Nature's place? property rights, property rules and environmental stewardship

The Cambridge Law Journal

Volumn 68, Issue 3, 2009, Pages 550-574

  Rodgers, Christopher ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

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EID: 85007974253     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197309990146     Document Type: Article

References (111)

1. For an eloquent exposition of this point see K. Gray and S.F. Gray, “The Idea of Property in Land”, in S. Bright and J. Dewar (eds.) Land Law: Themes and Perspectives (Oxford 1998), at p. 15.
2. See J. Waldron, “What is Private Property?” (1985) 5 O.J.L.S. 313 at 318.
3. Article 1 of the Protocol to the European Convention on Human Rights guarantees the peaceful enjoyment of possessions, but subject to the important caveat that the state has the right to enforce such laws as it deems necessary “to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.
4. [2003] Env. L.R. 3, 83.
5. Under section 28(1) Wildlife and Countryside Act 1981, as amended by Sched. 9 Countryside and Rights of Way Act 2000.
6. See Trailer and Marina (Leven) Ltd v. Secretary of State and English Nature [2004] EWHC Admin 153, [2004] EWCA Civ 1580.
7. See P. A. Joseph, “The Environment, Property Rights and Public Choice Theory” (2003) 20 N.Z.U.L.R. 408.
8. See Waldron, above n.2, 327-333.
9. See A. Honore, “Ownership” in A. Guest (ed.), Oxford Essays in Jurisprudence (Oxford 1961) ch. V; and “Ownership” in A. Honore, Making Law Bind: Essays Legal and Philosophical (Oxford 1987), 161.
10. See Honore, “Ownership”, above n.9, 107ff.
11. JW Harris, “Private and Non Private Property” (1995) 111 L.Q.R. 421, 425. By a trespassory rule here is meant a social rule that purports to impose an obligation on all members of society (other than an individual who is taken to have an open ended relationship with a thing) not to make use of that thing without the consent of the individual or group.
12. J.W. Harris, Property and Justice (Oxford 1996), at 140-142.
13. See for example Murray Raff, “Environmental Obligations and the Western Liberal Property Concept” (1998) 22 Melbourne University Law Review 657; Joseph Penner, “The ‘Bundle of Rights’ Picture of Property” (1996) 43 U.C.L.A. Law Review 711.
14. Although the importance of legitimacy is by no means ignored in all sociological thinking on property: see for example Max Weber, “The Three Pure Types of Legitimate Rule”, in S. Whimster (ed.), The Essential Weber, a Reader (London 2004), chapter 7.
15. L. Libby, “Conflict on the Commons: Natural Resource Entitlements” (1995) 76 American Journal of Agricultural Economics 997.
16. See H. Demsetz, “Towards a Theory of Property Rights” (1967) 57 American Economic Review 347, at 348ff.
17. See now inter alia K.J. Gray, “Property in Thin Air” [1991] C.L.J. 252; K. Gray and S.F. Gray, “Private property and Public propriety”, in J. Maclean (ed.), Property and the Constitution (Oxford 1999), chapter 2; Waldron, above n.2; W.N.R. Lucy and C. Mitchell, “Replacing Private Property: the Case for Stewardship” [1996] C.L.J. 566; Raff, above n.13; T.W. Frazier, “The Green Alternative to Classical Liberal Property Theory” (1995) 20 Vermont L.R. 299; M.B. Metzger, “Private Property and Environment Sanity” (1976) 5 Ecology L.Q. 792.
18. See for instance D.W. Bromley, Environment and Economy: Property Rights and Public Policy (Oxford 1991); I.D. Hodge, “Incentive Policies and the Rural Environment” (1991) 7 Journal of Rural Studies 373; B. Colby, “Bargaining over Agricultural Property Rights” (1995) 77 American Journal of Agricultural Economics 1186 (adopting a bargaining model).
