in much the same way that the current

1475 For example Extinction Rebellion < https://rebellion.earth/> accessed 1 September 2019; Greta Thunberg, No One is Too Small to Make a Difference (Penguin 2019).1476 See 3.2.1477 See 5.6.1478 Paul Pierson, "Big, Slow-Moving, and … Invisible' in James Mahoney and Deitrich Rueschemeyer (eds) Comparative Historical Analysis in the Social Sciences (CUP 2003) 181.

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liberal paradigm has evolved; whereas any similar evolution within England (via the

UK parliament) is unlikely to happen in the immediate future.

6.2.1 English Legislation

It has been argued above (at 3.2) that the liberal paradigm is often perceived as

evident in the phrase ‘an Englishman’s home is his castle’,1479 which highlights the

male’s perceived total control over his household and land; albeit this has evolved.

Whilst the view that the private owner owed no duty to consider wider interest has

in the past been judicially acknowledged,1480 leaving them free to deal with their

land in any way they saw fit,1481 more recently this has been challenged as

illustrated by Scott J, who suggested that the, ‘robust Victorian approach … might,

perhaps, find less sympathy now’.1482 It is argued that there will invariably be

extremes such as the most frequently cited1483 ‘high-point’1484 of Victorian

absolutism, the case of Bradford v Pickles.1485 Yet this absolutist approach has

been impeded by legislation and common law. Aspects of Blackstone’s, ‘sole and

despotic dominion’1486 still exist, supported by case law that can be interpreted as

maintaining this approach.1487 Yet, it is argued that there has been a change since

Gray and Gray observed, ‘the untrammeled nature of the common law perception

of ownership still surfaces in relatively recent judicial utterances’,1488 albeit these

refer to cases from 20 years ago.1479 ‘For a man’s home is his castle, et domus sua cuique est tutissimum refugium (and each man’s home is his safest refuge)’, Edward Coke, Institutes of the Laws of England1480 Gray and Gray, Elements of Land Law (n2) 109.1481 Chasemore v Richards [1859] 11 ER 140; Tapling v Jones [1865] 11 ER 1344.1482 Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 38 BLR 82 [96]; Gray and Gray, Elements of Land Law (n2) 109.1483 Gray and Gray, Elements of Land Law (n2) 110; Helena Howe, 'Developing Constraints on Property Rights in the Community Interest: Concepts of Ownership and the Limitation of Property Rights in Land and Copyright Law' (PhD thesis, QMUL 2010) whilst Howe defines the case as an example of absolutism she also sees it as an example of the Liberal model.1484 Gray and Gray, Elements of Land Law (n2) 110.1485 [1895] AC 587 still cited Land Securities plc and others v Fladgate Fielder (a firm) [2010] Ch 467 at 108.1486 Blackstone (n245) Book II, ch 1.1487 Gray and Gray, Elements of Land Law (n2) 109 fn 2 refers to Phipps v Pears [1965] 1 QB 76, Lord Denning.1488 R v Denton [1981] 1 WLR 1446 at 1149C; Gray and Gray, Elements of Land Law (n2) 109; Hunter and Others Appellants and Cross-Respondents v Canary Wharf Ltd [1997] 2 WLR 684.

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In the last few decades there have been increased restrictions. The erosion of

absolutism is evident in the challenges and constraints1489 beginning with the

limitations on the extent of ownership cuius est solum,1490 which no longer means

that ownership brings full control of everything from the heavens to hell. In Britain

today, rights of exclusive possession are subject to a variety of encroachments

such as the bare licence – a personal permission, granted without consideration, to

enter the land of another – such as a postman delivering letters;1491 the powers of

the police to enter;1492 rights of access by utility companies;1493 restrictions on the

physical space around us contained in common law and statute;1494 nuisance (both

public and private); economic considerations and planning; all of which limit the

rights of the owner.1495 The right to use and manage land is subject to planning

legislation; the right to roam under the Countryside and Rights of Way Act 2000

enables the public to enter and remain on access land;1496 the Wildlife and the

Countryside Act 1981 protects plants, habitats and animals,1497 along with the

Environmental Protection Act 1990, and the Climate Change Act 2008 to name just

a few. Equally there are implications on the sale of land for landowners (notably

through taxation1498) yet whilst the right to exclude has been eroded, it remains a

dominant concept in property law1499 within the English model meaning that whilst

this remains, there is a reduced likelihood of the paradigm evolving rapidly.

England is now the only country within the UK not to have its own devolved

Parliament or Assembly, so legislation produced by Parliament at Westminster will

be considered representative of the English jurisdiction. This section will argue that

1489 Christopher Rodgers, ‘Property Rights, land use and the rural environment: A case for reform’ (2009) Land Use Policy 26S, S134; Gray and Gray, Elements of Land Law (n2) 15; Bernstein (n116); Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35; Civil Aviation Act 1982.1490 LPA, s1(1)(a) and (b). See also Law Commission, Leasehold enfranchisement: A summary of proposed solutions for leaseholders of houses 2018 (Consultation Paper No 238, 2018).1491 The Carlgarth [1927] P 93. 1492 Police and Criminal Evidence Act 1984.1493 Water Industries Act 1991 (water and sewers); Electricity Act 1989; Gas Act 1986.1494 Bernstein (n116). 1495 Clarke and Kohler (n103) 217-33.1496 Countryside and Rights of Way Act 2000, s1.1497 Penalties include an unlimited fine, up to six months imprisonment or both.1498 Stamp Duty Land Tax Act 2015; Taxation of Chargeable Gains Act 1992; Inheritance Tax 1984.1499 Waring (n290).

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the legislation produced post-1999 actually demonstrates very little to support the

ability or willingness to change that is needed to protect the land better. Whilst the

Environment Act 1995 is not included here (given that it predates devolution) it

should be acknowledged that it contains a principal aim of, ‘attaining the objective

of achieving sustainable development’,1500 thereby setting the tone for the English

legislation; pursuing sustainable development based on the Brundtland Definition.

It is argued that the body of England’s post-devolution legislation reveals a degree

of apathy seemingly at odds with the (of the time) Labour Government’s policy in

One Future – different paths1501 and Securing the Future delivering UK sustainable

development strategy1502 dated 2005 but published in 2011 by the Coalition

Government, and its emphasis on strong sustainability.1503 The House of Commons

International Development Committee UK implementation of the 17 SDGs1504 again

seeks to promote sustainability and time will tell if legislation is forthcoming. A

review of the primary legislation1505 created post-devolution, seeking any use of

sustainability, sustainable development or something similar reveals no

overarching sustainability legislation and demonstrates a lack of cohesion in itself

and with other legislation. This is evident through the lack of examples of even the

use of the term sustainable development as opposed to different terminology. To

illustrate, the Sustainable Energy Act 2003 and the Climate Change and

Sustainable Energy Act 2006 make no reference to sustainable development at all

but instead refer to sustainable energy (neither of which define what is meant or

intended by the idea of sustainable energy). Similarly, the Sustainable

Communities Act 2007 uses the phrase sustainable strategy (again, not defined).

The Clean Neighbourhoods and Environment Act 2005 creates a Commission for

Architecture and the Built Environment1506 which, ‘must have regard to national

policies and advice relating to sustainable development’1507 but which has minimal

force or sense of obligation and its ambit is restricted given the list of functions the

commission may perform.1508 Much the same is true of the Localism Act 2011

which seeks to put more powers into the hands of local authorities and local

1500 The Environment Act 1995, s4(1).1501 SDC, One Future – different paths (n978).1502 DEFRA, Securing the Future (n1032) 6.1503 Ross, Sustainable Development Law (n70) 26; see 3.3.1504 House of Commons International Development Committee, UK implementation of the Sustainable Development Goals (2016) HC 106.1505 Selected because Bills and Legislation set out proposals for new laws and plans to change existing laws and critically are debated before Parliament.1506 The Clean Neighbourhoods and Environment Act 2005 pt 8.1507 ibid s88(9).1508 ibid s88.

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communities to purchase community buildings, to enable communities to produce

a neighbourhood development plan (provided it is in line with National Planning

Policy Framework (‘NPPF’)) and to place a duty on planning authorities and county

councils to cooperate to make orders that contribute to sustainable

development.1509 However, this is simply a duty to cooperate and must be

distinguished from a clear duty to act in accordance with sustainable development

principles. Again, sustainable development is not defined in the Localism Act and

when used by a local and/or planning authority then reference would presumably

be made to the NPPF. It is argued that the NPPF (March 2012) is in need of an

update. First, it is based on the UK Sustainable Development Strategy Securing

the Future1510 published almost 15 years ago, when less was recognised globally in

terms of the need to halt climate change amongst other issues.1511 Second, its five

guiding principles of sustainable development – ‘living within the planet’s

environmental limits; ensuring a strong, healthy and just society; achieving a

sustainable economy; promoting good governance; and using sound science

responsibly’1512 – provide a fairly woolly approach in terms of how the environment

should be treated; third, in terms of how the environment should be viewed, it

reverts to the Brundtland approach of breaking sustainability down in to social,

economic and environmental issues, echoing the 3 ellipses;1513 and finally (and

critically), it does not provide a duty to act. Sustainability has developed

significantly post-Brundtland by the UN to the 17 SDGs1514 and, even though these

post-date the NPPF, surely these should now be reflected in English legislation?

Further, the current government’s proposals to provide 300,000 homes a year by

the mid 2020s1515 does indicate a priority placed on the social and economic

aspects, indicating a more relaxed approach to development, most likely at the

expense of the environment. In contrast, the Natural Environment and Rural

Communities Act (‘NERC’) 20061516 (despite being another missed opportunity to 1509 Localism Act 2011, pt 6 ch 1, s110.1510 DEFRA, Securing the Future (n1032) 6.1511 For example COP 21 was 15 years later.1512 Department for Communities and Local Government, The National Planning Policy Framework March 2012 <www.gov.uk/government/uploads/system/uploads/attachment_data/file/6077/2116950.pd> accessed 9 July 2017.1513 Ministry of Housing, Communities and Local Government, National Planning Policy Framework February 2019, CP 48 ch 2.8.1514 17 SDGs (n54).1515 Ministry of Housing, Communities and Local Government (n1206).1516 Natural England is specifically intended to function within England. See Natural Resources for Wales <https://naturalresourceswales.gov.uk/?lang=en> accessed 25 October 2019.

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make reference to sustainable development) takes steps forward but it is argued

that these are insufficient. NERC is primarily concerned with wildlife, sites of

special scientific interest and national parks and rolls several functions into the

newly formed Natural England, which has been given a general purpose to

conserve, enhance and manage for the present and future generations.1517 Here,

there is at least a requirement to enhance, but this falls short of the strong

sustainability aims of this research and, in general terms, of restoring damage

done.1518 The most exciting aspect of this legislation is the positive duty to conserve

biodiversity however this only applies to a public authority1519 under s41(1), and not

as is proposed in this research through the voluntary acceptance (with or without a

financial incentive) of the Sustainability Restriction with the potential to apply to any

land in Britain.

Another criticism of NERC is that it falls to the Secretary of State to decide what

living organisms and types of habitat should be protected through the publication of

a list based on his/her opinion as to which are of principal importance.1520 Although

this places these decisions into the hands of elected ministers, there remains

potential for the needs of the environment to be downplayed in favour of more

politically expedient needs (for those who can vote) such as housing. Similarly, the

Housing and Regeneration Act 2008 is another ‘damp squib’ as it creates the

Homes and Communities Agency1521 with its ’object’ (but not a duty), ‘to contribute

to the achievement of sustainable development and good design in England’.1522

Further, just what is intended to be achieved is still not set out, nor is sustainable

development. Interestingly, a recent UK Government policy paper on Brexit

references sustainable development directly to the ‘UN sustainable

development’1523 – perhaps this signifies a much-needed step forward.

1517 Natural Environment and Rural Communities Act 2006, s2(1).1518 See 4.4.1.1519 For example a county, district, community, parish or town council, a government department, NHS Trust or utility company Natural Environment and Rural Communities Act 2006, s40(4). 1520 Natural Environment and Rural Communities Act 2006, s41(1).1521 Housing and Regeneration Act 2008, s1.1522 ibid s1(d).1523 HM Government, Explainer for the Political Declaration setting out the framework for the future relationship between the United Kingdom and the European Union, para 100 <www.gov.uk/government/publications/withdrawal-agreement-and-political-declaration> accessed 7 December 2018.

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There is one further example of a hint of a change in direction albeit a minor one

that is still to be fully developed. Jenkins argues that whilst the International

Development Act 2002 (‘IDA’), introduced to eliminate global poverty, does not

have an, ‘overriding duty’ to sustainable development it does, ‘for the first time

provide such a duty in relation to specific aspects of their work’.1524 Whilst this

change in tack is promising, Jenkins rightly points out1525 that the likely impact is

minimal as there is no definition of sustainable development in section 1 (IDA)

which could, ‘seriously undermine the inclusion of a statutory duty in respect of

Sustainable Development by providing the Secretary for State with a power to act

simply when he or she considers it prudent’.1526 As this has not been developed

since 2002 and, given the potential political consequences of imposing

sustainability legislation, it is now more likely that England will watch and wait to

see how Wales (and Scotland) fare.

As discussed at 3.2, the Liberal paradigm today is very much a product of time and

events that have shaped it. Table 6.2 illustrates how over time economic and social

factors has prompted the land holding paradigm to evolve. Further, the democratic

process enables people to vote for government and influence decision making.

Pressure groups, NGOs and political protest can have a positive impact on

government and prompt a change through the judiciary. The inclusion of the

Sustainability Restriction could significantly impact the current property paradigm

as a result of implementation through legislation. However, on the basis of the

legislation to date, and in the absence of a pro-active legislative agenda, it is

unlikely the paradigm will evolve quickly in England.

6.2.2 Welsh Legislation

As outlined above, the Welsh model contained the same features as the English

model up to the time of devolution – the critical juncture.1527 Devolution for Wales

has been described as, ‘a more modest affair’ than that of Scotland, primarily as a

result of the meagre level of support for Welsh devolution1528 at the time.

Subsequently however, it has unquestionably changed the political landscape in

1524 Jenkins (n1017) 597.1525 ibid 598.1526 ibid 598.1527 See 6.2.1528 Loveland (n1457) 433.

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Wales,1529 enabling its government to assume responsibility for policy issues

relating to education, health, local government, transport, planning, economic

development, social care, heritage, the environment and sustainability.

Table 6.2 Influences Upon Property Models1530

Devolution in Wales took place in phases. The Government of Wales Act 1998

gave the Welsh Assembly authority to pass secondary legislation affecting Wales

in specified areas, and executive powers around how UK laws would be

implemented.1531 Following this, the Richards Commission1532 reviewed the powers

and electoral arrangements of the Assembly and, in response the UK Labour

government, published a Better Governance for Wales in June 2005. The key

proposals were a legal separation between the Welsh Assembly Government and

the National Assembly, increased legislative powers and electoral reform paving

1529 The National Assembly for Wales formed following the Government of Wales Act 1998 and 2006 created an executive body, the Welsh Assembly Government. See also http://www.assembly.wales/en/abthome/role-of-assembly-how-it-works/Pages/history-welsh-devolution.asp.1530 Created as a product of this research.1531 National Assembly for Wales (Transfer of Functions) Order 1999.1532 The Commission on the Powers and Electoral Arrangements of the National Assembly for Wales 2004.

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the way for the Government of Wales Act 2006 (which enabled the Assembly to

make laws directly on twenty devolved areas). This was succeeded by the Wales

Act 2017, which implemented the Government’s commitment for legislative change

in the St David’s Day Agreement1533 creating a reserved powers model for Wales,

with further powers devolving to the Assembly and Welsh Ministers in areas such

as elections, transport, energy, and the natural environment.

