The Symbiosis of Property and English Environmental Law – Property Rights in a Public Law Context

AuthorRachael Walsh,Eloise Scotford
Publication Date01 November 2013
The Symbiosis of Property and English Environmental
Law – Property Rights in a Public Law Context
Eloise Scotford*and Rachael Walsh**
This article argues that environmental regimes entailing considerable administrative discretion are
now serving to contextualise and partly to constitute property rights in English law. In particular,
rights to use land are ‘democratised’ to varying degrees through the administration of environ-
mental regulation, and are adapted to land-use problems on an evolving basis. In return, property
rights affect environmental regulation, through legal protections for property interests, although
the nature of the discretion exercised within environmental regimes seems to determine the kind
and extent of this symbiotic influence. As a result, environmental law challenges property scholars
to reflect on the impact of administrative decision-making on property rights, conceptually,
doctrinally and in terms of its legitimacy. At the same time, environmental lawyers need to take
seriously the nature and legal treatment of property rights in the application and analysis of
modern environmental law.
This article argues that there are significant symbiotic connections between
property rights and environmental regulation in English law. This is a relatively
underexplored area of legal scholarship,1of particular contemporary relevance to
*Lecturer, King’s College London. We would both like to thank Hanoch Dagan for very helpful
comments on an earlier (and quite different) draft of this article, which was presented at a sympo-
sium on ‘The Interface of Public and Private Law Concepts of Property’ at King’s College London
in June 2012. Our thanks also go to the anonymous referees who provided thought-provoking
comments. I am also very grateful to the Faculty of Law, University of Sydney, for hosting me
whilst I was on research leave, working on the final versions of the article. Any errors or oversights
remain our own.
**Assistant Professor, Trinity College, Dublin. In addition to the thanks expressed above, I am grateful
to King’s College London, where I worked on an early draft of this paper.
1 Although some scholars writing about English law have produced deeply thoughtful work in this
area. See eg S. Coyle and K. Morrow, The Philosophical Foundations of Environmental Law: Property,
Rights and Nature (Oxford: Hart Publishing, 2004); R. Walsh, ‘The Evolving Relationship
Between Property and Participation in English Planning Law’ in N. Hopkins (ed), Modern Studies
in Property Law, Volume 7 (Oxford: Hart Publishing, 2013); W. N. R. Lucy and C. Mitchell,
‘Replacing Private Property: The Case for Stewardship’ (1996) 55 CLJ 566; K. Gray, ‘Can
Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 EPLJ
161 and ‘Pedestrian Democracy and the Geography of Home’ (2010) 1 JHRE 45; C. Rodgers,
‘Nature’s Place? Property Rights, Property Rules, and Environmental Stewardship’ (2009) 68
CLJ 550. The relationship between environmental law and property rights has also received
extensive academic attention in the US context: see eg D. W. Large, ‘This Land is Whose Land?
Changing Concepts of Land as Property’ (1973) Wis L Rev 1039; D. B. Hunter, ‘An Ecological
Perspective on Property: A Call for Judicial Protection of the Public’s Interest in Environmentally
Critical Resources’ (1988) 12 Harv Envtl L Rev 311; J. A. Humbach, ‘Law and a New Land Ethic’
(1989–1990) 74 Minn L Rev 339; E. T. Freyfogle, ‘Owning the Land: Four Contemporary
Narratives’ (1997–1998) 13 J Land Use & Envtl L 279; L. Butler, ‘The Pathology of Property
Norms: Living Within Nature’s Boundaries’ (1999–2000) 73 S Cal L Rev 927; C. A. Arnold,
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(6) MLR 1010–1045
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
property and environmental lawyers alike. We argue that this legal symbiosis, or
‘mutualism’,2is driven by the accelerating scale and significance of environmen-
tal regulation in controlling the use and management of land, which has seen the
introduction of a wide range of administrative controls and innovative regulatory
strategies, involving ever more complex administrative systems for environmen-
tal assessment, industrial permitting, land-use development planning and nature
conservation. This article argues that these systems provide a vital, complex
mechanism for mediating the symbiotic relationship between property rights
and environmental regulation, and are an important site for the definition of
the scope of property rights. As a result, property lawyers must take seriously
environmental regimes and their public law dimensions, just as environmental
lawyers must engage with the doctrinally and theoretically rich property law
landscape within which environmental controls operate. Furthermore, this sym-
biosis is informed by a range of legal issues and doctrines – including those of
nuisance law, public law and human rights law – which are implicated by the
interaction of property rights and environmental regulation, raising novel nor-
mative questions about the role that these different areas of law should play in
informing each other. Whilst this article is not a comprehensive appraisal of all
legal aspects of the interrelationship of property rights and environmental regu-
lation, it seeks to demonstrate that property law and environmental law are
connected in significant, constitutive ways, which can be seen in developments
across a range of legal sub-disciplines.