19. See G. Calabresi and A.D. Melamed, “Property Rules, Liability Rules and Inalienability: One View of the Cathedral” (1972) 85 Harvard Law Review 1089.
20. Harris, above n.12, esp. at 35ff.
21. See G. Calabresi and A.D. Melamed, n.19 above, at 1092.
22. For example Entry Level and Higher Level Environmental Stewardship agreements, discussed below at p. 568.
23. E.g. under section 50 Wildlife and Countryside Act 1981 and the Financial Guidelines for Management Agreements and other related matters (Department of the Environment Transport and the Regions 2001).
24. See Harris, above n.12, at 35.
25. See Council Regulation (EC) 1698/2005, OJ [2005] L277/1, esp. arts 36(a)(iv) and 39. Agrienvironment measures introduced between 1999 and 2006, many of which are still current, were introduced under the 1999 Rural Development Regulation, which incorporated similar principles: see Art. 24 Council Regulation (EC) 1257/1999, OJ [1999] L 160/80. Support can also include payments in respect of the additional cost resulting from the commitment given in the contract and “the need to provide an incentive”.
26. See Harris, above n.12, at 35, and especially at 41 (”Much of environmental law consists of property limitation rules-restrictions on what people would otherwise be free to do by virtue of ownership interests”).
27. Planning (Listed Buildings and Conservation Areas) Act 1990, ss. 7-9.
28. Ancient Monuments and Archaeological Areas Act 1979, ss 2-5.
29. Town and Country Planning Act 1990, section 57(1).
30. For example M. Radin, “The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings” (1988) 88 Col. L. Rev. 1667; Gray and Gray, above n.1, esp. at 39ff.
31. Above n.1, at p.40.
32. Gray terms this a “state-approved usufruct”: above n.1, p.40.
33. See for example Gray and Gray, above n.17, at 18-20.
34. Above n.1, esp. at p.39ff.
35. For example management agreements with incentive payments, made under the Wildlife and Countryside Act 1981 and the Financial Guidelines for Management Agreements and other related matters (DEFRA 2001), made under section 50 of the 1981 Act.
36. In England this is Natural England: see the Natural Environment and Rural Communities Act 2006, section 1(4) and Schedule 5. The statutory nature conservation functions are carried out by Scottish Natural Heritage in Scotland, and by the Countryside Council for Wales in Wales: Environmental Protection Act 1990, Part VII, and Natural Heritage (Scotland) Act 1991 Schedule 2. Prior to the establishment of regional conservation bodies by the Environmental Protection Act 1990, these functions were carried out by the Nature Conservancy Council in relation to the whole of England, Wales and Scotland.
37. The Countryside and Rights of Way Act 2000 made extensive changes to the habitat protection provision in the Wildlife and Countryside Act 1981, which are discussed below. Save for a limited number of provisions (none of which are relevant here) it's application was limited to England and Wales: section 104(4) The statutory nature conservation functions are carried out by Scottish Natural Heritage in Scotland, and by the Countryside Council for Wales in Wales: Environmental Protection Act 1990, Part VII, and Natural Heritage. The Nature Conservation (Scotland) Act 2004, Part 2, replaced the
38. 1981 Act with a discrete code for SSSIs applicable in Scotland.
39. For the relevant statutory powers as to planning obligations see section 106 Town and Country Planning Act 1990 (England and Wales), section 50 Town and Country Planning (Scotland) Act
40. 1972 (Scotland). Policy guidance on the use of these powers in England and Wales includes, for example, provision for their use to mitigate and compensate for the negative landscape and biodiversity impacts of proposed development: see Department of Communities and Local Government Circular 05/05 Planning Obligations Annex B Para B16. And see generally Planning Obligations: Practice Guide (Department of Communities and Local Government 2006).