Unlike the other devolution settlements, the Welsh settlement placed a duty on the

Welsh Assembly to promote sustainability under the Government of Wales Act

2006.1534 Although this was the first instance of a sustainability duty being imposed,

it is argued that it could have been both more far-reaching and specific as the duty

is broad and potentially open to interpretation. This was possibly a reflection of an

intention by the UK government to enable the Welsh Assembly to determine the

extent of the sustainability duty. Under this legislation the Welsh Ministers are

required to make a sustainable development scheme setting out how they propose

to promote sustainable development1535 following consultation with, ‘such persons

as they consider appropriate’.1536 But, as with the English legislation,1537 the

Government of Wales Act avoided defining sustainable development. In response,

the newly formed Welsh Government took the opportunity to re-assess and

initiated The Wales We Want conversation, a pilot exercise1538 set up to help shape

legislation and embed the notions of Sustainability and Sustainable Development

through a ground-breaking piece of legislation – the Well-being Act 2015 – which

was intended to be one of 3 major pieces of legislation to work in unison1539 (the

others being the Planning Act 2015 and the Environment Act 2016). The Well-

being Act sets out to fulfil the requirement placed on the Welsh Assembly but also

aims to be proactive, to look at issues in a more joined up way and it created the

role of the Future Generations Commissioner for Wales to act as a guardian of the

interests of future generations in Wales. So, ahead of devolution there was every 1533 HM Government, Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales (Cm 9020 2015).1534 Government of Wales Act 2006, s79(1).1535 ibid, s79(1).1536 ibid, s79(3).1537 See 6.2.1538 Welsh Government initiative delivered through Peter Davies, Commissioner for Sustainable Futures, and managed by Cynnal Cymru - Sustain Wales,’The Wales We Want <www.thewaleswewant.co.uk> accessed 8 March 2016.1539 Victoria Jenkins, 'The Environment Wales Bill' (SLS Conference, Nottingham September 2014); Huw Williams and Victoria Jenkins, 'The Planning (Wales) Act 2015: a case study in evidence-based planning reform under devolution' (2016) J of Planning and Environment L 1, 3.

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indication that the status quo (as in England at 6.2.1) would be retained but

devolution brought Wales the opportunity to re-assess its legislative agenda.. The

driving force for change has come through legislative developments, in response to

the clear obligation put on Welsh Ministers, the local planning authority in Wales

and other public bodies (defined by reference to the Well-being Act 2015)1540 to

enact sustainable development in accordance with the Well-being Act 2015.

Accordingly, this new legislation is the key element that will prompt a change in the

post-devolution paradigm.

The Welsh legislation’s approach has been in marked contrast to the English

however, as detailed above, this was in response to a statutory requirement to

introduce sustainable development into legislation.1541 It is argued that whilst this

legislation is not perfect, it represents a significant step in the right direction.

Looking at the provisions of the Well-being Act 2015, sustainable development is

defined as being, ‘the process of improving the economic, social, environmental

and cultural well-being of Wales by taking action, in accordance with the

sustainable development principle’;1542 meeting the needs of the present generation

without compromising the ability of future generations to meet their own needs.1543

This is a clear reflection of the Brundtland Definition, breaking sustainable

development into economic, environment and social issues and was passed in

2015, the same year as the adoption of the 17 SDGs1544 so realistically these could

not have been incorporated in this legislation. Encouragingly, it is pleasing to

recognise the Act’s loftier aspiration than that expressed by the Brundtland

Definition of seeking to ‘improve’ rather than just ‘meet’ the needs of the people;

the sustainable duty has been placed squarely on public bodies and, in so doing,

has produced the first viable obligation to sustainable development.

On the other hand, given the wide ambit of the opportunity to legislate afforded by

the Government of Wales Act, it is perhaps disappointing that (following

consultation) this statutory duty was placed only on public bodies, expressed as

being: the Welsh Ministers, a local Authority, Local Health Board, two NHS Trusts

(Public Health Wales and Velindre), the National Authority for a National Park, fire

and rescue, the Natural Resources Body, Higher Education Funding Council, Arts

1540 Well-being Act (n990), s2(1).1541 Government of Wales Act 2006, s79(1).1542 Well-being Act (n990) pt 2, 2.1543 ibid pt 2, 5(1).1544 United Nations Sustainable Development Summit 2015, New York September 2015.

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Council, National Library and the National Museum of Wales.1545 Davies suggests

that the rationale behind the selection of Public Bodies was based on the extent of

funding, activities, and functions and status as ‘auditable public bodies’.1546 The

public bodies that fall within the ambit of this statutory duty (estimated initially to

number 431547) are required to ‘carry out’ sustainable development,1548 defined as a

process in accordance with a principle aimed at achieving the well-being goals. 1549

Critically, it does not require the public bodies to achieve these goals;1550 they are

required to set objectives and take all reasonable steps to meet the well-being

objectives.1551 On this, there are two points. First, there is a positive obligation (as

part of the statutory obligation) that they ‘must include’ the setting of well-being

objectives;1552 albeit each public body could set its own objectives, leaving a

potential lack of cohesion. Second, reasonable steps could be taken without the

objectives being achieved, meaning that it is really more of a ‘we’ll do our best to

try’ scenario rather than we will achieve;1553 perhaps not the extent of the legislative

duty envisaged at devolution. To date, there have been a few reported cases

referencing the Well-being Act and those that do have largely been in the context

of planning issues. In the most recent, Warton and Evans v Rhondda Cynon Taf

County BC,1554 the local planning authority – criticised for refusing an application on

the basis that it contradicted the aims and objectives of the Well-being Act – was

deemed, ‘vague and generalised’1555 possibly indicating that the relevant public

bodies have perhaps not yet fully got to grips with the legislation.

As discussed above (at 4.5), the Well-being Act also created the Future

Generations Commissioner and there remain issues with the creation of such a

role without sufficient statutory powers of enforcement, with the absence of a clear

timeline to achieve the plans,1556 and with a woefully small budget.1557

1545 Well-being Act, 6(1).1546 Haydn Davies, ‘The Well-being of Future Generations (Wales) Act 2015: Duties or aspirations?’ (2016) 18(1) Environmental L Rev 41, 43.1547 ibid 43.1548 Well-being Act, s3(1).1549 ibid s2.1550 Davies (n1546) 44.1551 Well-being Act, s3(2)(b).1552 ibid s3(2).1553 Davies (n1546) 45.1554 [2019] PAD 10.1555 Warton and Evans v Rhondda Cynon Taf County BC [2019] PAD 10 [43].1556 Haydn Davies, 'The Well-being of Future Generations (Wales) Act 2015 - A Step Change in the Legal Protection of the iInterests of Future Generations? (2017) (29) J of Environmental L 165, 172-75.1557 ibid 175.

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The Planning Act promotes a more joined up approach and similarly applies to a

public body (with reference to the Well-being Act), a planning authority and Welsh

Ministers.1558 Here, the statutory duty is to carry out sustainable development in

accordance with the Well-being Act to ensure that the development and use of land

contribute to improving the economic, social, environmental and cultural well-being

of Wales.1559 This applies to the exercise of a function under the National

Development Framework for Wales, a strategic development plan or a local

development plan1560 and the duty applies to any application for planning

permission made, or proposed to be made.1561 Jenkins suggests this, ‘sets an

overarching purpose of planning … the use of land for sustainable development’1562

but this legislation will only come into play in a matter where there is a planning

application or matter impacting the National Development Framework for Wales; a

lower threshold of application than the proposed Sustainability Restriction that

could (subject to voluntary acceptance) apply to any land regardless of whether it

was the subject of a planning application. Similarly (and as with the Well-being

Act), a further criticism is that the legislation only has application to public bodies

whereas it is plausible that this duty could equally be applied in a relatively

straightforward way to all landowners as the legislative framework is now in place

to do so. In essence, the teeth of this legislation are dulled by the fact that, as

Williams and Jenkins state, ‘this duty does not of itself affect the statutory duties of

planning authorities in determining planning applications’.1563 Accordingly, the

sustainable development duty will be considered hand in hand with the other

planning considerations in determining an application.1564 This is not a strong

sustainability approach but arguably is one that requires the relevant bodies at

least to consider sustainable development. This legislation is a ‘classic piece of

framework legislation’,1565 one that paves the way for further development that, over

time, might evolve towards a greater emphasis on strong sustainability.

More recent legislation, in the form of the Wales Act 2017 (introducing a reserved

powers model of devolution for Wales as discussed above), indicates an appetite

1558 Planning Act, s2(4).1559 ibid, s2(2).1560 ibid s2(1)(a).1561 ibid ss2(1) and 2(2).1562 Williams and Jenkins (n1539) 643.1563 Planning Act, s2(5).1564 Williams and Jenkins (n1539) 643.1565 ibid 669.

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for reform and if the legal duty contained within the Well-being Act is observed it

could (and should) have a significant impact.1566

The final piece of legislation to be analysed is the Environment Act, a wide ranging

statute that addresses natural resources, climate change, plastic bag charges,

collection and disposal of waste, fisheries and marine licensing with a stated

purpose to, ‘promote sustainable management of natural resources’.1567 The

relevant sections (to this research) are those relating to the sustainable

management of natural resources in Part 1.1568 Natural resources are broadly

defined to include (but not limited to) animals, plants and other organisms, air,

water and soil, minerals, geographical features and processes, physiographical

features, climactic features and processes.1569 However, in this legislation there is

a break from the use of sustainable development and the phrase ‘sustainable

management of natural resources’ is used, being defined as, ‘taking action to

promote and not taking action to hinder the achievement of the object’,1570 which is

to, ‘maintain and enhance the resilience of the ecosystem’ whilst meeting the

needs of the present generations without compromising those of future

generations.1571 The Environment Act enhances the duty by amending existing

legislation; sections 6 and 7 of the Environment Act replace sections 40 and 42

respectively of the Natural Environment and Rural Communities Act 2006

(discussed above). It is argued that it would be preferable for this legislation to be

more cohesive, to use the same terminology as the two previous pieces of

legislation however sustainable development would (as argued at 4.5) place too

significant an emphasis on development in economic terms. The most important

aspect of this legislation is that it places an obligation, not only to maintain but also

to enhance; a greater obligation than that contained in the Brundtland Definition

marking a shift to a more proactive approach towards rectifying the damage

already done by humanity. Again, in a similar vein to the Well-being Act and the

Planning Act these duties apply only to public authorities,1572 and whilst this uses

slightly different terminology from the two previous pieces of legislation it

encompasses broadly the same group. Section 6 of the Environment Act requires a

public authority to embed consideration of biodiversity and ecosystems into early

1566 ibid s2(2).1567 Environment Act, pt I, 1.1568 ibid.1569 ibid pt 1, ss2(a)-(f).1570 ibid pt 1, s3(1).1571 ibid pt 1, s3(2).1572 ibid ss6(9)-(10).

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thinking, business planning that includes policy, plans, programmes and projects,

which would include amongst other things planning policy frameworks, housing,

hospitals and education. The Welsh Ministers are required, under section 9, to

prepare, publish and implement a natural resources policy but, as with the Well-

being Act, they must only ‘take all reasonable steps’1573 to implement the policy.

This is disappointing in that the implementation of the biodiversity duty is

dependent upon a moderate amount of effort at a time when considerably more

protection is needed; again, this is in contrast to the Sustainability Restriction and

its potential application to all land in Britain and its particular focus on protecting

biodiversity. To date, there are no reported cases referencing this legislation so

time will furnish more information as to its success.

It is argued that new sustainability legislation will (over time) affect a change in the

property paradigm as shown at Table 6.1 and Table 6.2. It may also prompt the

Welsh people to take a different view on sustainability, in turn leading to change

though their choices in democratic elections and/or involvement in pressure groups

and NGOs. Whilst there is definitely scope to do more (as discussed above), this

legislation shows clear and welcome progress in the right direction with a positive

desire and intention to make sustainable development a much more meaningful

part of future policy and legislation and, on this basis, it is argued that the new

Land Model of property would be better supported in Wales.

6.3 Testing the Liberal Paradigm, Stewardship and Progressive Property

Through a three-phase process, this section will answer the second part of the

sub-research question: how do the property theories rank against each other in comparison? In turn, this will address a significant portion of the main research

question by comparing the three theories – the Liberal Paradigm, Stewardship and

Progressive Property – and presenting the results. This aspect is critical for three

reasons. First, whilst Stewardship is at best vague1574 and the contours of

Progressive Property have yet to be outlined, this analysis offers an opportunity to

consider the forms of these paradigms. Second, a clear comparison can be drawn

between on the one hand Stewardship and Progressive Property, against the

current Liberal Paradigm. Finally, the comparison illustrates that the application of

1573 Environment Act, s9(4)(a).1574 Roach, Hollis, McLaren, Bavington (n684) 43; 47; 66; Barritt (n86) 2.

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one theory over another is less germane once the new Sustainability Restriction is

applied.

The comparison is in three parts. First, each of the three theories will be analysed

using Honoré’s Incidents of Ownership as clear points of comparison, with the

results presented in tabular form at Table 6.3: Formulating the New Property

Model. These show the Liberal paradigm (i), Stewardship (ii) and Progressive

Property (iii) in three columns with the results (defined according to the key at the

bottom of Table 6.3) expressed as being either full (shaded blue) or limited

(shaded pink), which should be interpreted as the rights being either the full rights

envisaged by Honoré or limited but not quantifiable (as this research is using

qualitative rather than quantitative methods).1575 The second phase sees the

insertion of the new Sustainability Restriction and records the impact this has on

the three theories (as applied to the Incidents of Ownership plus the Sustainability

Restriction) shown in columns (iv) – (vi) (labelled Liberal paradigm, Stewardship

and Progressive Property incorporating the Sustainability Restriction). The far right

column shows the Most Effective Model comprising elements of Stewardship and

Progressive Property, together with the Sustainability Restriction to form the new

Land Model (below at 6.3.12).

The comparison raises interesting and unanticipated results. First, it is evident that

there is much less separating the three theories than had been expected from such

an apparently diverse perspective in the literature: the Liberal paradigm seemingly

supporting the exclusionist perspective,1576 Stewardship being a duty to care for the

land,1577 and Progressive Property a social perspective.1578 When looking at the

results, it is apparent that the only theory significantly altered by the insertion of the

Sustainability Restriction is the Liberal paradigm (iv). Whilst there is little separating

Progressive Property from Stewardship, its anthropocentric approach renders it

less appealing in the context of a strong sustainability approach whilst the land-

based ethics of Stewardship make it more aligned to the aims of this research.

Second, regardless of an ecocentric or anthropocentric approach, in terms of the

rights of the landholder both Stewardship and Progressive Property would have the

same effect with the inclusion of the new Sustainability Restriction, and virtually the

1575 The research not seeking to produce a numerical figure but this could be developed at a later stage.1576 See 3.2.1577 See 3.3.1578 See 3.4.

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same in terms of duties. Therefore, the most effective model would be a

synthesis of Stewardship and Progressive Property. Third, the most interesting

result (discussed further at 6.3.10) is that the Sustainability Restriction has a

significantly greater impact on the property model (shown in respect of all three

theories at Table 6.3) than tweaking any of the three models.

The ideal scenario is the new Land Model. However, it should be noted that

implementing the Sustainability Restriction alone could arguably bring about

significant change to the property model over time, in much the same way that the

liberal paradigm has evolved from Blackstone’s absolutism to the current paradigm

towards something that may well result in a model that either is substantially like or

actually is the Land Model.1579

As anticipated, the changes are more apparent in the limitations on the landowner.