This article focuses on two aspects of the interactive and evolving relationship
between property rights and environmental law that demonstrate its symbiotic
nature.3First, it considers how property rights relating to the use of land are
shaped by environmental regulation that controls land-use. In essence, we
contend that such property rights are partly constituted by the administrative
regimes that implement and underlie applicable environmental regulation,
insofar as those regimes determine when, and to what extent, those with
property rights in land can freely control its use. Since much environmental
regulation is determined and enforced through administrative officials exercising
legally structured discretion, understanding the impact of environmental law on
property rights is now largely concerned with understanding public law devel-
opments at the administrative level. However, the legal influence is not all
one-way. The article also reflects on a second aspect of the relationship between
‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harv Envtl L
Rev 281.
2 F. Philbrick, ‘Changing Conceptions of Property in Law’ (1938) 86 Univ of Penn L Rev 691, 695.
3 The relationship is in fact developing and manifesting in a number of ways. Thus, rights
constructed in the regulation of environmental problems are increasingly recognised as having
‘property-type’ attributes, eg legally constructed ‘allowances’ under the EU emissions trading
scheme (Deutsche Bank AG vTotal Global Steel Ltd [2012] EWHC 1201 (Comm); [2012] Env LR
D7); ‘renewable energy certificate’ (ROC) entitlements under feed-in-tariff schemes (R (Infinis
Plc) vGas and Electricity Markets Authority [2011] EWHC 1873 (Admin); and even the granting of
planning permission (Pine Valley Developments Ltd vIreland (1992) 14 EHRR 319). Controversies
about the existence of property rights are also triggered by environmental regulation: see eg T.
Rule, ‘A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights’ (2009)
46 San Diego L Rev 207.
Eloise Scotford and Rachael Walsh
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. 1011
(2013) 76(6) MLR 1010–1045
environmental law and property rights, by considering how the legal protection
of property rights mediates the impact of environmental law on such rights,
particularly through the law of private nuisance and the Human Rights Act
1998, and through the participatory structures that give property right-holders a
distinctive voice in land-use decisions. In the application of these legal doctrines
and controls, property rights in turn impact upon environmental regimes.
In order to show and analyse this symbiotic relationship between environ-
mental regulation and property rights in land, the article first establishes how
environmental law sets up important sites of interaction with property rights and
why this intersection is unique, in light of the special nature of the resources, and
land in particular, to which environmental regulation relates.4Second, the article
considers in detail the ‘regulatory turn’ that has seen the introduction of ever-
evolving administrative regimes to control activities on land in England. This
section considers three regimes: the pollution control regime under the
Environmental Permitting Regulations 2010, local development planning
control, and the nature conservation regime for Sites of Special Scientific
Interest. These regimes provide spaces in which competing interests concerning
land-use – individual, interest group-focused, community-driven – are consid-
ered through legally directed administrative processes that provide significant
opportunities for participation in land-use decision-making. This results in indi-
rectly ‘democratised’ land-use decisions, which have significant implications for
the scope of land-use rights.
In particular, it can be argued that the more administrative processes for
making land-use decisions take into account a range of interests and expert views
alongside politically determined policies and other relevant considerations, the
more influence environmental regulation will have on the constitution of prop-
erty rights. This effect can be seen in the third section of the article, which
explores the mutual impact of property rights and administrative decisions on
legal doctrine. This interrelationship can be seen in analysing private nuisance
cases, and also in cases involving legal checks on incursions into private property
rights, arising through the application of the Human Rights Act 1998 and
through traditional common law principles of statutory interpretation. Such cases
show how property rights can be contextually shaped and re-shaped over time
through the administration of environmental regulation. They also show how
environmental law is itself symbiotically informed, and in some cases con-
strained, by the legal protection of property rights.
Finally, and in light of the doctrinal examples explored, the article reflects on
the nature of property rights when they interact with environmental regulation.
In particular, it considers the relatively unexplored question of how administra-
tive decision-making processes impact upon the content of property rights, in
this case in relation to the use of land. The final section identifies a dynamic
4 We do not argue that environmental law is the sole regulatory influence that shapes property
rights. A range of regimes can inform the scope and nature of property rights in land, including
tenant protection measures and pension provisions. See eg James vUnited Kingdom (1983) 5
EHRR 440; Public and Commercial Services Union vMinister for the Civil Service [2011] EWHC 2041
Property and English Environmental Law
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited.
1012 (2013) 76(6) MLR 1010–1045

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