41. See A Guide to the Cairngorm Funicular Minute of Agreement (Highland Council, March 1997), and esp. Clauses 6-8 of the planning agreement made under section 50 Town and Country Planning (Scotland) Act 1972 between the Highland Council, Scottish Natural Heritage, Highlands and Islands Enterprise and the Cairngorm Chairlift Company Ltd; Planning Permission BS/1994/254 (The Highland Council to Cairngorm Chairlift Company Ltd), conditions 27 (baseline habitat monitoring) and 28 (operational monitoring). The grant of planning permission for the Cairngorm Funicular was unsuccessfully challenged in the Scottish courts: see further WWF-UK and RSPB v. Secretary of State for Scotland [1999] Env L.R. 632; K. Last, “Environmental Assessment and the Designation of Special Protection Areas” [1999] Env L Rev 133ff; J. Holder, Environmental Assessment: the Regulation of Decision Making (Oxford 2004), pp. 272-281.
42. Water Resources Act 1991, s. 85 (water discharge permits); Environmental Permitting (England and Wales) Regulations 2007 (SI 2007/3538), Schedule 1, and the Integrated Pollution Prevention and Control Act 1999 (IPPC Permits). IPPC and waste management licences were brought within an integrated permitting framework by the 2007 regulations.
43. Conservation of Nature in England and Wales, Wildlife Conservation Special Committee Cmnd.
44. 7122 (the “Huxley Committee”).
45. See G. Cox and P. Lowe, “A Battle Not theWar: the Politics of theWildlife and Countryside Act” (1983) 4 Countryside Planning Yearbook 48-77 and “Countryside Politics: Goodbye to Goodwill?” (1983) 54 Politics Quarterly 268; P. Lowe et al. Countryside Conflicts: the Politics of Farming, Forestry and Conservation (Aldershot 1986), chapter 6; Michael Winter, Rural Politics: Policies for Agriculture, Forestry and the Environment (London 1996), chapter 8, esp. pp.205ff.; W.M. Adams, Nature's Place: Conservation Sites and Countryside Change (London 1986), chapter
46. and passim. Future Nature; a Vision for Conservation (London 1997), at pp.37-50.
47. Subject, of course, to planning constraints, which have a limited application to agriculture and forestry in any event: section 55(2)(e)(f) Town and Country Planning Act 1990 (exemption of use of land or buildings for agriculture or forestry purposes from definition of “development” necessitating planning permission), Schedule 2 Part 6 Town and Country Planning (General Permitted Development) Order 1995, SI 1995/418 (permitted development rights for agricultural buildings and operations).
48. Section 28(5) Wildlife and Countryside Act 1981.
49. This procedure was subjected to judicial criticism by the House of Lords in Southern Water Authority v. Nature Conservancy Council [1992] 3 All. E.R. 481. Lord Mustill referred to the statutory consultation procedure as “toothless” ([1992] 3 All.E.R. 481 at 484 g).
50. Harris, above n.12, at 35.
51. See for example S. Ball, “Reforming the Law of Habitat Protection”, in C. Rodgers (ed.) Nature Conservation and Countryside Law (Cardiff 1996), at p 92; C. Rodgers, “Reforming Property Rights for Nature Conservation” in P. Jackson and D.C. Wilde (eds.) Property Law: Current Issues and Debates (Aldershot 1998), 48; L. Livingstone et al, Management Agreements for Nature Conservation in Scotland (Aberdeen 1990); C. Rodgers and J. Bishop, Management Agreements for Promoting Nature Conservation (RICS Research Reports, 1998), chapter 2.
52. Under section 29 Wildlife and Countryside Act 1981. This power was repealed in England and Wales by the Countryside and Rights of Way Act 2000 Sched. 10 para. 7; Sched. 16.
53. Department of the Environment Circular 4/83, “Wildlife and Countryside Act 1981-Financial Guidelines for Management Agreements”, esp. Para 14 (lump sum payments) and paras 16-18 (annual payments). The guidelines were generously interpreted by the courts and gave rise to very large (and controversial) payment entitlements: see for example Thomas v. Countryside Council for Wales [1994] 4 All E.R. 853; Cameron v. Nature Conservancy Council 1991 SLT (Lands Tribunal) 85.