This is entirely consistent with the approach of this research; a strong sustainability

approach based on the proposition that the way forward is a Velvet Property

Revolution1580 – a slow, ground up change in part through social adaptation and

humanity’s acceptance of change, supported by legislation and an incentive

scheme.1581

Chapter 2 addressed the use of Honoré’s Incidents of Ownership1582 existing within

the liberal model of private property.1583 The next section will look at each of

Honoré’s incidents, either individually or in groups, as applied to each of the three

theories, and will detail the basis for each of the results. Honoré’s incidents have

been sub-divided here into the eleven incidents,1584 with the right to capital split into

two sub-sections discussed at 6.3.3 and reflected in Table 6.3.

6.3.1 The Right to Exclusive Control

This section will consider whether each of the three theories demonstrates a full or

a limited right to exclude, which are then reflected at Table 6.3. The right to

possess, to exclusive physical control of the thing owned, the right to exclude all

1579 See 6.6.8.1580 See 1.4.1581 See 6.7.1582 ibid.1583 Clarke and Kohler (n103) 193. 1584 ibid 203.

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others1585 is often considered to be the most fundamental in the classic liberal

model1586 – ‘the bedrock of English land law’.1587 Beginning with the Liberal

Paradigm (i), it is shown that a landowner (within this theory) has limited rights to

exclusive possession (shaded pink). This is perhaps not the traditional perspective

of the Liberal paradigm but this research is comparing the current Liberal paradigm

that (as it has been argued at 6.2.1 and 3.2) has been diluted (albeit to a limited

Table 6.3 Formulating the New Land Model 1588

extent) by common law and statute. Additional support for this argument comes

from Honoré, who clearly references the boundaries of exclusive control, as

1585 Honoré (n164) 166.1586 Blackstone (n245) Book 2, ch 2 synonymous with the, ‘sole and despotic dominium’; Lucy and Mitchell (n43) 584; Waring (n290).1587 Hunter v Canary Wharf Ltd [1997] 2 WLR 684 [706B] Lord Hoffmann.1588 Created as a product of this research.

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including those that have a right to enter one’s land1589 but is not willing to go so far

as to accept an open licence.1590 However, whilst this appears seemingly at odds

with the idea that the right to exclude is the primary tenet of the Liberal paradigm,

giving the owner the absolute control over his or her assets,1591 this paradigm is

now the product of several centuries of common law and statutory intervention.

The Liberal paradigm derives from Locke’s justification of appropriation expressed

as the right to ‘inclose’ land, one of the key features in On Property;1592 Locke

clearly states that, ‘he by his labour does, as it were, enclose it from the

common’.1593 This is clearly supported by Blackstone’s, ‘sole and despotic

dominion’1594 (written 76 years later) and the comment that private property is of

such importance that it should not be violated even in the interest of the

community.1595 However, Blackstone acknowledged that this absolute right was

tempered by (the then) English Law as argued above, ‘The third absolute right,

inherent in every Englishman, is that of property: which consists in the free use,

enjoyment, and disposal of all his acquisitions, without any control or diminution,

save only by the laws of the land’.1596 It is clear that the restrictions Blackstone

envisaged in 1765 were considerably less onerous than those of today1597 (such as

the right to roam under the Countryside and Rights of Way Act 20001598) but this is

an acknowledgment that, for him, there were some restrictions and accordingly

limited rights (shaded pink) are shown at Table 6.3. However, whilst the right to

exclude remains dominant, there is a reduced likelihood of the liberal paradigm

evolving and hence necessitating the addition of the Sustainability Restriction.

It is argued that within Stewardship a landowner will have limited rights to exclude

(shaded pink). As a concept, Stewardship (ii) has been shown to be vague and

unstructured,1599 yet the justification for accepting a limited right to exclude is

derived from the strong ethics within the theory. The ethical connection such as

Leopold’s Land Ethic would be contradicted were the owner of the land to have full

and unrestricted rights because (within the theory) the owner is bound by a duty to

1589 Honoré (n164) 166.1590 Honoré (n164) 166.1591 Rose, ‘Canons of Property Talk’ (n583) 604.1592 Locke (n291) s33.1593 ibid s32.1594 Blackstone (n245) Book 2, Ch 1, 2.1595 ibid Book 1, Ch1, 139. 1596 ibid Book 1, Ch1, 138. 1597 For example Civil Aviation Act 1982.1598 Countryside and Rights of Way Act 2000, s1.1599 See 3.3.

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care for the land.1600 This categorisation of the right to exclude as limited is further

supported by Lange and Shepheard’s statement that the steward has, ‘limited

rights to exclude, control and alienate natural resources’.1601

In looking at Progressive Property (iii), there is insufficient clarity as to what the

rights of the landowner should be, whether the landowner will have the benefit of

full exclusionary rights, as discussed above.1602 It has been argued (at 3.4.5) that

there are several interpretations as to what these rights could be. Whilst it is

acknowledged that this theory is a work in progress and not yet fully formed, a

blank section would offer nothing to help in the way of comparison. One option

would be to assume that they are the full exclusionary rights evident in the US

today.1603 However, it is argued that limited rights will be included (shaded pink) at

Table 6.3 on the grounds that the right of exclusion appears to be foundational for

the Progressives, connected to the virtue ethics and a desire to push back against

these constraints to achieve social parity. This is supported by the literature

critiquing the current paradigm;1604 the desire of the Progressives’ to move away

from the economic analysis approach in the current US liberal paradigm; and the

Progressives’ acknowledgment that the current liberal exclusionary model is

subject to encroachments, albeit sporadically and implicitly.1605Whilst the

Progressives do not specifically address the rights of the owners, their position is

nuanced and it is argued that the rights of exclusion are, for them, limited by their

ethical views, that property rights are contingent on the social obligations within the

theory. There is additional support for including limited rights agiven that property

rights are subject to common law and statutory constraints in the US,1606 albeit less

visible than in Britain.1607

6.3.2 The Right to Use, Manage and to Income

1600 Leopold (n1) 201-18; Karp (n20); Lucy and Mitchell (n43) 584; Barritt (n86) 5-6. 1601 Lange and Shepheard (n119) 216.1602 See 3.4.4.1603 See text to n858.1604 Alexander, Peñalver, Singer and Underkuffler (n44) 743; Peñalver (n835) 822.1605 Alexander (n454) 748.1606 ibid 747.1607 The right to exclude others [is] one of the most essential sticks in the bundle of rights’ Kaiser Aetna v United States 444 US 164 (1979) [176] restated in Lucas (n856) 1044; Dolan (n857) [384].

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This section will analyse Honoré’s next three rights:1608 the right to use, which is the

right to personal enjoyment and use of the thing (which as Honoré points out, can

be interpreted as distinct from the right to manage and the right to the income);1609

the right to manage which is the right to decide how and by whom a thing shall be

used; and the right to the income which is the right to the benefits derived from

foregoing personal use of a thing and allowing others to use it.1610 Interpreting the

current Liberal paradigm (i) it is argued that the right to use does contain common

law and statutory limits as to how a landowner may use his/her land for their

personal use.1611 Therefore, this incident will be included showing the owner as

having limited rights (shaded pink). It is argued that the right to manage is a full

right within the current liberal paradigm as this right is described as a ‘cluster of

powers’1612 and frequently takes the form of a contractual relationship1613 where

there is no restriction on one’s choice to enter into a contractual relationship in

respect of land, other than those restrictions within the contractual relationship

itself,1614 and a tax liability on the income or profit. Therefore, this incident will be

included showing the owner as having full rights (shaded blue). The right to the

income is a financial aspect of ownership and addresses the financial benefit

received from the land when not in use by the owner. The same argument as with

the right to manage above can be made, as there are no actual constraints on an

owner choosing to rent his land to another for profit, this is a personal choice. The

constraints are on the contractual relationship that must be complied with but

pertain to the contractual relationship and not the property relationship; accordingly

this incident will be included showing the owner as having full rights (shaded blue).

Within Stewardship (ii), the rights of the steward are typically poorly defined.1615

First, in considering the right to use, this is a difficult argument as it hangs on the

individual and the understanding of the nature of the duty. Lucy and Mitchell view

Stewardship as, ‘land holding subject to responsibilities of careful use’, but there is 1608 Honoré (n164) 168 because these three incidents overlap. 1609 ibid 168.1610 ibid 168-69.1611 For example Town and Country Planning Act 1990; Wildlife and the Countryside Act 1981; Countryside and Rights of Way Act 2000; Environmental Protection Act 1990; Climate Change Act 20081612 Honoré (n164) 168.1613 ibid 169.1614 For example the Landlord and Tenant Act 1985,1986 and 1987; Housing Act 2004; from 1 April 2018 all new or renewing private sector rental properties must have an Energy Performance Certificate rating of E or above; check the tenant has a right to rent.1615 See 3.3.2.

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nothing in the literature to indicate that owing a duty of care to the land would

impede the ability to personal enjoyment of the land.1616 It is argued that this would

depend entirely on how the steward, as the landowner, viewed the extent to which

this duty impacted their personal right to use the land. The voluntary acceptance of

the duty of care need not necessarily impact a steward’s own personal use which

reflects the true nature of the ethics of Stewardship but is admittedly a narrow

interpretation and distinct from a general right to use. The essence of the theory

would suggest that there should be full rights, however it is argued that

Stewardship could sit in addition to the Liberal paradigm and (as outlined above)

that there are common law and statutory restrictions on the right of use.

Accordingly, this is shown at Table 6.3 (shaded pink) with limited rights.

In considering the right to manage it is argued that the right to decide how and by

whom a thing shall be used would be subject to restrictions in the form of the duty

of care to the land evident within Stewardship.1617 Lange and Shepheard support

this by stating that the steward has, ‘limited rights to control and alienate natural

resources’1618 so this will be reflected in Table 6.3 shown as limited rights (shaded

pink). The right to the income is similarly shown as subject to limited rights (shaded

pink) despite suggestions that the steward will have rights from Karp1619 and

Hunter,1620 which are expressed in general terms because a steward’s ability to

allow others to use the land will always be subject to his/her duty of care to the

land. This point is further supported by Lucy and Mitchell.1621

There is nothing within the literature on Progressive Property (iii) (discussed at

3.4.4) that specifically addresses the right to use, the right to manage and the right

to the income but it is argued that the theory implicitly supports a limited right

(shaded pink at Table 6.3) based on three factors. First, the Statement of

Progressive Property1622 which clearly states that one should act with an

awareness (in relation to property) of future generations and environmental

integrity,1623 indicating that the Progressives intend there to be some form of

1616 Lucy and Mitchell (n43) 584.1617 See 3.3.1618 Lange and Shepheard (n119) 216.1619 See 3.3.3.1620 ibid.1621 Lucy and Mitchell (n43) 584.1622 Alexander, Peñalver, Singer and Underkuffler (n44).1623 ibid.

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restriction to the full rights. Second, the strong moral tone – the virtue ethics1624 –

supporting the theory in the literature where consideration is given to the

relationship between humanity and the land.1625 Third, the Progressives’ pushback

against full exclusionary rights; the US liberal model1626 provides additional support

for the inclusion of some restriction on the full rights.

6.3.3 The Right to Capital

Honoré’s next incident is the right to capital, which is defined as, ‘the power to

alienate the thing and the liberty to consume, waste or destroy the whole or part of

it’.1627 This section has been separated into two parts as it is argued that alienation,

(expressed as a right) and the ability to consume or waste (expressed as a liberty)

are different facets of this incident, and separating the two affords better analysis.

Honoré perhaps infers this by stating that alienation is of more importance1628

based on a financial perspective. Alienation is expressed as being the power to

make a valid disposition (of the land) such as property held in trust and the power

to transfer land, which often arise at the same time.1629 There is nothing evident

within the Liberal paradigm that restricts one’s ability to alienate his/her land and,

as argued above (at 6.3.2), whilst there are constraints on the contractual

relationship and tax liabilities, there is no direct impediment within the Liberal

paradigm; accordingly this incident will contain full rights (shaded blue) at Table

6.3.

This issue is not specifically addressed within Stewardship (ii) save to the small

reference from Lange and Shepheard stating that a steward will have limited rights

to alienate.1630 Accordingly, in response, this incident will be shown as limited rights

(shaded pink) at Table 6.3. Similarly, the right of alienation is not specifically

addressed within Progressive Property (iii) theory, however it will be assumed that

the right of alienation will be full (shaded blue at Table 6.3) supported by the 1624 See 3.4.3.1625 Peñalver (n835).1626 Alexander and Peñalver (n164) 2.1627 Honoré (n164) 170.1628 ibid 170.1629 ibid 170.1630 Lange and Shepheard (n119) 216.

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emphasis on social equity wealth distribution1631 within this theory. If landowners

are not restricted as to alienation they would be able to sell or mortgage their land

potentially to allow for increased mobility. However, this means that significant (in

terms of size) landholdings could remain in the hands of the few, which would

severely inhibit the social equity that the Progressives advocate. In response, the

right to capital will be shown as limited (shaded pink) at Table 6.3.

Looking at the second element, the liberty to consume, waste or destroy the whole

or part, it is argued that this is open to interpretation. Honoré states that people do

not generally, ‘wilfully destroy permanent assets’1632 and sees this aspect as being

of less importance to alienation. However, there are several disparate points to

make in relation to all three elements. First, it is argued that consumption of the

land, not fully explained by Honoré, could be taken to mean economic consumption

of goods, here the land, which is probably intended to include acquisition of the

land. Waste however is an entirely different concept; the idea of laying waste has

been discussed above (at 2.3) as being potentially beneficial to the land but there

are also economic land management implications. Total destruction of the land –

unless perhaps in the extremes of war – is difficult to envisage having a practical

application. All three have a clear economic basis, it is the economic quantification

of how the land is or can be used.

It is argued that the incident, to consume, waste or destroy, will contain full rights

(shaded blue) at Table 6.3 in the Liberal paradigm theory (i) with the justification

being largely economic. Looking back to Blackstone, whilst he does not directly

state that land is an asset in terms of modern economic analysis, there are

references1633 and the correlation of land with money and power is implicit1634 in the

text. Further, Locke clearly states, ‘Nothing was made by God for man to spoil or

destroy’,1635 humanity is prohibited from destroying the land. Both for Locke1636 and

in today’s world,1637 the land was (and is) very much a resource, an asset with an

1631 Singer, ‘Original Acquisition of Property’ (n902) 769; 776-78.1632 ibid.1633 Blackstone (n245) Book 1, ch XV, 244; 302; 444.1634 Only males over the age of 21 who owned property were entitled to vote until the Reform Act 1918.1635 Locke (n291) s31. 1636 Macpherson, The Political Theory of Possessive Individualism (n577) 207.1637 Lawrence Yun, 'Why Homeownership Matters' Forbes (12 August 2016) <www.forbes.com/sites/lawrenceyun/2016/08/12/why-homeownership-matters/#290008e7480f> accessed 29 December 2017; Office for National Statistics, A Century of Home Ownership and Renting in England and Wales (full story)

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economic value and the economic context must accordingly be considered. Waste

resulting in a dimunition of the capital value of the land with no financial

recompense would be viewed distinctly from what would be considered an

economically rational use of the land, such as fracking. Whilst there is no economic

merit (from the perspective of the Liberal paradigm) in diminishing the value of the

asset, this would be considered as a full right to consume, waste, modify or destroy

should the landowner choose, subject to the statutory and common law

restrictions. This is a fundamental issue within the Liberal paradigm, that the ability

to profit can be given priority over the needs of the land. Within Stewardship there

is one clear element evident in the literature that is the duty to care for the land.1638

There is a vague sense that a steward may have some rights1639 but there is no

guidance within academic literature on a steward’s ability to consume, waste or

destroy land. However, it is argued that the overriding duty of care to the land

would require a steward, as landowner, to consider the needs of the land, in priority

to economic interests. Accordingly, this will be shown as limited rights (shaded

pink). As stated, Progressive Property has not yet been fully formed and these

issues have not been raised within this theory so some assumptions will need to be

made. There is a clear emphasis on virtue ethics and on social equity, which would

place a limit on human behaviour so it is suggested that the Progressives would

view the destruction and waste of the land as being socially irresponsible, as

illustrated by Alexander with reference to the beach access case law.1640 This is

therefore reflected by the selection of limited rights (shaded pink) at Table 6.3.

