The Law of the Commons: Climate Change Protest in Buckfastleigh

by Lucy Finchett-Maddock, Mothiur Rahman and Isabel Carlisle

Chirag, David and Hannah supporting Buckfastleigh Community Forum
Chirag, David and Hannah supporting Buckfastleigh Community Forum

First published at ‘Critical Legal Thinking’ on 23 October 2013 – http://criticallegalthinking.com/2013/10/23/law-commons-climate-change-protest-buckfastleigh/

On Thursday 17 Octo­ber the com­munity of Buck­fastleigh, South Devon, heard the fate of their town, their live­li­hoods, the pro­tec­tion of their imme­di­ate envir­on­ment and sur­round­ing eco­sys­tems, presen­ted to them in the much awaited decision of a plan­ning appeal inquiry that took place over the heat of the sum­mer, 25 June – 19 July 2013.1 The plan­ning inquiry was an appeal made under sec­tion 78 of the Town and Coun­try Plan­ning Act 1990, to a pre­vi­ous decision on behalf of the local Devon County Coun­cil (DCC) who refused plan­ning per­mis­sion for MVV Envir­on­ment Devon­port Ltd to use the local White­cleave Quarry for their indus­trial pur­poses.2 MVVwanted to use the quarry as a ‘facil­ity for inert con­struc­tion and demoli­tion waste’ and to build an ‘incin­er­ator bot­tom ash (IBA) pro­cessing facil­ity’. Both of these would have involved ash and waste being trans­por­ted through the town itself, given the site of the quarry lying within Buck­fastleigh Par­ish Bound­ary and the lor­ries need­ing access to the nearby trunk road between South Devon and Corn­wall. The town’s inhab­it­ants, along­side local eco­sys­tems, would have been threatened by toxic waste particles accu­mu­lat­ing from blast­ing; and noise, water and air pol­lu­tion adding to this pol­lu­tion com­ing from con­struc­tion and demoli­tion as well as the lor­ries and their ash and dust clouds through trans­port­a­tion. The quarry itself, adjoin­ing the south­ern bound­ary of Dart­moor National Park, is just west of an Area of Great Land­scape Value (AGLV), part of the site near to its south­ern bound­ary lying within a Site of Spe­cial Sci­entific Interest (SSSI), Buck­fastleigh caves SSSI being the home to the endangered greater horse shoe bats. The heart of Buck­fastleigh itself is a des­ig­nated Con­ser­va­tion Area, encom­passing Orch­ard Mil­len­nium Green, a nom­in­ated com­mons with the fam­ous River Dart run­ning nearby which is a migrat­ory route for sal­mon swim­ming upstream.3

To any reader, the present­a­tion of the facts would auto­mat­ic­ally bel­low envir­on­mental harm as well as social and eco­nomic vul­ner­ab­il­ity, not least health costs for the local com­munity, a town already quar­ter­ised by the con­struc­tion of the A38 ‘West Coast High­way’ right through its middle, los­ing their mar­ket and ren­der­ing the centre a quiet and dormant place, preg­nant with the busy­n­ess of afflu­ent times past. Des­pite the appar­ent spec­tral atmo­sphere of Buck­fastleigh, there is a viva­cious and out­spoken com­munity who organ­ised them­selves impec­cably in their fight against the pro­posed IBA. They set up the ‘Buck­fastleigh Com­munity Forum’ (BCF)4 as well as other groups such as ‘Buck the Trend’ as far back as 2008 when the applic­a­tion to re-​appropriate the quarry first began, to voice their objec­tion in a pre­pared and potent man­ner. As a res­ult of ded­ic­ated and informed legal-​policy work of BCF, there stood not just the legal teams and rep­res­ent­at­ives of MVV and DCC at the plan­ning inquiry in those sul­try sum­mer days in Buck­fastleigh Town Hall, but also a third party — BCF rep­res­en­ted by the leg­ally trained Mayor of Buck­fastleigh, Julie Wilton, along­side the accom­plished per­form­ance of bar­ris­ter Charlie Hop­kins instruc­ted byBCF.5 BCF par­ti­cip­ated in the Inquiry as a Rule 6(6) party allow­ing them to voice their objec­tion to the pro­posed devel­op­ment as part of Inquiry Plan­ning Pro­ced­ures,6 under­pinned by fun­da­mental pro­ced­ural val­ues allow­ing mech­an­isms of fair­ness in the func­tion­ing of pub­lic bod­ies in the reach­ing of its decisions.7