54. Section 28E(3),(5) Wildlife and Countryside Act 1981, introduced by Sched. 9 Countryside and Rights of Way Act 2000.
55. Section 28F. Operational consent granted by the conservation bodies for potentially damaging operations can also now be subject to conditions or time-limited.
56. See section 28(4) Wildlife and Countryside Act 1981, as amended by Sched. 9 Countryside and Rights of Way Act 2000.
57. See Nature Conservation (Scotland) Act 2004, section 4 (emphasis added). Provision is also made for the review of the site management statement and its amendment by Scottish Natural Heritage: section 4(4).
58. See Wildlife and Countryside Act 1981, as amended by Sched.9 Countryside and Rights of Way Act 2000, section 28M.
59. See Nature Conservation (Scotland) Act 2004, sections 16-18.
60. Section 16(9). This is subject to Ministerial guidance approved under section 54. In England it is compulsory to offer an agreement where operational consent has been granted but is later withdrawn or amended.
61. The Conservation (Natural Habitats, &c.) Regulations 1994, SI 1994/2716 as amended by SI 2007/ 1843, SI 2008/2172, and SI 2009/6. “European sites” consist of the following: Special Areas of Conservation (”SAC”); Sites of Community Importance adopted by the European Commission prior to full designation as SACs; candidate SACs submitted to the Commission pending full adoption as SACs; Special Protection Areas designated under the EC Wild Birds Directive of 1979 (see SI 1994/2716, reg. 10, as amended by reg. 5(9) SI 2007/1843). European sites are designated under the terms of Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna, [1992] OJ L206/7 (the “Habitats Directive”).
62. As a matter of public policy all European sites in England and Wales are also notified as SSSIs under the Wildlife and Countryside Act 1981. They are therefore subject to two parallel systems of land use control-those applicable under the 1994 regulations in European sites, and the land use restrictions described above and applicable in SSSIs. The administrative discretion of the conservation bodies to consider a site's role in a wider geographical habitat of European significance when considering it for initial notification as an SSSI was upheld in Fisher v. English Nature [2004] EWCA Civ 663. In Aggregate Industries Ltd. v. English Nature [2003] Env. L.R. 3.
63. it was also held, on judicial review of an SSSI notification by English Nature, that the fact that a site was to become a European site under the EC Wild Birds Directive was not an irrelevant consideration provided the criteria for designating the site as an SSSI under section 28 of the Wildlife and Countryside Act 1981 were satisfied.
64. Conservation (Natural Habitats, &c.) Regulations 1994, SI 1994/2716, regulation 20(1),(2).
65. Regulation 28.
66. Regulation 26.
67. Regulation 16.
68. See generally Sites of Special Scientific Interest: Encouraging Positive Partnerships (Code of Guidance) (Department for Environment Food and Rural Affairs, 2003); in particular paras 9-12 (working in partnership), 25-28 (managing SSSIs), and 37-41 (applications for consent to operations). The code of guidance sets out advice to Natural England on how DEFRA wish to see its extensive new powers in the Countryside and Rights of Way Act 2000 used to promote the positive management of SSSIs.
69. Wildlife and Countryside Act 1981, section 28A, inserted by Sched. 9 Countryside and Rights of Way Act 2000. A site can also be denotified if the conservation body is of the opinion that all or part of it no longer has special interest: section 28B. Scottish Natural Heritage has similar powers to amend SSSI notifications under section 8 Nature Conservation (Scotland) Act 2004, and has a duty to periodically review operational consents under section 6.
70. See Harris, above n.12, at 35, and above n.24.
71. See Sites of Special Scientific Interest: Better protection and Management (DETR 1998) Proposal 28 and paras D14-D16; Sites of Special Scientific Interest: Encouraging Positive Partnerships (Code of Guidance) (Department for Environment Food and Rural Affairs, 2003) at para. 25 (”the secretary of state lays the greatest store in ensuring that SSSIs are appropriately and positively managed. Lack of appropriate management is widely recognised as the commonest cause of deterioration in the special interest. Positive management is most likely to be secured with the active co-operation of land managers”).