6.3.4 The Right to Security

<http://webarchive.nationalarchives.gov.uk/20160107120359/http://www.ons.gov.uk/ons/rel/census/2011-census-analysis/a-century-of-home-ownership-and-renting-in-england-and-wales/short-story-on-housing.html> (archived 2016).1638 Karp (n20); Lucy and Mitchell (n43); Roach, Hollis, McLaren Bavington (n684); Howe (n401), Barritt (n86).1639 Lange and Shepheard (n119) 216; Karp (n20) 738; Hunter (n745) 356.1640 Alexander (n454) 801-02. Historically public access to beaches was quite limited to only the land between the mean high and low tides being the wet-sand areas and only to fish. See also ibid 802 fn 220; Matthews (n967) Alexander cites examples of this being extended to include recreation; Raleigh Avenue Beach Association v Atlantis Beach Club (NJ 2005) 879 A2d 112 where the public is entitled to access the dry sand area regardless of who the owner is; and references Rose, 'The Comedy of the Commons’ (n260) and suggests that a beach could be substituted for a park, extending the concept.

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The right to security1641 is the right to remain as the owner (of land) if solvent and

not have your land expropriated by the state.1642 Honoré envisaged the right of

expropriation being exercised only for certain specific and limited purposes as a

general power would not be consistent with ownership as a concept,1643 as a

general power of expropriation subject to payment of compensation would be, ‘fatal

to the institution of ownership’.1644 This is particularly pertinent for the Liberal

paradigm because whilst Locke is providing a justificatory theory for appropriation,

part of his justification in writing On Property was to address expropriation by the

state or monarch, a genuine concern at the time1645 as the previous centuries had

born witness to numerous incidents of the monarchy and aristocracy grabbing

land.1646 Accordingly, it is argued that Locke would have anticipated the right of

security being a full, unhindered right. Despite not explicitly stating this in On

Property, in a later chapter Of the Extent of the Legislative Power1647 he is very

clear in that, ‘The supreme power cannot take from any man any part of his

property without his own consent’.1648 Locke feared appropriation of property1649 and

believed that the government was responsible for its preservation;1650 the sole

reason man enters society is so that his property benefits from protection by the

state. Locke was looking towards a more constitutional monarchy that would

protect life, liberty and estate1651 which can be contrasted with Winstanley’s view

that, ‘none ought to be Lords or Landlords over another’1652 but that it should be

held as a common treasury, as Clarke and Malcolm argue in relation to water.1653

There is a clear economic perspective relating to the incident of security today but

1641 Honoré (n164) 169-70.1642 ibid 171.1643 ibid 171.1644 ibid 171.1645 See 3.2.1. 1646 The Dissolution of the Monasteries 1536 -1541, between 1604 and 1914 over 5,200 Enclosure Bills were enacted by Parliament enclosing common land and open fields which related to just over a fifth of the total area of England, amounting to some 6.8 million acres <www.parliament.uk/about/living-heritage/transformingsociety/towncountry/landscape/overview/enclosingland/> accessed 31 March 2017. See also Cahill (n101) 20-8.1647 Locke (n291) s138.1648 ibid s138.1649 Waldron, The Right to Private Property (n125) 162.1650 Locke (n291) s138.1651 Held (n602) 20-21.1652 Gerrard Winstanley, A Letter to Lord Fairfax in A Common Treasury (first published 1648, Aporia Press 2011) 51. See also Malcolm and Clarke (n286) 202.1653 Clarke and Malcolm (n119) 121.

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the challenge to this lies in the form of a Compulsory Purchase Order (‘CPO’)1654

which may only be exercised by the Local Authority in the public interest,

consistent with Honoré’s perspective that something like a CPO can be exercised

in certain specific purposes;1655 this provides support for the inclusion at Table 6.3

as a full right (shaded blue).

In Stewardship (ii) there is nothing that addresses whether a landowner may or

may not have a right to security and, to-date, no one has fully outlined the contours

of the theory but instead focussed on the duty aspect. As mentioned above (at

3.3), there are three distinct arguments how to implement Stewardship: first, that

the relationship might be mapped onto the existing proprietary relationship;

second, by replacing private property with public, common property or a new

paradigm; and finally, by replacing the current paradigm with pure stewardship.1656

Therefore, it is argued that a landowner will have a limited right to security (shaded

pink at Table 6.3), consistent with the idea that this paradigm could sit in addition to

the current liberal paradigm. This is a direct reflection of the approach to use

private property in land as the vehicle for change, reflecting humanity’s resistance

to change.1657 To illustrate, on this basis, the land will similarly be subject to

immunity from expropriation subject to certain specific and limited purposes. Yet,

within the paradigm is a strong duty of care to the land and it is argued that this

duty would exist in priority to a right to expropriate in the public interest, if it

impacted the land. A hypothetical argument can be made – albeit beyond the

scope of the research – that replacing the liberal paradigm (which some believe

should be replaced by Stewardship1658) would leave this much more open to

interpretation, as a common law land model could look entirely different to the

current paradigm. Arguably, this point could have equal application to all of

Honoré’s Incidents however this thesis proposes a Velvet Property Revolution1659 –

the idea of the current paradigm being slowly changed from the ground up – so

replacing it in one swift movement would be inconsistent with the broader aim and

strategy. 1654 Planning and Compulsory Purchase Act 2004; Housing and Planning Act 2016; Neighbourhood Planning Act 2017.1655 There are proposals for reform of the process www.parliament.co.uk, Legislative Reforms (3) Compulsory Purchase Orders (85-90) <https://publications.parliament.uk/pa/cm201719/cmselect/cmcomloc/766/76607.htm> accessed 22 November 2019.1656 Lange and Shepheard (n705) 217. See also Chapter 2. 1657 See 4.5.1658 Lucy and Mitchell (n43).1659 See 1.4.

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The right to security within Progressive Property falls within the ‘takings’ body of

case law (discussed at 3.4.2) where it can be seen that (as Honoré suggests) if

land is expropriated, compensation must be paid.1660 In the US, this falls under the

Fifth Amendment, ‘nor shall private property be taken for public use, without

compensation’1661 and is therefore shown at Table 6.3 as having full rights to

security (shaded blue) subject to the takings within the Fifth Amendment to reflect

Honoré’s certain, specific and limited purposes. In further support, Alexander

argues that in the US private owners are required to sacrifice their ownership rights

for the community1662 and, additionally, by some of the US Takings case law such

as Lucas,1663 which saw a man ‘sacrifice’ his right to benefit for making a financial

gain for the benefit of the eroding coastline. In this case, the plaintiff was

compensated, in accordance with the Fifth Amendment.1664

6.3.5 The Power of Transmissibility

The power of transmissibility – connecting to Gray and Gray’s definition of land as

something temporal1665 through the device of the doctrine of estates1666 – means

that land can be passed to somebody else after your death,1667 and that it will not

end (a fee simple but not a term of years). In the Liberal paradigm (i), there is no

restriction as to whom land is sold or given to, save for payment of the relevant

taxes1668 and the requirement that any person(s) registering title to land must be

over 181669 (but this is a registration requirement and land can be held in trust for a

minor). Historically, Locke placed great value on the accumulation of wealth1670 and

the only restriction for him would have been gender based.1671 Accordingly, as

there is nothing to impede a full right to leave all your assets on death to a person

of your choice and for that fee simple to continue to exist it will be shown at Table

6.3 (shaded blue) with full rights.

1660 Honoré (n164) 171.1661 See text to n858.1662 Alexander (n454) 774-75.1663 Lucas (n856).1664 See 3.4.2.1665 See text to n114.1666 LPA, s1(1)(a).1667 Honoré (n164) 169-70.1668 Inheritance Tax Act 19841669 LPA, s34(2).1670 Macpherson, The Political Theory of Possessive Individualism (n577) 207.1671 Married Women’s Property Act 1882.

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It has been argued above (at 6.3.4) that the Stewardship paradigm could be added

to the current paradigm yet there is nothing within the literature that addresses

whether a landowner may or may not have a right to pass land to another on

death. Furthermore, there is nothing within the ethics of the concept that could

implicitly indicate any restriction on transmissibility, or the continued existence of

the fee simple. In fact, the ability to leave land to the person(s) of your choice

would arguably better ensure a like-minded person could be selected to maintain a

continued and consistent obligation to care for the land. Therefore, as argued at

6.3.4, the landowner will have the full power of transmissibility (shaded blue at

Table 6.3).

Progressive Property (iii) is silent as to whether a landowner may or may not have

a right to pass land to another on death. There is nothing within the ethics of the

concept that could implicitly indicate any restriction on transmissibility and arguably

the emphasis on social equity1672 would support the ability to pass title as one

chooses. However, the emphasis on social equity within the concept creates an

equally compelling argument that the power of transmissibility should be limited to

restrict large landowners from having full rights to pass on the land to whom they

choose, specifically keeping large landholdings in the hands of the few. This

potentially means that more people would have the ability to own land. To reflect

this proposition, this has been shown at Table 6.3 as having a limited right for the

landowner (shaded pink).

6.3.6 The Incidence of Absence of Term

Clarke and Kohler provide an illustration of this point whereby if a book is lent to a

friend, the friend will acquire the right to possess and use the book for a limited

period despite not becoming the book’s owner.1673 This incident limiting the

landholder is the absence of term (being the indeterminate length of one’s

ownership rights) in that ownership is not for a term of years, but forever.1674

Honoré expresses this incident as, ‘indeterminable interests are really

determinable’1675 essentially acknowledging humanity’s mortality in that the interest

will continue to exist but in different ownership after death. This point is not 1672 Singer, ‘Original Acquisition of Property’ (n902) 769; 776-78.1673 Clarke and Kohler (n103) 205.1674 Honoré (n164) 173.1675 ibid 173.

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addressed in any of the literaturewithin Stewardship and Progressive Property;

Penner evades the point1676 and whilst there is an argument for simply excluding

this incident, all three theories acknowledge humanity’s connection to the land

(albeit to lesser or greater extent)1677 and seemingly have no issue with the interest

continuing after one owner’s death.1678 Accordingly, the incident will be included as

being full (shaded blue) in all three theories (i) – (iii). This incident acknowledges

one of humanity’s frailties – that we all have a limited life expectancy – but that the

land will continue.

6.3.7 Liability to Execution

The liability to execution is the liability to have the land taken away in repayment of

a debt (either a judgement debt or on insolvency)1679 and, as Honoré points out, it is

difficult to envisage society today continuing without this, particularly in the

residential mortgage context.1680 In looking at literature on the three theories there

is, again, a clear absence of explicit statements. In considering private property

within the liberal paradigm, homeownership in the 20th Century became more

prevalent1681 and arguably this liability provides an additional security element for

lenders knowing that the owner’s interest (often a home) can be taken away on

non-payment of a judgement debt or on insolvency. Therefore, it will be shown as

being a full right (shaded blue at Table 6.3).

In looking at Stewardship (ii), the full right will be included (shaded blue) based on

the absence of anything specifically stated in Stewardship literature on this point. It

is argued that this paradigm could sit in addition to the current liberal paradigm,1682

1676 Penner, 'The Bundle of Rights Picture’ (n352) 761.1677 Locke (n291) Locke’s imagery of man toiling the soil; Leopold (n1); Graham, Lawscape (n262).1678 Honoré (n164) 173-74.1679 ibid 175.1680 ‘The mortgagee may go into possession before the ink is dry on the mortgage’, Four-Maids Ltd v Dudley Marshall (Properties) Ltd [1957] Ch 317.1681 Office for National Statistics, A Century of Home Ownership and Renting in England and Wales (full story) <http://webarchive.nationalarchives.gov.uk/20160107120359/http://www.ons.gov.uk/ons/rel/census/2011-census-analysis/a-century-of-home-ownership-and-renting-in-england-and-wales/short-story-on-housing.html> (archived 2016).1682 See 6.3.1.

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so in the absence of any restriction to the current Liberal paradigm the ability to

lose a property interest in repayment for a debt will continue, as there is nothing to

prevent it.

Progressive Property (iii) provides more of a challenge but it is argued that the right

should be limited in respect of this incident (shaded pink at Table 6.3). Similar to

Stewardship, there is nothing explicitly written on a right to execution within

Progressive Property literature however, to conclude that this right should be full

would be to deny the emphasis on human flourishing to promote social utility,

economic efficiency1683 and wealth distribution within this theory.1684 It is difficult to

imagine human flourishing – the value, social and community meaning of homes –

sitting well with an absolute right to execution but a better way to address this issue

may be to draw some parallels with the current position in Britain where more

emphasis is placed on keeping mortgagees in their homes and restructuring debt

in preference to eviction.1685 However, this should be balanced with the financial

advantages of using homes as security for loans. Yet this is not a UK-based

theory1686 – it relies on US case law – and the property landscape is rather different

in the US to Britain; we have a serious shortfall of housing stock whereas the US

has legacy towns, with an abundance of housing stock which cannot be sold and

from which people are simply walking away.1687 However, this must be balanced

with the exclusionist, commodification of property perspectives evidenced from US

property theory literature1688 emphasising property as an asset being paramount.

Accordingly, the incident of liability to execution will be shown as being limited

(shaded pink in Table 6.3).

6.3.8 Incident of Residuarity

1683 Alexander (n454) 758.1684 Singer 'Original Acquisition of Property’ (n902).1685 Administration of Justice Act 1970; Ministry of Justice, Pre-Action Protocol for Possession Claims based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property <www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_mha> accessed 5 March 2017.1686 See 3.4.1687 Shelley Cavalieri, ‘Linchpin Approaches to Salvaging Neighborhoods in The Legacy Cities of The Midwest’ (2017) 92 Chicago-Kent L Rev 475.1688 See 3.4.

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Honoré’s category of ownership and lesser interests does not address split

ownership1689 where there can be one or more people considered to be an ‘owner’,

and to show that the owner has a residuary right in the land.1690 To illustrate, A

holds a fee simple1691 of Whiteacre and B holds the benefit of a legal easement1692

over Whiteacre, where B’s interest restricts A’s rights but does not challenge A’s

ownership.1693 It is argued that there are two points to address. First, the holder of a

lesser interest does not qualify as an owner and here it is argued that there is

practical support through the registration system in Britain. The device of a fee

simple and a term of years – a legal estate – the nearest one can get to

ownership,1694 supports the ability to exclude all others (subject to common law and

statutory constraints), whereas lesser interests such as easements (legal or

equitable) are expressed as an interest1695 and do not yield the benefit of a right to

exclude. This is supported by Honoré who states that it is not necessary for every

individual Incident to be present to reflect ownership,1696 meaning that exclusive

possession is one of these rights not needed for the standard Incidents to apply to

holders of lesser interest.1697 The second point is whether the owner has a

residuary right in the land. This too can be viewed in practical terms; when a lease

expires the tenant yields up and the interest ceases to exist, yet this is different for

easements and covenants as they remain on the registered title.1698 Here, the point

is that the owner retains the residuary right, the greater interest in the land, despite

the existence of a lesser interest. Finally, it is argued that the right to residuarity is

a default position, for those who hold rights that are not alienated by the owner and

are needed in any paradigm, as supported by Honoré.1699

Considering the Liberal paradigm (i) is based on the argument above it is clear that

first, the holder of lesser rights such as easements would not qualify as an owner;

and second, the owner within the Liberal paradigm will clearly retain the greater

interest in land, the residuary right, so this will be shown as full (shaded blue) at

1689 Honoré (n164) 176.1690 ibid 177.1691 LPA, s1(1)(a).1692 ibid s1(2)(a).1693 Honoré (n164) 176.1694 LPA, s1(2)(b).1695 ibid ss1(2)(c); 1(3).1696 ibid 161-79.1697 Honoré (n164) 176.1698 Unless removed by agreement or through formal application to HM Land Registry.1699 Honoré (n164) 177-78.