Through­out those four weeks from 25 June to 19 July, BCF was fully aware that how­ever force­ful and intric­ately presen­ted their evid­ence against the devel­op­ment, The Inspect­or­ate can­not decide upon the suc­cess of a pro­posal based on local oppos­i­tion alone.8 Nev­er­the­less, the Plan­ning Inspect­or­ate was required to con­sider the con­cerns of the local com­munity under the plan­ning object­ives of national waste policy,9 upheld by the National Plan­ning Policy Frame­work (NPPF) and its oblig­a­tions to strengthen local decision mak­ing.10 To a great leap of joy and sim­ul­tan­eous com­munal sigh of relief from BCF, on Thursday 17 Octo­ber the appoin­ted Plan­ning Inspector (John Wool­cock) deemed the pro­posed site to be fall­ing short ofNPPF advice regard­ing sus­tain­able waste man­age­ment, the costs to biod­iversity and the local com­munity out­weigh­ing the bene­fits of com­mer­cial devel­op­ment as a res­ult of the re-​use of the quarry.11 On its mer­its in law, the appel­lant did not demon­strate that the facil­ity would not under­mine national waste plan­ning strategy, and thus the pro­posed devel­op­ment did not rep­res­ent sus­tain­able devel­op­ment to which the pre­sump­tion in favour set out in the NPPF would apply.12

The story of Buck­fastleigh is a spe­cial one. The amount of funds raised to hire an exper­i­enced advoc­ate, the sup­port and char­ity of the local com­munity given to solder the BCF together, were extraordin­ary and remark­able even to someone just sit­ting in the inquiry as an impar­tial observer. Pen­sion­ers and tod­dlers alike came troop­ing in in their orange jer­seys, the col­our chosen by the no-​IBA cam­paign; win­dows strewn with orange flags in each of the houses lead­ing up to the inquiry. The exact amount raised for the bar­ris­ter and addi­tional expenses was sub­stan­tial (the costs by MVVhave been applied for and will be dealt with in a sub­sequent decision). The com­munity under­took a peti­tion over the sum­mer in 2013 whereby the stat­ist­ics declared 95% of the com­munity were against MVV’s pro­posed use of the quarry. This was on top of Buck­fastleigh Town Coun­cil com­mis­sion­ing a Par­ish Poll car­ried out in March 2012 which had a turnout of 50% and res­ul­ted in 1,367 votes against, and 73 in favour, of White­cleave Quarry being used for any hand­ling, pro­cessing or stor­age of indus­trial waste and an IBA. What BCF essen­tially did was to garner them­selves in a man­ner that was appeal­ing to the author­it­ies, present­ing them­selves and advoc­at­ing for them­selves with a range of both local and expert wit­nesses, sci­entific evid­ence they had gathered, backed up by an emotionally-​charged and incensed com­mon feel­ing that mani­fes­ted itself in a con­cise and pro­voc­at­ive legal argu­ment com­manded by Hop­kins. Not just that but BCF had reached out to local envir­on­mental NGOs and insti­tu­tions, aca­dem­ics and act­iv­ists alike, call­ing on the sup­port and expert­ise of the well-​known envir­on­mental bar­ris­ter Polly Hig­gins,13 envir­on­mental edu­ca­tion­al­ist Isa­bel Carl­isle and non-​practicing plan­ning law­yer and mem­ber of the ‘Earth Law Alli­ance’, Mothiur Rahman.