72. Wildlife and Countryside Act 1981, section 28J introduced by Sched. 9 Countryside and Rights of Way Act 2000. DEFRA's guidance to the conservation bodies envisages that management schemes should only be used where voluntary agreement as to positive management of a SSSI cannot be reached with landowners. It is also envisaged that schemes will be used in SSSIs with more complex management and/or ownership issues: see Sites of Special Scientific Interest: Encouraging Positive Partnerships (Code of Guidance) above n.63, paras. 29-34.
73. Section 28K(1).
74. Section 28K(2). The use of management notices was envisaged as a measure of last resort, to be used after extensive discussion with landowners and managers. There is, moreover, a right of appeal against the making of an order to the secretary of state. See further Sites of Special Scientific Interest: the Governments Framework or Action (DETR 1999) at p5.
75. See Nature Conservation (Scotland) Act 2004, section 30. If made, an order can impose both positive obligations on the landowner (”operations which are to be carried out on the land for the purpose of conserving restoring or otherwise enhancing” the natural features of the site) and restrictions on damaging operations: see section 31(1)(d)(e).
76. See Nature Conservation (Scotland) Act 2004, section 29(2)-(4).
77. This was, of course, the underlying premise on which the measures in theWildlife and Countryside Act 1981 were originally based: above n.42 and 43.
78. Guidelines on Management Agreement Payments and other related matters (DETR 2001), made under Wildlife and Countryside Act 1981, section 50.
79. See research data at p.30 and Annex E of Management Agreements for Promoting Nature Conservation (C. Rodgers and J. Bishop, RICS Research Report, 1998). Only 18% of landowners with agreements in the research sample were found to have served notice of intention to carry out OLDs prior to being offered a management agreement. 82% of agreements had been secured through a unilateral approach from the conservation body. The use of the statutory consultation mechanism increased slightly when a chartered surveyor represented the landowner in negotiations with English Nature, but only to 25% of respondents. More recent research involving SSSIs on common land found that the use of the section 28 provisions is now extremely rare: see qualitative research data at http://commons.ncl.ac.uk/casestudies (AHRC research project AH/E510-310, Contested Common Land; Environmental Governance, Law and Sustainable Land Management c.1600-2006).
80. Currently Council Regulation (EC) 1698/2005, Oj [2005] L277/1, formerly Council Regulation (EC) 1257/1999, OJ [1999] L160/80. Most agri-environment schemes currently in force in England and Wales were approved under the 1999 Regulation.
81. See generally arts. 4 and 5, and Annex 111 of Council Regulation 1782/2003, OJ [2003] L 270/1 (the “2003 Horizontal Regulation” imposing common rules for the payment of the single farm payment).
82. See J. Dwyer et al, Cross Compliance under the Common Agricultural Policy: a report to the Department of the Environment, Transport and the Regions (Institute for European Environmental Policy, 2000); M. Cardwell, The European Model of Agriculture (Oxford 2003), at 246-252.
83. “The philosophy underpinning the environmental aspects of the CAP reforms is that farmers should be expected to observe basic environmental standards without compensation. However, where society demands that farmers deliver an environmental service beyond the base line level, this service should be specifically purchased through the agri-environment measures”: Directions Towards Sustainable Agriculture, COM (1999) 22 Final at para 3.2.1.
84. Indicators for the Integration of Environmental Concerns into the Common Agricultural Policy, COM (2000) 20 Final. The implications of the Agenda 2000 reform of agriculture policy for property rights theory is considered further in an earlier article: see C.P. Rodgers, “Agenda 2000, Land Use and the Environment: Towards a Theory of Environmental Property Rights?” in J. Holder and C. Harrison (eds.), Law and Geography (Oxford, 2003), pp.239-258.