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Table 6.3. A similar argument can be made in respect of Stewardship based on the

assumption that this paradigm could sit in addition to the current liberal

paradigm,1700 in which case the restriction to the current liberal model would equally

apply here and this incident will again be full (shaded blue) at Table 6.3. It is

argued that the right should also be full in respect of this incident for Progressive

Property (iii) (and therefore shaded blue at Table 6.3). There is nothing explicitly

written on a right to residuarity within the literature by way of support, and a

comparison of registration systems is not helpful here as this is managed on a

state by state basis, rather than nationally as in Britain. However, it is argued that

the position would be broadly the same as the Liberal paradigm and for

Stewardship, in that a default position is needed.

6.3.9 The Duty to Prevent Harm

The final incident is the duty to prevent harm,1701 effectively pointing out that

ownership does not give you complete liberty with regard to your land. It requires

that you, ‘may not use it (the land) to harm others’ and ‘must prevent others using

the thing (the land) to harm others’.1702 However, Honoré’s example bears less of a

tangible connection to the land, the only example he provides is, ‘I may use my car

… but not … to demolish his gate, or even go on his land’.1703 It has been argued

above (at 2.3) that the duty to prevent harm is different in essence to the

Sustainability Restriction, which seeks to specifically protect biodiversity loss, tree

cover loss and change in land use for several reasons. Honoré’s Incident is

expressed as being a general duty and (as argued above in relation to exclusive

possession) a general duty is difficult to quantify with a subsequent negative

impact on judicial analysis. It is difficult looking at Honoré’s example to see a clear

connectivity between not using a car to cause harm with access to land. A general

duty is less tangible and, as such, less capable of being clearly understood.

Applying this incident to the three theories in turn, the Liberal Paradigm (i) will be

shown as having a limited duty (shaded pink) as ownership does not give you

complete liberty with regard to your land which is reflected by the common law and

1700 See 6.3.1.1701 Honoré (n164)174 fn 1 reference the change from a prohibition of harmful use to a duty to prevent; Clarke and Kohler (n103) 205.1702 Honoré (n164) 174.1703 ibid 176.

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statutory restrictions, reflecting Honoré’s analysis of ownership within private

property.

Stewardship (ii) is the simplest to categorise, as there is a clear duty to care for the

land1704 and is therefore reflected by a full duty to prevent harm (shaded blue).

A limited duty (shaded pink at Table 6.3) will be included in the test criteria for

Progressive Property (iii) on the grounds that, whilst the Statement of Progressive

Property refers to consideration for the ‘natural environment and non-human

world’,1705 the emphasis within the theory is very much on a duty but one based on

humanity’s needs and interests through the ethics of human flourishing; it is an

anthropocentric theory. This clearly evidences the fundamental distinction between

the anthropocentric approach and that taken in this research of strong

sustainability.

6.3.10 Mapping the Theories

As discussed above,1706 analysis presents the opportunity to attempt to map the

contours of Stewardship and Progressive Property and then to draw comparison

between both against the current Liberal Paradigm.

Much of the literature on both Stewardship (discussed at 3.3) and Progressive

Property (at 3.4) is vague and the theories not yet fully formed, so this is a proposal

to see how these models could look by using the Incidents of Ownership1707 as a

means of delineating the contours of each concept. Stewardship is heavily duty

based with a clear desire to push back against the anthropocentric, commodified

concepts of property. Whilst there is a clear argument that Stewardship could

potentially exist beyond private property, this is beyond the scope of this research,

which is looking at pragmatic solutions from within the existing paradigm.1708 This is

a proposal to evidence whether Stewardship could exist as an ‘add-on’ to private

1704 Leopold (n1) 201-10; Charles E Little (n1704) 738; Barritt (n86) 5-6.1705 Alexander, Peñalver, Singer and Underkuffler (n44) 744.1706 1.1; 1.2.3; 1.2.4; 1.2.7; 2.1; 2.3; 3.1.1707 Honoré (n164).1708 See 1.2.1; 1.4; 2.6.

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property and, if so, how. There are fewer restrictions evident in this model because

(here) Stewardship is intended to sit within the existing private property

paradigm.1709It is argued above that Stewardship (ii) will have limited rights to

possess (exclude others), to use (for personal enjoyment), to manage (how and by

whom the land shall be used), to income (receive benefit from foregoing personal

use), to capital (both to alienate and to consume, waste, modify, or destroy the

land) and to security (immunity from expropriation, subject to limited rights from

state or local authority). In contrast, it will have a full power of transmissibility, a full

incidence of absence of term (acknowledging that the interest will continue to exist

but in different ownership after death), liability to execution (potentially having the

land taken away for repayment of a debt), a full incident of residuarity (the owner’s

residual rights) and a full duty against harmful use.

In contrast, it is argued that the Progressive Property theory (iii) will have a limited

rights to possess (exclude others), to use (personal enjoyment), to manage (how

and by whom the land shall be used), to income (receive benefit from foregoing

personal use), to capital (to consume, waste, modify or destroy), a limited power of

transmissibility, liability to execution (potentially having the land taken away for

repayment of a debt), the incident of residuarity (the owner’s residual rights) and a

limited duty against harmful use. On the other hand, the theory will have a full right

to capital (to alienate), to security (immunity from expropriation), the incidence of

absence of term (acknowledging that the interest will continue to exist but in

different ownership after death). This reflects the emphasis on social equity,

evident in Progressive Property scholarship; an anthropocentric approach.

As would be expected in a comparison between the anthropocentric approach of

Progressive Property and the land-based ethics of Stewardship, the key

differences are with Progressive Property having full rights to alienate and to

security (the more commercial elements) whereas Stewardship has full rights to

use (which is subject to the duty of care within the concept) and a clear full duty to

care for the land. Interestingly, there is less separating Stewardship and

Progressive Property from the Liberal paradigm than might have initially been

expected with the distinctions clearly visually evident at Part 1 of Table 6.3. In

essence, the Liberal paradigm displays a greater level of financial control over the

land through having full rights to manage, income and to capital (both elements)

and only a limited duty against harmful use of the land. The limited duty is a key 1709 Barritt (n86) 5.

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point and one that connects with the argument in support of the Sustainability

Restriction over and above simply extending the duty within the current Liberal

paradigm (discussed at 2.3). It is argued that the current Liberal Paradigm does not

demonstrate a sufficient level of duty to protect the land, as part of the environment

and that the Sustainability Restriction would be a more effective mechanism than

extending the duty within the Liberal paradigm.

6.3.11 Incorporating the Sustainability Restriction

The second phase of the test again uses Honoré’s Incidents of Ownership as

points of comparison but now modified by the inclusion of the Sustainability

Restriction which effectively places a restriction on a landowner from activity that

has a potential negative impact on biodiversity loss, any change in land use and

change in tree cover (subject to a sustainability based biodiversity offsetting

regime). The restriction seeks to limit (but not prohibit) use subject to offsetting (as

outlined at 6.4) and it is inserted into Honoré’s Incidents of Ownership with the

three theories – the Liberal Paradigm, Stewardship and Progressive Property –

then re-compared. This section will show how the final results of establishing how

the most effective model are formed. The results are perhaps not as dramatic as

might have been anticipated in that there is very little now separating the three

theories, with the Liberal paradigm shifting to have limited rights to manage, to

income, to capital (consume, waste, modify or destroy) and the duty against

harmful use. In contrast, there are no changes in the form of Stewardship and the

only change in Progressive Property theory is the duty against harmful use that

becomes a full duty rather than a limited duty. This will be analysed in more detail

below however, it is argued that the most effective could be formed through a

balance of Incidents displayed by predominantly Stewardship and Progressive

Property. Arguably, the most interesting result of this analysis is that whether one

theory is supported over another is of less relevance than the impact that the

Sustainability Restriction has on Honoré’s Incidents.1710

The results are illustrated at Table 6.3 where the second set of three columns (iv-

vi) show the results for the Liberal Paradigm, Stewardship and Progressive

Property. It was argued (at 2.3) that the Sustainability Restriction restricts action

(biodiversity loss, change in land use or loss of tree cover) in much the same way

that a speeding restriction allows you to drive a car, but stops you driving too fast. 1710 See 2.3.

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The Sustainability Restriction will restrict use subject to offsetting which require

positive steps to be taken in response.1711 It can quickly be established that the only

theory significantly altered by the insertion of the Sustainability Restriction is the

Liberal paradigm (iv) which sees the right to manage (how the land is used), the

right to income (to use, occupy and receive benefit) and the right to capital (to

consume, waste, modify or destroy) become restricted by the Sustainability

Restriction (now shaded pink at Table 6.3). However, to reflect the limitation on

these rights the duty to prevent harm (a person’s duty to refrain from using the land

in ways that are harmful to others) has become a full duty in the Liberal paradigm

shown in (iv) (shaded blue at Table 6.3) following the inclusion of the Sustainability

Restriction because it places a restriction on activity that affects biodiversity loss,

change in land use and loss of tree cover (subject to offsetting). In practical terms,

it is argued that the owner of land within the Liberal paradigm would be subject to a

full duty of care towards the land, in the form of change in land use, tree cover loss

and biodiversity loss which is distinct from the general duty envisaged by

Honoré.1712 The Sustainability Restriction could sit within the paradigm, as an

addition, and as a consequence there will be limited rights to manage, income and

capital over the land; the owner of the land will have limited rights of control over

the land but not full control. In terms of implementation, the simplest method would

be through legislation. It has been argued (at 3.2) that the Liberal paradigm has

evolved from absolutism to the current liberal paradigm, in response to judicial

decisions, legislation, social and economic factors. The insertion of the

Sustainability Restriction would apply in a similar evolutionary process that would

change the paradigm to the Land Model or something substantially similar. There

is an additional argument, that the Liberal paradigm with the inclusion of the

Sustainability Restriction (iv) could be considered substantially similar to concept of

adding Stewardship to the existing Liberal paradigm albeit with a clearly delineated

duty. Indicating that it is possible to map Stewardship onto the existing paradigm

as an ‘add-on’.1713

Stewardship is not altered by the insertion of the Sustainability Restriction and

retains the duty to prevent harm as a full duty on the grounds of being the only

theory that contains any restriction as to how the land may be used (derived largely

based on works such as Aldo Leopold who advocates a more ecologically based

1711 See 6.4.1712 Honoré (n164) 174.1713 Barritt (n86) 5.

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approach to the land1714). The addition of the Sustainability Restriction with its

restriction on the amount of tree cover loss, change in land use and biodiversity

loss (subject to offsetting) is entirely consistent with the strong ethics and the duty

to care for the land and accordingly there are no other changes to the theory.

Progressive Property (vi) is largely unaltered by the insertion of the Sustainability

Restriction with the only distinction being that the owner of land would be subject to

a full duty of care towards the land, which is distinct from the general duty

envisaged by Honoré.1715 The Sustainability Restriction would sit in the paradigm

as a restriction on tree cover loss, change in land use and biodiversity loss (subject

to offsetting).

The fundamental conclusion here is that all of the theories are affected by the

insertion of the Sustainability Restriction, which imposes a restriction on the way

land is used. In essence the Sustainability Restriction restricts (but does not

prohibit) land use in a way that increases biodiversity loss, a change in the land

use or tree cover (subject to offsetting) pushing both the Liberal paradigm and

Progressive Property towards the ethos of Stewardship. This gives the net result of

a paradigm substantially similar to Stewardship, albeit with some differences that

reflect the different foundational ethics of these paradigms.

6.3.12 The Land Model

The most effective model shown on the far right of Table 6.3 (vii) is the new Land

Model. It presents several options in that the rights to capital (to alienate), the right

to security and liability to execution could be either full or limited (shaded yellow).

This is not inconsistent with Honoré’s Incidents of Ownership as he recognised that

not all the Incidents necessarily need be present to reflect the classic liberal

paradigm,1716 nor does he view the Incidents in absolutes supporting the argument

that there is more flexibility than might previously have been appreciated. It is

suggested that the Land Model represents the panacea, the best means of

protecting the land, as part of the environment. Based on the comparison, it is

proposed that the Land Model has limited rights of exclusion, to use, to manage, to

income and to capital (to consume, waste, modify or destroy) (shaded pink) subject

to the limits created by the Sustainability Restriction together with legislative and

1714 Leopold (n1).1715 Honoré (n164) 174. 1716 Honoré (n164) 165.

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common law constraints. There would be either a full or a limited right to capital (to

alienate the land) as the ability to alienate land could be a full right or restricted

with no significant impact on the effectiveness of the Land Model provided that the

Sustainability Restriction remain in place. There would be either a full or limited

right to security to reflect the distinction between Stewardship and Progressive

Property (the latter being more anthropocentric and anchored in virtue ethics)

(shaded yellow); however, again there is nothing to suggest that either option

would prohibit the effectiveness of the Sustainability Restriction within the Land

Model.

The full power of transmissibility has been included to reflect the existence of this

power (or the absence of an indication restricting this power) within the three

theories and there is nothing to suggest this would impede the incorporation of the

Sustainability Restriction within the Land Model. The duty to remain from using the

land in a way that is harmful would be a full duty distinct from that envisioned by

Honoré1717 (therefore shaded blue) on the part of the landowner. As argued above

(at 6.3.11), the Sustainability Restriction will sit within the land holding paradigm as

a restriction on tree cover loss, change in land use and biodiversity loss (subject to

offsetting) which will cause the paradigm to evolve over time to the Land Model or

something substantially similar.

This research has taken a strong sustainability approach1718 aiming to protect the land, as part of the environment and to see steps taken to ameliorate existing

damage. The Sustainability Restriction imposes a restriction but not a prohibition –

in much the same way as the driver of a car may drive his/her car but must do so

within speed restrictions – on the landowner in dealing with biodiversity loss,

changes in land use and tree cover loss1719 but it only goes so far. This research

advances a sustainable property paradigm but one that acknowledges that

property sits within a context. To achieve strong sustainability, a connection must

be made with the ethical call for change as being a two-part process: a

fundamental shift in perception to accept that change is needed (acknowledgment)

followed by having the willingness to act accordingly (action).1720 Here, this would

take the form of an acceptance of the need to take action and a willingness to

accept new restrictions on dealing with the land, accepting the Sustainability 1717 ibid 174.1718 See 4.4.1.1719 See 5.6.1720 See 4.4.

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Restriction to move towards the new Land Model or a substantially similar

paradigm. Critically, to achieve strong sustainability, humanity would need to take

further positive steps to ameliorate existing damage. This could in the future be

advanced through the Sustainability Restriction and implemented as discussed at

6.4. To illustrate, the Woodland Trust aims to re-plant to support and supplement

ancient woodland which is the richest land habitat for wildlife and is home to more

threatened species than any other. There is a clear argument for felling the non-

native trees such as conifers that were planted in response to the fear of running

short of timber during WW1 and re-planting with native trees.1721 This additionally

connects to the proposal in this research that if the major landowners (at 2.4)

accepted the Sustainability Restriction there would be a significant proportional

positive impact in terms of landmass alone.

6.4 Proposals

Thus far this research has identified the most effective model to protect land, as part of the environment as being the new Land Model and has proposed that the

best jurisdiction to secure successful implementation in the future would be Wales.