Draw­ing inspir­a­tion from the ‘Com­munity Bill of Rights’ movement in theUSA,14 as well as the town of Falkirk in Scot­land where Isa­bel and Mothiur have been work­ing with the people in cre­at­ing its own ‘Com­munity Charter’,15 BCF under­stood the need to gather them­selves in a present­able and author­it­at­ive man­ner before The Inspect­or­ate. In this instance, they stopped short of a rights-​based doc­u­ment, and yet the neces­sity to use law for its own ends was quite clear with the hir­ing of Charlie as their voice, along­side the immacu­late note-​taking skills and ded­ic­a­tion given by five top of the class law stu­dents from Exeter Law School (Chirag Patel, David Kan­hai, Han­nah Cameron, Chris Kientz­ler and Kate Hard­ing). The stu­dents cre­ated and updated a very inform­at­ive blog record­ing the events of the inquiry that allowed the cam­paign to have real-​time effect out­side of the Town Hall, along­side act­ing as another tac­tic demon­strat­ing the level of pre­pared­ness of BCF to the oppos­i­tion.16 The stu­dents were actu­ally sourced through Isa­bel get­ting in touch with Exeter Law School and see­ing how both act­iv­ist and aca­demic resources could help the Buck­fastleigh cause.

Buck­fastleigh is spe­cial, although the use of com­munity charters rep­res­ents an inter­est­ing theme that runs through cli­mate change act­iv­ism, and indeed act­iv­ism in gen­eral. In what ways is the insti­tu­tion of law used, if at all, in tac­tics of dis­sent and how does this alter depend­ing on where and how oppos­i­tion is enacted? In the case of BCF, there is a clear use of the courtroom, an admir­a­tion for law that seeks to over­come pos­it­ive law’s injustices through its own etiquette of pomp and convention. A plan­ning inquiry that would nom­in­ally be of paint-​drying tedi­ous­ness, became a stage, a the­at­rical inter­weav­ing of jur­istic skill. If the plan­ning appeal had been upheld, Buck­fastleigh was to be used as a poten­tial test case for ‘eco­cide’ by Hig­gins and her alli­ances, impel­ling the lan­guage of inter­na­tional law into a small com­munity hall to a level more spec­tac­u­lar than the usual plan­ning rhet­oric; thank­fully hav­ing to use eco­cide as an argu­ment is not some­thing that will have to hap­pen given the dis­missal of MVV’s appeal.

Using the example of the com­munity charter of which Isa­bel, Mothiur and Polly speak, a rep­res­ent­a­tion of the val­ues and vis­ions of a com­munity in a ver­nacu­lar con­sti­tu­tion, is an extant applic­a­tion of the most fun­da­mental move­ment of law and res­ist­ance, that of con­stitu­ent power. The charters, as actu­al­ised by Falkirk for the first time in con­tem­por­ary UK, allow for a con­sti­tu­tion of the com­munity given legit­im­ate con­trac­tual force as the will of those who live in the given area, rep­res­ent­ing their ‘cul­tural her­it­age’, “which must be assessed under envir­on­mental reg­u­la­tions for all devel­op­ments which poten­tially threaten our ‘assets’”,17 in the words of Falkirk com­munity facing the onset of uncon­ven­tional gas extrac­tion. The Charter declares the sum total of a community’s intan­gible and tan­gible assets to be its ‘Cul­tural Her­it­age’ for assess­ment under the EU Envir­on­mental Impact Assess­ment Dir­ect­ive (EIA Dir­ect­ive).18 On 24 June 2013, Larbert, Sten­house­muir and Tor­wood Com­munity Coun­cil became the first elec­ted polit­ical body in the UK to adopt a com­munity values-​based doc­u­ment of the kind pro­posed by Mothiur and Isa­bel. Inter­est­ingly the Charter has already gained the atten­tion of the Scot­tish Green Party which, at their annual con­fer­ence in early Octo­ber, passed an emer­gency motion call­ing for an imme­di­ate morator­ium on uncon­ven­tional gas oper­a­tions, “applaud­ing the efforts of Falkirk Against Uncon­ven­tional Gas in devel­op­ing a Com­munity Man­date and a Com­munity Charter to pro­tect their com­munity”.19