85. Art 174.2 EC Treaty. See generally M. Cardwell, “The Polluter Pays Principle in European Community Law and its Impact on UK Farmers” (2006) 59 Oklahoma Law Review 89, esp. at 101ff.
86. Environmental Stewardship (England) Regulations 2005, SI 2005/621, made under section 2(2) European Communities Act 1972 and section 98 Environment Act 1995. Environmental Stewardship is administered by Natural England.
87. SI 2005/621, reg, 3, Detailed prescriptions are set out in the Schedule to the 2005 regulations, with basic prescriptions for ELS agreements in Schedule 2 Part 2 and more advanced prescriptions for inclusion in HLS agreements in Part 3 of Schedule 2.
88. See reg. 5 (2) (ELS), 5(3) (OELS), and also reg. 5(4) in relation to HLS obligations to be included in the agreement.
89. Schedule 3 paragraph 1. For the definition of “conventional land” see reg. 2 (”agreement land which is not organic land”). In relation to land within the less favoured area (for example upland semi-natural grazing), and which comprises all or part of a parcel of at least 15 hectares, the target is only 8 points per hectare.
90. Harris, above n.12, at 37.
91. Unless he chooses not to claim the single farm payment, in which case the cross compliance conditions will not apply to constrain his land management decisions.
92. Calabresi and Melamed, above n.19, 1092-1093,1106-1110.
93. See generally, for instance, R. Griffin., “Welfare and Institutional Choice” (1991) 73 American Journal of Agricultural Economics 601.
94. See for example B. Colby, “Bargaining over Agricultural Property Rights” (1995) 77 American Journal of Agricultural Economics 1186.
95. Wildlife and Countryside Act 1981, section 28E (3) as amended Sched. 9 Countryside and Rights of Way Act 2000.
96. See further Colby, above n. 89.
97. See Waldron, above n.2 at 327-333.
98. Waldron, above n.2, 342.
99. I.e. notified as OLDs to the owner or occupier in the site notification. See Wildlife and Countryside Act 1981 section 28E (England and Wales), and Nature Conservation (Scotland) Act
100. 2004 section 16 (Scotland).
101. Represented by the statutory conservation bodies, i.e. Natural England, the Countryside Council for Wales or Scottish Natural Heritage (above n.36).
102. Although they may acquire a right to enter the land and carry out works of conservation management in limited circumstances-principally when the owner has failed to comply with a management order made under section 28J of the 1981 Act. If the owner or occupier of the land concerned fails to comply with the terms of a management order the conservation body can enter the land to carry out the operations ordered themselves, and recover the reasonable cost of doing so from the owner: section 28P(8) Wildlife and Countryside Act 1981.
103. As to which see Waldron above n.2, 329-339; Lucy and Mitchell, above n.17, at 580ff.
104. Wildlife and Countryside Act 1981, section 28E(1), (4), as inserted by Sched. 9 Countryside and Rights of Way Act 2000; Nature Conservation (Scotland) Act 2004, section 16(1)-(3). The 1981 Act provides for a “closed” consultation between the conservation body and the landowner in these cases, with no provision for the public to be notified of the proposal or consulted as to whether consent should be granted.
105. See Gray and Gray, above n.17, esp. at 18-20.
106. Waldron, above n.2, 348.
107. Gray and Gray, above n.17, at 18ff. uses the broad concept of “quasi public property” to describe the gradations of public control of access and use of resources prevalent in modern legislation.
108. See W. Blackstone, Commentaries on the Laws of England (repr. Chicago 1979), vol. II, p.2.
109. Above n. 12.
110. Above n. 19.
111. For example those in a management scheme or management notice, or in a land management order imposed by the conservation bodies on SSSI land (as to which see the Wildlife and Countryside Act 1981, section 28J; Nature Conservation (Scotland) Act 2004 section 30).