This section will advance two alternative proposals for the implementation of the

Sustainability Restriction to reflect the argument that the voluntary acceptance

(with or without a financial incentive) of placing a restriction on the rate of

biodiversity loss, a change in land use and tree cover loss will bring about a

response to change the landholding paradigm to become either substantially like,

or actually be, the Land Model.1722 Throughout this thesis it has been argued that

change is needed in the form of acknowledgment that humanity must change its

behaviour, followed by action. The first element – acknowledgment – is clearly

evident in literature (outlined at 1.1), supported by environmental psychology (at

4.4.3) and it is argued that this will prompt either a voluntary pro-active decision to

do the right thing or, for those more reluctant to acknowledge or act, it is proposed

that financial incentives will prompt a reactive voluntary choice. However, to be

successful, it is critical to change the perception of sustainability from something

that we feel we ought to do to something we want to do. A positive recent trend can

be observed in various corporate entities where sustainability is increasingly seen

as something both shareholders expect of responsible businesses and as more

1721 Woodland Trust <www.woodlandtrust.org.uk> accesses 1 August 2019. See also 2.5.1722 See 6.3.12.

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fundamental to stand out to higher quality younger generation employees with their

higher degree of social awareness.1723

This research proposes that there are two possible mechanisms for

implementation of the Sustainability Restriction. One would facilitate something

similar to a conservation covenant entered at HM Land Registry1724 (which

encompasses land subject to registration in England and Wales1725) or with an

independent body1726 and the second would be something more akin to a TPO

made by a local planning authority (usually the local council) to protect

specific trees or particular woodland1727 which would be binding on any subsequent

transfer of land.1728

Humanity is over consuming the resources of the planet1729 and the Sustainability

Restriction is intended to restrict, to limit the use to more acceptable levels. This is

intended to reflect the pragmatic position that humanity is unwilling to change

behaviour. There are issues, some of which are beyond the scope of this research

(in particular practical implementation, logistics and finance) but this section will

connect to environmental psychology (at 4.4.3), addressing the key points with

options and potential issues being discussed and justified.

6.4.1 Implementation

There are some practical points that must be addressed relating to the

Sustainability Restriction. Changing the use of land and buildings in England and

Wales1730 is governed by Use Class Orders1731 and planning permission is needed

for some changes of use, for example from a domestic dwelling to a restaurant.1732

1723 Matthew Jenkin, 'Millennials want to work for employers committed to values and ethics' The Guardian (5 May 2015) <www.theguardian.com/sustainable-business/2015/may/05/millennials-employment-employers-values-ethics-jobs?CMP=share_btn_link> accessed 4 January 2017.1724 Conservation Covenants (n73).1725 The researchers area of practice.1726 See 6.5.3.1727 Tree Preservation Regulation (n74); the Planning Act 2008 s192, Localism Act 2011 Pt 6.1728 LRA, s27(2)(a).1729 See 4.5.1730 Town and Country Planning (Use Classes) Order 1987 as amended (Use Classes) (Amendment) (Wales) Order 2016. 1731 Use Classes Orders (n474).1732 Town and Country Planning (Use Classes) Order 1987 as amended

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The Sustainability Restriction is envisaging something different and less related to

the building and planning aspect of land use but it is central to the land and is

particularly pertinent to the major estates where a change in land use such as

draining wetlands, felling large areas of trees or through substances discharged on

the land and into the air1733 could have a significant impact on the way the land is

used. As discussed above,1734 it is not intended for this restriction to act as an

absolute prohibition but to reflect the strong sustainability approach being taken

and will enable use but will place a limit on how much can be consumed by

humanity. Currently, TPOs1735 only restrict what may be done to specified trees and

the Forestry Act 1967 restricts felling trees in certain circumstances but this could

be extended further through the Sustainability Restriction. A restriction on land use

and tree cover loss will have a consequential impact on biodiversity and in addition

to these ancillary benefits the Sustainability Restriction would restrict biodiversity

loss as a distinct category. Admittedly, biodiversity is harder to quantify and in the

research soil degradation is more pertinent.1736

The first proposal is for a form of conservation covenant registered at HM Land

Registry or with an independent body (discussed below at 6.4.3), substantially

similar to those proposed by the Law Commission.1737 This section will outline the

relative advantages and disadvantages. The proposed covenants would be similar

to the conservation covenants in that they are private, voluntary arrangements

made in the public interest, but which continue to be effective even after the land

changes hands.1738 These covenants would take effect as a form of statutory

burden1739 on land as opposed to becoming a legal interest in land,1740 and unlike

existing restrictive freehold covenants they would not have to benefit a dominant

parcel of land or suffer the issues of running the benefit and burden in common law

and equity,1741 or requiring a dominant and servient tenement with an easement.1742

The proposal here is that these new covenants would be entered into voluntarily,

either with or without a financial incentive (discussed below at 6.4.2).

1733 Reid, 'Employing Property Rights for Nature Conservation' (n312) 169. 1734 See 2.2.1; 5.6.1735 Tree Preservation Regulations (n74).1736 See 5.6. 1737 Conservation Covenants (n73)1738 ibid s1.1.1739 ibid.1740 LPA, s1(1).1741 Gray and Gray, Elements of Land Law (n2) 255-304; Martin Dixon, Modern Land Law (11th edn, Routledge 2018) 332-641742 Re Ellenborough Park [1956] 1 Ch 131.

252

The form of the proposed conservation covenant is substantially similar to those

proposed by the Law Commission however two clear distinctions from this

research will be drawn. First, the covenant proposed in this research is a voluntary

agreement but one where a financial incentive will be offered to encourage

engagement and in recognition of humanity’s unwillingness to change. This is in

contrast to the Law Commission, which clearly states that, ‘there is no prospect of

tax incentives being offered’.1743 There are three possible incentives schemes that

could be used and these are discussed below (at 6.4). The second point is the

purpose of the covenant; the Law Commission states that the conservation

covenants will be for, ‘specific purposes and … for the public good’.1744 Admittedly,

the obligations to be contained within the conservation covenants are broad and

include the requirement to preserve, protect, restore or enhance either the land’s

natural environment including flora and fauna, its natural resources or cultural,

historic or built heritage features.1745 This wording has prompted criticism from

consultees including, amongst other things, that this was not specific enough, too

precise, too bound to the land and would not permit the functioning of ecosystem

services.1746 It is argued that the many of the consultees rightly made these

observations in response to their own specific interests that they felt would not be

best served, such as the National Trust who felt that the covenants were too

closely aligned to the land.1747 However, the form of the proposed covenant in this

research is clearly looking to restrict (but not totally prohibit) change in land use,

tree cover loss and biodiversity loss on any land held as private property. Arguably,

this would be easier to implement and there would be less potential for challenge

as to whether a plot of land fell within the broad definition, as it could with the Law

Commission’s proposals. The second aspect of this point is that the proposed

Conservation Covenants are expressed as being made in the ‘public interest’,

whereas the new Sustainability Restriction has no similar limitation. Further, it is

argued that a public interest test is not needed in that in agreeing to accept the

Sustainability Restriction (regardless of whether the public have access to the land)

will lead to a general benefit to humanity, in that the land will be better protected.

Support for this comes from Reid who uses a farmer not using pesticides on his

land, which would be beneficial for neighbouring farm and the species living on the

1743 Conservation Covenants (n73) s2.7. 1744 ibid s3.2.1745 ibid s3.5.1746 ibid s3.6-3.3.13.1747 ibid s3.7.

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land.1748 The public interest test throws up a minefield of issues and accordingly, to

counter this challenge, the covenant proposed would not be expressed or tested

based on public interest as arguably it is more for the best interests of the land, as

part of the environment. Reid suggests that the public interest requirement could

be addressed through the scope of purposes when such a covenant is created,

and critically that there is a need for official approval and arrangement for

enforcing, amending and terminating these covenants and registration.1749 These

are valid points that potentially pave the way for future discourse, and these are

discussed below.

Conservation burdens exist in Scotland1750 but are not widely used.1751 However,

conservation easements, servitudes or agreements are more common in the US1752

and these will be considered here to establish whether any meaningful lessons can

be learned. A US conservation easement is a voluntary, legally binding agreement

between a landowner and a land trust or government agency, where the landowner

donates an easement (to the land trust or public agency) permanently limiting the

use of that land in order to protect its conservation values.1753 These are broadly

similar1754 to the conservation covenants proposed by the Law Commission in

Britain to be made between a landowner and an unconnected beneficiary or

independent holder, which will bind successors in title and permit the owner to

remain in occupation.1755

There are two clear points in relation to the US conservation easements that are

relevant to this research. First, there is flexibility for the donors 1756 in that the

landowner is not totally restricted from using the land. It is argued that the

1748 ibid) s3.2.1749 Reid, 'Conservation Covenants' (n1175) 9.1750 Colin Reid, 'Conservation Covenants' (n1175) 3; Abolition of Feudal Tenure etc (Scotland Act) 2000, ss26-32, Title Conditions (Scotland) Act 2003 ss38-42.1751 ibid 3.1752 Over 40 states permit conservation covenants Julia D Mahoney, 'Perpetual Restrictions on Land and the Problem of the Future' (2001) Public Law and Legal Research Papers Working Paper 01-11<http://papers.ssrn.com/abstract=29153> accessed 1 May 2016, 11. See also Jay J E, 'When Perpetual is Not Forever: The challenge of Changing Conditions, Amendment, and the Termination of Perpetual Easements’ (2012) 30 Harvard Environmental L Rev 1.1753 Internal Revenue Code 1980, s170(h).1754 A full comparative analysis is beyond the scope of this research.1755 Conservation Covenants (n73) s2.82.1756 ‘Government agencies have an important new tool with which to hammer out private agreements with the owners of environmentally sensitive property, affording them an alternative to traditional regulation’ Mahoney (n1752) 13.

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protection of the land outweighs the potential risk of restricting land use for future

generations. Mahoney argues that conservation easements might prove to be

counterproductive as we (the current generation) are potentially tying up the land

for future generations based on contemporaneous thinking and what we anticipate

the planet’s long-term needs are likely to be.1757 This is a valid concern and the

prospect of future generations tied up in lengthy or costly litigation to modify or

reverse the potential use of the land is a genuine concern1758 with equal application

to Britain. In 2012, it was estimated that nearly 9 million acres of the US were

subject to conservation easements1759 and with the bulk of these only having come

into existence in the 1980s1760 it is arguably still too early to tell if and to what extent

they are, or will be, effective. To respond to the potential issues of overly restricting

the land, data could be taken and analysed (perhaps by HM Land Registry or

another independent body) to enable a response when problems become

apparent. Provision could also be included to amend or discharge such

covenants1761 in response to the collated data or should it become expedient to do

so. However, again adopting a pragmatic approach, it is argued that this is an

unquantifiable potential issue and that whilst humanity’s aim should be to protect

the land effectively (for future generations), if nothing is done in the immediate

future there will be significantly less left to protect. The second point is that these

agreements should be in relatively standardised form, not as they are currently

drafted in the US where Government agencies have the ability to negotiate the

terms of private agreements with the owners.1762 In terms of logisitics, this could

prove hugely problematic and consequently prohibitive from a cost perspective.

An alternative proposal could be to create something similar to a TPO to be

governed by a Local Authority that would appear on a Local Search1763 with a

possible financial incentive, a reduction in council tax. If this system is to be

effectively managed by the Local Authority there are three immediate issues: first,

financing the additional workload this would generate in setting up, training and on-

going management (similar to the issues mentioned in relation to a conservation

1757 ibid.1758 ibid 34-6. See also Bonnie Holligan, 'Narratives of Capital versus Narratives of Community: Conservation Covenants and the Private Regulation of Land Use' (2017) J of Environmental L 1, 21.1759 Jay (n1752) 2.1760 Mahoney (n1752) 11.1761 Reid, 'Employing Property Rights for Nature Conservation' (n312) 6.1762 ibid 13.1763 Local Authority Search.

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covenant); second, in creating an additional restriction on change of use this goes

against current government policy of enhancing flexibility between certain

categories of Use Classes1764 (as argued above, this is not intending to focus on

the building/planning aspect of land use); and third, this also contravenes the

mirror principle, one of the general principles of registration, that the title readily

accessible to all is a clear representation of anything affecting the land. However,

the restriction could be added to the Local Land Charges Register, which is being

phased over to HM Land Registry.1765

6.4.2 Financial Incentives

The choice of a financial incentive is based on two factors: first, echoing a recurring

foundational proposition in this research that humanity is fundamentally resistant to

change and that the Sustainability Restriction is slightly less radical than the Land

Model as the latter requires a duty to act rather than a restriction requiring you not

to do something; second, that if the Sustainability Restriction proves effective then

there is a real chance that over time the property model could change into a

paradigm that is similar to (or even becomes) the Land Model through a natural

evolution (at Table 6.2). This could be targeted at the major estates (at 2.4) and

connected to environmental psychology which indicates that certain groups of

people may be more inclined to respond to the call for change, in particular those

who engage with the environment or nature actively and will be potentially more

willing to accept the new Sustainability Restriction pro-actively.

It is argued that the ideal scenario is that humanity would simply choose to accept

the Sustainability Restriction voluntarily however, the premise of this research is

one of pragmatism, and accordingly proposes that a financial incentive will

encourage greater acceptance of such a restriction. Within the context of

environmental law, both Reid1766 and Ross have debated whether tax breaks,

financial support for environmentally friendly action and/or energy conservation

grants are likely to induce people to act, or whether a threat would be more

1764  The Town and Country Planning (General Permitted Development) (England) Order 2015.1765 Infrastructure Act 2015.1766 Colin Reid, ‘The Challenge of Diffuse Conservation (SSSIs)’ (SLS Conference, York September 2015) in the context of diffuse conservation.

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effective.1767 Reid did not reach any conclusions1768 nor did Ross although she does

question the underlying purpose – is it to keep generally willing people in line or to

force behaviour on unwilling parties? These views were raised within the Law

Commission Conservation Covenants report, with some consultees concerned that

incentives could be used as a tax-mitigating tool and potentially devalue assets

before concluding that it would focus on philanthropic uses;1769 this is in marked

contrast to the proposals made in this research, which are to target a voluntary

acceptance of the Sustainability Restriction but to offer a financial incentive to

encourage the change needed in behaviour more actively. The concern is that

those entering into conservation covenants are financially rewarded which might be

perceived as a direct contradiction to the ethics of sustainability1770 (as stated at

3.3.4). This research generally supports McGillivray’s ethical position – to question

whether we should pay people to do the right thing1771 – and there is clearly scope

for potential abuse. However, the counter-argument is that a more pragmatic

approach is now necessary in response to humanity’s resistance to change to-date

and accordingly must take a more realistic approach. This research proposes that

a carrot approach of tax incentives is perhaps initially more likely to prove effective

than fiscal penalties1772 supported by the data (addressed at 4.4). This should be

supported by a subtle shift in perception from the idea of paying someone to do the

right thing to being financially penalised for not doing the right thing.

Environmental psychology research indicates that there are three demographic

groups who tend to be more influenced towards positive environmental behaviour:

women, the number of years in higher education and the younger generation.1773

As the focus of the research is land held as private property, those under 18 years

of age are immediately ruled out on the grounds that they cannot become

landowners until the age of 18. However, with reference to the four major estates

selected (at 2.4) as being indicative of four diverse entities – being a charity, Crown

lands, a government department and a ducal estate – an analysis of those

managing the estate evidences that the National Trust Board of Trustees currently

has eight men and five women all of whom have been educated to graduate level

1767 ibid; Ross, 'It's Time to Get Serious' (n55) 1118; Colin Reid, ‘Enforcement of Policy Duties’ Scottish Planning Environmental Law 132 (2009) 44.1768 ibid.1769 Conservation Covenants (n73) 2.7.1770 McGillivray, 'Water rights and environmental damage’ (n119) 212.1771 See 3.3.4.1772 See 6.4.2.1773 See 4.4.3. See also Holder (n1035).

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or equivalent.1774 The MOD is headed by the Minster of Defence and directly

answerable to the cabinet; the current Minister is the Rt Hon Ben Wallace MP1775

and the current cabinet includes 6 women and 17 men all of whom are educated to

graduate level or equivalent.1776 The Crown Estates Board of Commissioners

currently comprises 4 women and 4 men all of whom appear to have been

educated to graduate level or equivalent. 1777 Similarly, the Board of Directors of the

Northumberland Estates Ltd comprises one woman and 4 men and whilst there is

not information available as to the education of four of these directors, the Duke is

educated to graduate level. So, these data reveal that the demographics of these

groups does, in part, connect to the environmental psychology data in that of those

involved with these entities there is reasonable female representation and most are

educated to graduate level or equivalent (and in some cases beyond). However, it

must be acknowledged that whilst they may fit the demographic data this does not

always correlate with action, especially if there is any deemed conflict with the

fiduciary duties involved with being a director or trustee.

There are three financial incentive proposals. First, a reduction in Stamp Duty

which would only be available on the purchase of land when the purchaser entered

into a Sustainability Restriction; second, a reduction in Council Tax; and third,

charitable tax relief. Taking Stamp Duty first, a financial incentive could take the

form of a reduction on registration at HM Land Registry1778 calculated to reflect the

stamp duty sliding scale tariff given there are currently different stamp duty tariffs

for residential property,1779 with higher rates for additional homes, and for homes

purchased by companies1780 or overseas buyers, as well as various reductions and

exemptions which could be reflected in a reduction going forward. However, it must

be acknowledged that this is not the perfect solution and there are a number of

further issues including for example instances where stamp duty is not payable,

albeit these will be rare given that it becomes payable on residential properties with

1774 National Trust, Board of Trustees <https://nt.global.ssl.fastly.net/documents/meet-the-board-of-trustees.pdf> accessed 30 October 2019.1775 At 30 October 2019.1776 Ibid.1777 ibid, The Crown Estate, <www.thecrownestate.co.uk/en-gb/our-business/our-people/> accessed 30 October 2019 full details of academics are not published.1778 LRA, s27.1779 Stamp Duty Land Tax Act 2015, s1.1780 Finance Act 2016.

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a consideration over £125,0001781 and over £150,000 for non-residential

properties1782 and that (according to HM Land Registry) the average house price in

the UK is £226,071 as at November 2017.1783 Further, this incentive would only be

available once, to the party who first enters the covenant. The justification for this is

much the same as first registration in that it is designed to grow slowly to include

every registrable estate over a number of years. Additionally, this could potentially

impact the value of the property on subsequent sale. Finally, linking the

Sustainability Restriction to a sale or transaction of the land is in all probability of

less relevance to the major estates where land is less likely to change hands.

Donors in the US benefit through a charitable tax deduction on federal income tax

returns and possibly a property tax saving,1784 an initiative that could similarly be

applied in Britain. Elsewhere in British tax legislation, both individuals and

companies have the ability to claim income or corporation tax relief on gifts to

charity, which include gifts of land and certain buildings.1785 However, this currently

requires a full transfer of title so would accordingly not enable the donor to remain

in occupation and would therefore require the current legislation to be amended.

Any income or corporation tax relief should arguably be similarly proportionate to

the size of the gift and could be administered by HM Revenue & Customs and

were legislation to be amended to enable this type of covenant with the associated

tax saving, it could be particularly attractive to some of the major estates, albeit

less so for those already with charitable status.

The final option is a potential reduction in Council Tax that would require additional

central government funding to offset the local authority’s loss of income, thereby

acknowledging that there will be high short-term costs to be balanced against the

more significant long-term savings and benefits. However, this is potentially more

appealing as it would be both simpler to implement and, in terms of on-going

management, could be more easily administered by a Local Authority in tandem

with planning matters or by an independent body.

1781 Stamp Duty Land Tax Act 2015, s1.1782 ibid.1783 HM Land Registry, UK House Price Index, <http://landregistry.data.gov.uk/app/ukhpi> accessed 15 January 2018.1784 Mahoney (n1752) 12.1785 ibid.

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It is clear that any financial incentive will require significant upfront support. For

Stamp Duty, it is likely that the payment would need to be modest, as it would likely

be financially prohibitive on a large scale. The proposal here is that a covenant

could be entered into not on payment but, for example, through a reduction in

Stamp Duty on registration at HM Land Registry.1786 It is clear that this, like any of

the reliefs proposed would mean there is less money in the public purse available

for other matters such as education and health. However, the loss of revenue in

the short term will lead to a much more significant long term saving1787 which are

issues for both the public and government given the high costs.1788

6.4.3 Regulating Body

It has been suggested above that the Sustainability Restriction could be monitored

by HM Land Registry (for Stamp Duty relief) and/or a Local Authority. Additionally,

an independent body could be established to take on this distinct role for example

the Law Commission proposed Ministers, local authorities, statutory bodies and

charities in connection with the proposed conservation covenants.1789 The critical

point is that whichever body is deemed responsible it must have sufficient funding

to be able to fulfil this role effectively. In relation to the Law Commission’s

proposals, Holligan points out (echoing Reid)1790 that much depends on how such

covenants are monitored and enforced.1791 The existing US conservation covenants

system could be improved with the creation of new guidance and (where needed)

clarification to counter the current different approaches seen in different states.

This research proposes that HM Land Registry monitors the covenants (meaning

that a new government agency would not need to be created) that reflect the Law

Commission’s proposals permitting amendment or cancellation.1792 The Land

Registration division of the Property Chamber, the First-tier Tribunal, could deal

with enforcement but as stated, significantly more manpower and funding would be

needed. Nsoh and Reid suggest within the context of biodiversity offsetting that

there is scope for a broker, such as the Environment Bank1793 to assist with locating

1786 Text to n1426.1787 Rockström et al, ‘A safe operating space’ (n8)1788 See 6.6.1789 Conservation Covenants (n73) s4.14-23.1790 ibid 169.1791 Holligan (n1758) 20-23.1792 Conservation Covenants (n73).1793 The Environment Bank, <www.environmentbank.com/> accessed 28 October 2019.

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offsetting sites and negotiations. It is plausible that were a separate entity involved

the process could run more swiftly reducing costs for the parties involved but their

time and costs would additionally meed to be covered. It is clearly something that

should be considered, moving forward with the idea of using a form of conservation

covenant as the mechanism to implement the Sustainability Restriction.

The counter to this is that despite the initial costs being significant, the change will

in the long term make a material difference to the planet whereas the cost of not

succeeding is unquantifiable. A further alternative option has been proposed in the

Mirrlees Report that should be touched on. In brief, the proposal is that stamp duty

be phased out and a new land value tax and housing services tax be created.1794

This has the potential to revisit the land based tax system and factor in a new

mechanism for taxing the land and making deductions subject to the Sustainability

Restriction. Whilst it may create a viable option in the future this would require

government support and major changes in legislation.

6.4.4 Biodiversity Offsetting

As argued above, the Sustainability Restriction is not intended to prohibit use but to

restrict how much may be used; biodiversity offsetting provides a potential

mechanism for addressing this. There is a significant body of work in this field and

this will be touched on to argue that it is a plausible mechanism although a suitable

metric would need to be created, which is beyond the scope of this research. As

stated, the Sustainability Restriction is not intended to stop any use of the land but

is designed to curb consumption of the natural resources dependent upon the land.

It is argued that biodiversity offsetting could provide a mechanism for assessing

how much change of land use, biodiversity loss and tree cover loss is acceptable

(within the concept of sustainability) and how much can be offset either on that plot

and/or elsewhere.

In broad terms, biodiversity offsetting is used where it is apparent that development

work will cause biodiversity harm or loss but is permitted provided there are steps

taken elsewhere (meaning another part of the plot or a distinct plot of land) so as to

achieve no net loss to biodiversity, or ideally a net gain overall.1795 There is a clear 1794 James Mirrlees et al, Tax by design (Institute for Fiscal Studies, OUP 2011).1795 Walters Nsoh and Colin T Reid, ‘Biodiversity Offsetting and Conservation Covenants' (2013) 25(2-3) Environmental L and Management 93, 1 <https://research.birmingham.ac.uk/portal/files/26308633/UKELAconfELM.pdf>

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connection from biodiversity offsetting to conservation covenants which have been

used for some years in the US (notably involving wetlands) and were the subject of

Koontz v St Johns River Water Management District;1796 and similarly exist in EU

law, for example in the Habitats Directive.1797 The initial point to flag up is that these

have traditionally been used within the context of development that has the

potential to cause harm to biodiversity, which should be mitigated to no net loss.

This is in contrast to the Sustainability Restriction with has the potential to apply to

any land held as private property.

A scheme run by DEFRA and Natural England in conjunction with a number of

local authorities ran six biodiversity offsetting pilots from 2012 to 2014,1798 based in

Coventry, Solihull and Warwickshire, Devon, North, South and East Devon,

Doncaster, Greater Norwich and Nottinghamshire.1799 Guidance was produced for

developers, local authorities and offset providers together with relevant metrics.1800

Part of the overall conclusions from the project was that biodiversity offsetting has

potential but that additional resources and ecological expertise would be necessary

to deliver (within the local authorities) and that there would be increased costs for

developers.1801 There is a wealth of information that could be developed as a result

of this scheme from different research perspectives and some of the pertinent

issues could be addressed. The evidence that the costs for developers increased

as a result of biodiversity offsetting1802 as a result of inadequate funding in the

scheme was highlighted in relation to local authorities1803 and it must be accepted

that any new system will potentially cost more to set up and address

implementation problems. More critically, there will be financial implications in

seeking to offset damage to biodiversity. Nsoh and Reid argue that this is in part

accessed 28 October 2019. See also Martine Maron, Richard J Hobbs, Atte Moilanen, Jeffrey W Mathews, Kimberley Christie, Toby A Gardner, David A Keith, David A Lindenmayer and Clive A McAlpine, Faustian bargains? Restoration realities in the context of biodiversity offset policies’ (2012) 155 Biological Conservation 141, 141.1796 133 SCt 2586 (2013). See 3.4.2.1797 Council Directive 92/43/EEC of 21 May 1992.1798 GOV.UK, Biodiversity Offsetting <www.gov.uk/biodiversity-offsetting> accessed 28 October 2019.1799 Collingwood Environmental Planning Limited and The Institute for European Environmental Policy, Evaluation of the Biodiversity Offsetting Pilot Programme 1 (June 2014) Defra project code: WC 1051, 3.1800 GOV.UK, Biodiversity Offsetting <www.gov.uk/biodiversity-offsetting> accessed 28 October 2019.1801 ibid 63.1802 ibid 59.1803 ibid 63.

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due to the delays caused by the need to secure planning permission where there is

an offset.1804 However, this could potentially be streamlined and time reduced with

additional financial support and training. Further, as stated above (at 6.4.1) there

will be high up front costs involved in better protecting the land which will only be

mitigated over a long period of time. This issue of developer’s costs is less

pertinent to the potential application of the Sustainability Restriction, in that it will

not only come into being where land is being developed. The second key issue the

report raised is also relevant, that there was a lack of capacity and resources within

the local planning authorities and less engagement from key stakeholders,

including local planning authorities. This is clearly important, as the first element is

dependent upon ensuring that there is appropriate infrastructure to set up and

manage any such conservation-based tools, be it biodiversity offsetting,

conservation covenants or the Sustainability Restriction. Engagement from the

Local Planning Authority and stakeholders is a genuine concern as this group has

been proposed as a one potential body to implement the Sustainability Restriction

(in the form of something akin to a TPO) and, repeating the earlier point, if there is

sufficient funding to enable the planning authority to perform the function properly

and with adequate training the perspective may be different. It is perhaps less

surprising that NGOs were less engaged with the process in that (as highlighted

above at 2.4) in relation to the National Trust, each of the nature based NGOs

have a very specific take on how they see their role and function within

sustainability, often with very diverse and very specific issues that they seek to

promote.

Another potential issue with the use of biodiversity offsetting is related to the fact

that conservation covenants and the Sustainability Restriction are intended to bind

to the land and endure through ownership changes. This presents logistical issues

as to the form of the agreement and was also addressed by the Law Commission

Consultees, who suggested that section 106 planning obligations1805 can be

unlimited but are typically for between 10 to 30 years. The Law Commission

reported that the Woodland Trust commented, ‘the time period is too short for

many habitats or species to develop sustainable communities’.1806 It is argued that

this could be addressed through Nsoh and Reid’s suggestion to use a two tiered

approach, ‘a long-term covenant setting objectives accompanied by a short-term 1804 Nsoh and Reid, ‘Biodiversity Offsetting and Conservation Covenants' (n1795) 3.1805 Town and Country Planning Act 1990, s106.1806 Collingwood Environmental Planning Limited and The Institute for European Environmental Policy (n1799).

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management agreement with the detailed provisions specifying what is to be done

on the ground over the next few years’.1807 This would work equally well within the

Sustainability Restriction.

In terms of implementing a form of biodiversity offsetting in support of the

Sustainability Restriction, a new framework and metric would need to be produced

(beyond the scope of the research) that could draw on those used in the DEFRA

pilot scheme. These could be adapted to set up and run a pilot scheme for the

Sustainability Restriction. There is a clear argument that biodiversity offsetting is a

policy driven, political device;1808 a political response to the issues facing the planet.

As such, this type of new project will, it is hoped, benefit from political and financial

support,1809 both of which are central to the potential success of any such scheme.

6.5 Conclusions

This chapter has pulled together all the strands from previous chapters – the

theoretical framework comprising property and sustainability theories, the defence

of property as a mechanism for change to support one limb of this research, and

the creation of the Sustainability Restriction – culminating in the comparison of the

three theories against the new ‘ownership’ criteria. The first portion of the chapter

answered the first part of the sub-research question which jurisdiction in Britain is best placed to support the new Land Model? It was shown that the best

placed jurisdiction to support the Land Model going forward is the post-devolution

Welsh model (at least in the short-term), and that there is a clear development of

sustainability legislation that is more compatible, relatively speaking, with the

Welsh jurisdiction. The second part of the sub-research question asked how do the property theories rank against each other in comparison and illustrated the

form of the ‘most effective’ model of property, showing critically that the paradigm

selection – the Liberal paradigm, Stewardship or Progressive Property – is actually

of less relevance once the Sustainability Restriction is implemented.

The main research question – what is the most effective model of property to protect land, as part of the environment for the future? – can now be answered

1807 Nsoh and Reid, ‘Biodiversity Offsetting and Conservation Covenants' (n1795) 5.1808 Fanny Guillet and Luc Semal, ‘Policy flaws of biodiversity offsetting as a conservation strategy’ (2018) 221 Biological Conservation 86, 86 in relation to France.1809 ibid 87.

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by demonstrating that the most effective theoretical model is a combination of

Stewardship and Progressive Property, the Land Model.

However, there remains a significant distance to travel. Unless and until humanity

is willing to accept the need for change (here expressed as acknowledgment) then

change (action) itself cannot happen sufficiently. As Ross points out, ‘real change

requires a cultural acceptance that prioritises operating within the Earth’s limits’.1810

This research argues that an aggressive legislative agenda to implement

sustainability is unlikely to happen for a myriad of reasons1811 in particular political

short-termism and humanity’s lack of willingness to restrict consumption, but that

there is a way forward in the form of the new Sustainability Restriction which

(through an evolution of the property paradigm) will bring about a Velvet Property

Revolution.

1810 Andrea Ross and Rhys Jones, ‘Connections and Tensions Between Nationalist and Sustainability Discourse’ (2016) 43(2) J of L and Society 228, 240.1811 See 4.7.

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Chapter 7 Conclusion

7.1 Introduction

The aim of this research is to challenge current thinking and question whether

there might be a superior mechanism than any of those already in existence to

protect the land, as part of the environment. Recognising the problems facing

Earth,1812 this research adopts a pragmatic approach but does represent a call for

action – albeit acknowledging that not all good intentions can immediately reach

fruition – and seeks a ground-up solution, drawing on two academic disciplines,

property and sustainability, synthesised as the mechanism to affect this change to

protect land, as part of the environment.

Environmental ethics challenge our values and therefore the right thing to do;1813

the question of how we, as humans, should live is a theme throughout this

research explored here through environmental psychology1814 and supports the

strong sustainably approach taken.1815 It has been argued that this research sits

closest to Leopold’s Land Ethic,1816 supported by a convergence of literature citing

the Land Ethic as the foundation of the ecological philosophy behind both

Stewardship and Sustainability.1817 Similar values are evident in Progressive

Property,1818 Sustainability,1819 and in more recent legislation in Wales.1820

The argument in favour of a pragmatic approach to facilitate change through a

familiar paradigm is in recognition of humanity’s reluctance to change – notably

evident through an unwillingness to restrict consumption1821 – and an awareness of

the limitations around implementing a pro-active legislative agenda.1822 Different

1812 See 1.1.1813 See 4.4.2.1814 See 4.4.3.1815 See 4.4.1.1816 See 4.4.2.1817 Gray, 'Equitable Property' (n139) 2; Raff (n411) 671; Coyle and Morrow (n656) 139; Kathie Jenni, 'Western Environmental Ethics: An Overview' (2005) J of Chinese Philosophy 32(1) 1, 5; Freyfogle, ‘Taking Property Seriously’ (n164); Carpenter, Katyal and Riley (n1084) 1075; Bosselmann, 'Losing the Forest for the Trees’ (1084) 2434; Robertson (n998) 13.1818 See 3.4.1819 See 4.2; 4.4.2.1820 See 6.2.2.1821 See 4.5.1822 See 4.7.

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disciplines have approached this problem in different ways,1823 with some

proposing legislation and/or sustainability discourse. However, this research

recognises the difficulties of successful overarching legislative implementation and

consequently suggests that the proposed ‘change’ (discussed through this

research as acknowledgment and action) should take an interdisciplinary approach

– property theory and sustainability – placing the land (as part of the environment)

at the forefront. It is argued that the form of the new Sustainability Restriction

could, if adopted, modify the property paradigm through evolution towards

something akin to the new Land Model.

Several key conclusions have been reached:

the call for change (already acknowledged by many) is a two part process: a

fundamental shift in perception to accept that change is needed

(acknowledgment) followed by having the willingness to act accordingly

(action);1824

the addition of the Sustainability Restriction1825 would have a positive impact

regardless of whether the landholding paradigm is the Liberal paradigm,

Stewardship or Progressive Property;1826

if even a relatively small section of society (the major estates1827) adjust its

behaviour towards the land and then acts accordingly, there will be a positive

impact;1828

creating an effective mechanism to protect the land for the future presents a

complex set of challenges. At this stage, there is no conclusive answer but there

are arguments in favour of both: retaining something fluid to reflect a change in

the needs of society; and for something more rigid. Despite the lack of a

definitive solution, there is scope for further development using something akin

to US public trust doctrine;1829

recent sustainability legislation in Wales will (in all probability) change the

formulation of the property model in these jurisdictions over time;1830

1823 Lucy and Mitchell (n43); Jackson, Prosperity Without Growth (n49); Rockström et al, ‘A safe operating space’ (n8); Alexander, Peñalver, Singer and Underkuffler (n44); Ross, Sustainable Development Law (n70).1824 See 4.4.1825 See 5.6; 6.3.6-6.3.9. 1826 See 6.3.6.1827 See 2.4.1828 Stockholm Resilience Centre (n1348) 16.1829 See 4.6.1830 See 6.3; Table 6.3.

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the most effective model of property would be a hybrid of the three theories

analysed, called the Land Model;1831

Wales, as a jurisdiction, represents the best opportunity to support the Land

Model1832 – the most effective model – in the immediate future.

The primary research question asks what is the most effective model of property to protect land, as part of the environment, for the future? This has

been investigated through the following sub-research questions:

how can the theories of property in land be utilised to promote/support

sustainability?

what are the rights and duties demonstrated by the three selected theories of

property?

what is the connection between sustainability and theories of property in land?

is there a viable measure of Sustainability and, if so, how can it be used to

develop a sustainability restriction?

which jurisdiction in Britain is best placed to support the new Land Model, and

how do the property theories rank against each other in comparison?

The sections below summarise the conclusions reached in relation to each sub-

research question.

7.2 How can the theories of property in land be utilised to promote/support sustainability?

Chapter 2 argued that the proposed ‘change’ could be best implemented using the

theory of property as the mechanism for change, through the acceptance of an

additional burden on a landowner to act in a more responsible way towards the

environment/ecosystem.1833 The concept is to use Honoré’s Incidents of Ownership

as a mechanism to map the three theories of property and analyse the

consequential impact on the way property in land is treated.1834 Sustainability

theory provided a vehicle for the creation of the Sustainability Restriction in later

chapters.1835

1831 See 6.3.12.1832 ibid.1833 See 4.4.2; 6.3.11.1834 See 2.3.1835 See 5.6.

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It was argued that the commodification of property inhibits the relationship between

humanity and the land,1836 connecting with environmental psychology to suggest

that there are two demographic groups who should connect with the environment

and may be more willing to accept the additional burden.1837 The current property

holding paradigm in Britain1838 is generally acknowledged to be the Liberal model of

property which includes different modes of land holding: private property,1839

commons or common land,1840 communal property,1841 quasi property1842 and state

owned property.1843 In Britain however, not only is all land ultimately ‘owned’ by the

crown but many of these modes of land holding relate back to private property;

hence making private property the primary focus of this research. Within private

property is a secondary focus, the major estates that ‘own’ a significant portion of

the land in England and Wales; and where an acceptance of the Sustainability

Restriction could have the greatest impact.1844 Through acknowledging this focus

on private property, this research uses Honoré’s Incidents of Ownership

(incorporating the new Sustainability Restriction) as the assessment criteria as a

means to map the form of the three theories and to establish which is the most

effective property theory to promote this change by comparatively analysing three

theories of property – the Liberal paradigm, Stewardship and Progressive Property.

Thus, through the incorporation of the Sustainability Restriction into Honoré’s

Incidents of Ownership, the theory of property is being used to promote

sustainability leading, in turn, to a property model supporting the concept.

7.3 What are the rights and duties demonstrated by the Liberal paradigm, Stewardship and Progressive Property?

Chapter 3 introduced the three theories of property – the Liberal paradigm,

Stewardship and Progressive Property -– to be comparatively analysed in Chapter

6,1845 to establish which is the most effective model. The sub-research question

was phrased to elicit the requisite responses to enable the comparative analysis to

be completed in Chapter 6. All three theories were analysed in terms of the rights

1836 See 2.2.1; 2.3.1837 See 4.4.3.1838 See 6.6.1-6.3.1.1839 See 1.2; 2.2.2.1840 ibid.1841 ibid.1842 ibid.1843 ibid.1844 See 2.5; 6.3.6-6.3.9.1845 See 6.3.

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the owner of the land could exercise1846 and the duties the landowner owed.1847 This

comparative rights-based analysis has not previously been undertaken and the

conclusions as to rights and duties are based in part on the available literature and

in part on the ethics contained within each theory. Where gaps were evident in

scholarship, hypotheses were made as to how these aspects could look. The

conclusions were then used in Chapter 6 to map and compare the three theories,

first against the Incidents of Ownership and then, secondly, against the Incidents of

Ownership incorporating the new Sustainability Restriction.1848

7.4 What is the connection between sustainability and the theories of property in land?

Sustainability is the second limb of the theoretical framework in this research and,

to answer this sub-research question, Chapter 4 explored the definitional issues

within sustainability,1849 the mechanisms for implementing sustainability

(sustainable development), and the theory behind the concept.1850 Ethics and

environmental psychology connect to the strong sustainability approach taken and

the connection to property theory.1851 This chapter concluded that the change

sought in much of the literature needs to be a two-stage process: accepting the

need for adjusting lifestyles (acknowledgment) and then having the willingness to

act accordingly (action). It is argued that legislation is the best method to

implement the Land Model, illustrating how a change in the way humanity treats

the land can be achieved through the adoption of the new Sustainability

Restriction, and arguing that even small incremental changes can potentially have

a significant positive impact.1852 This chapter also draws out one critical issue

common to sustainability literature, legislation and policy: the lack of substance

afforded to the notion of future generations with the direct connection to one aspect

of the main research question – to protect land for the future.1853 There is, as yet,

no viable mechanism for locking in future generations in part because there is little

consensus as to what the best interests of future generations might mean or be;1854

and concern that we could actually cause more problems for these future

1846 See 3.2.2; 3.3.3; 3.4.5.1847 See 3.2.2; 3.3.2; 3.4.4.1848 See 6.3.6-6.3.9.1849 See 4.3; 4.5.1850 ibid.1851 See 2.6; 4.4.1852 See Table 6.2; Stockholm Resilience Centre (n1348) 16.1853 See 4.6.1854 See 4.6.

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generations in attempting to do so.1855 However, two options are worthy of further

consideration: Brown Weiss’s concept of planetary trust1856 and (more promisingly)

the US doctrine of public trust.1857 Finally, this chapter concluded with an exposition

as to why sustainability has not yet successfully and fully evolved from policy to

legislation, providing further evidence around how the proposals made in this

research could help fill this void.1858

7.5 Is there a viable measure of Sustainability and, if so, how is it to be used to develop a sustainability restriction?

Having explored the issues surrounding the creation of, and results drawn from,

SIs, Chapter 5 concludes that there is not currently an entirely satisfactory

measure of sustainable development.1859 However, the clear distinction between

the frameworks and the indicator sets inserted within them to measure progress (or

deterioration) quantitatively was set out. It was then argued that there is clear merit

in the creation of the Sustainability Framework1860 from which the Sustainability

Restriction was formed, with this to be used in the property comparison.1861 The

Sustainability Framework used in this research was developed based on the

Bellagio STAMP1862 guidelines and is based on a comparison of two environment

frameworks: the EPI1863 and the Planetary Boundaries concept.1864 The

Sustainability Framework is then reduced to form the Sustainability Restriction by

placing a restriction on the rate of biodiversity loss, a change in land use and a

reduction in tree cover.1865 This is then used in the comparison in Chapter 6.

7.6 Which jurisdiction in Britain is best placed to support the new Land Model, and how do the property theories rank against each other in comparison?

Chapter 6 pulls together all the strands from the previous chapters and establishes

an unanticipated finding: the adoption of the Sustainability Restriction1866 would

1855 Reid, 'Employing Property Rights for Nature Conservation' (n312).1856 See 4.6.1857 ibid.1858 See 4.8.1859 See 5.31860 See 5.5.3.1861 See 5.6.1862 See 5.4.1863 See 5.5.1.1864 See 5.5.2.1865 See 5.6.1866 See 5.6; 6.3.6-6.3.9.

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have a positive impact regardless of whether the landholding paradigm is the

Liberal paradigm, Stewardship or Progressive Property.1867 This chapter is the

product of a series of advanced ideas – the use of the theoretical framework

comprising property and sustainability theories, the creation of a new Sustainability

Restriction – and culminates in an initial mapping and comparison of the three

theories against the Incidents of Ownership, and secondly against the Incidents of

Ownership incorporating the Sustainability Restriction. The chapter answers the

second part of the sub-research question by assessing which jurisdiction –

England or Wales -– would best support the Land Model in the future; the

conclusion is Wales based on a post-devolution political analysis of sustainability

based legislation.1868 The second part of the sub-research question is answered by

proposing that the most effective model of property is the Land Model.1869 The

comparison also concludes that the model selected is of less relevance once the

Sustainability Restriction is included and that, if implemented, the Sustainability

Restriction could prompt a change to a paradigm such as the new Land Model

through evolution of the property models.

7.7 Conclusion – a Velvet Property Revolution

The main research question asks what is the most effective model of property to protect land, as part of the environment for the future? This can now be

answered by demonstrating that the most effective theoretical model is a

combination of Stewardship and Progressive Property; the new Land Model.

Critically however, this is actually of less importance than the inclusion of the

Sustainability Restriction which could be used with any form of private property

model to protect land, as part of the environment to prompt an evolution of the

property paradigm to create a new paradigm substantially similar to the proposed

new Land Model. The closest jurisdiction to the Land Model and the one best

placed to support it into the future is Wales but it is by no means perfect and there

remains some way to go.1870

Robert Frost wrote:

Two roads diverged in a wood, and I -

I took the one less travelled by,1867 See 6.3.6.1868 See 6.4.1869 See 6.3.11.1870 See 6.3.2; 6.4.

272

And that has made all the difference.1871

The fate of planet Earth is in the hands of humanity and, put simply, we must

recognise the need to change and act accordingly. Even if this challenge is only

taken up by the few,1872 but with each making their own contribution,1873 this

research shows that such small changes can, combined, bring about a significant

change for the better: a Velvet Property Revolution.

1871 Robert Frost, ‘The Road Not Taken’ Mountain Interval (first published 1916).1872 See 2.4.1873 Stockholm Resilience Centre (n1348) 16.

273

Abbreviations and Glossary

COP21 United Nations Framework Convention on Climate Change (Paris

2015)

COP24 United Nations Framework Convention on Climate Change

(Katowice 2018)

DEFRA Department for Environment, Food and Rural Affairs

EIA Environmental Impact Assessment

ECHR European Convention on Human Rights

EPI Environmental Performance Index

ESI Environmental Sustainability Index

GB Great Britain (comprising England, Scotland and Wales)

GDP Gross Domestic Product

GLA Greater London Authority

HRA Human Rights Act 1998

IDA International Development Act 2002

IMF International Monetary Fund

IPBES Intergovernmental Science-Policy Platform on Biodiversity and

Ecosystem Services

LPA Law of Property Act 1925

LRA Land Registration Act 2002

LRSA Land Reform (Scotland) Act 2016

LR(S)A Land Registration (Scotland) Act 2012

MOD Ministry of Defence

NERC Natural Environment and Rural Communities Act

NPPF National Planning Policy Framework

P1A1 Protocol 1, Article 1

SDC Sustainable Development Commission

SEPA Scottish Environment Protection Agency

SI Sustainability Indicator

TPO Tree Preservation Order

UN United Nations

UNCED United Nations Conference of Environment and Development

UNGA United Nations General Assembly

UNWSSD United Nations World Summit on Sustainable Development

WWF World Wide Fund for Nature

17 SDGs 17 Sustainable Development Goals

274

Appendix 11874

England only

Local Authorities 1,326,655

Forestry Commission 489,814

National Trust (England & Wales) 474,641

Ministry of Defence 397,098

England & Wales

Crown Estate 336,000

Other Whitehall Departments 158,957

United Utilities Water Ltd 140,124

The Duke of Northumberland 132,200

The Duchy of Cornwall 130,639

The Duke of Westminster 129,300

RSPB 127,032

Oxbridge Colleges 126,000

Highways England 114,314

Church Commissioners 105,000

Network Rail 100,525

Dwr Cymru Cyfyngedig 77,975

The Duke of Devonshire 73,000

MRH Minerals Ltd 67,935

Harworth Estates 67,159

The Duke of Beaufort 52,000

Total (Acres) 4,626,962

Total Britain (Acres) 37,000,000

1874 Shrubsole (n110) 53; 297-308.

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