What Mothiur et al. have also been con­sid­er­ing is the role of EIAs in giv­ing legit­im­acy to cer­tain qual­it­ies of com­munity which have the poten­tial to be assessed in the con­text of ‘cul­tural her­it­age’,20 accord­ing to the poten­tial of envir­on­mental rights as accor­ded as far back as the thir­teenth century.

With respect to these qual­it­ies, we are not just talk­ing about the civil and polit­ical rights as fam­ously laid down by the unhappy bar­ons who brought about the Magna Carta, but a nar­rat­ive of rights, prop­erty, resource use and social organ­isa­tion through its ‘lost’ cohort, the ‘Charter of the Forest’.21 The Magna Carta has become the very epi­tome of the uphold­ing of indi­vidual rights; the Charter of the Forest, how­ever, regarded more eco­nomic con­cerns and the notion of com­mon rights and respons­ible resource use. The ‘miss­ing charter’ pre­ceded the Magna Carta,22 stat­ing the basic eco­nomic rights prior to the polit­ical and civil rights of the Great Charter. The Lev­el­lers linked the Magna Carta to the concept of the nation,23 whereas the ‘lost charter’24 has been con­signed to the chat­tels of his­tory, very much like its sub­jects — the com­mon­ers and the com­mon fields. The divi­sion of the two charters demon­strates the extent to which envir­on­mental rights are dif­fi­cult to ima­gine, through the pre­ferred frame­work of indi­vidual rights. Burns Weston and Bol­lier of the ‘Com­mons Law Pro­ject’ describe a form of ‘Ver­nacu­lar Com­mons Law’,25 whereby the voices of those com­munit­ies and the envir­on­ment itself, can be given cogence in the face of an over­bear­ing indi­vidu­al­istic frame­work of law, and one increas­ingly manip­u­lated by private interests. By look­ing at the recent instances of ‘No Dash for Gas’ occu­pa­tion protests of West Bur­ton (No Dash for Gas now being involved in the Bal­combe protests) against the use of gas-​fired power sta­tions, versus the wield­ing of private law rem­ed­ies to ham­mer down cli­mate change protest on EDF sites, there may be an instance here of a ‘law of enclos­ure’ with recourse to private law sanc­tions to pro­tect their interests. To speak of a private law of enclos­ure is to come full circle, how­ever, as enclos­ure is the very act of nam­ing and cat­egory as epi­tom­ised by the Par­lia­ment­ary Enclos­ure move­ment from the fif­teenth cen­tury up until the Com­mons Act 1876; after that there was very little left then to enclose. The law of enclos­ure in this sense, is the law per se.

In the case of Buck­fastleigh and other com­munit­ies facing threats to their local eco­sys­tems in the future, find­ing ways to give legit­im­acy to the com­munity voice (in the case of Falkirk, through the use of com­munity charters) demon­strates a resid­ing belief in a lan­guage of leg­al­ity but without a hier­archy of indi­vidual rights over com­munal rights, and one that seeks to cater for the rights of the envir­on­ment; a ver­sion of con­sti­tu­tion­al­ism remin­is­cent of the lost charter itself. By allow­ing for a col­lect­ive legit­im­acy, per­haps these com­munit­ies are seek­ing to per­form their com­mon rights, a form of ver­nacu­lar com­mon law, through either embra­cing the insti­tu­tional forum of an inquiry, or writ­ing their power into a doc­u­ment that pro­tects both those val­ues that are tan­gible and pro­prietral, and indeed those that are not. Inter­est­ingly, the ambigu­ous role of law as tac­tic and law as decider is evid­ent even in the inclu­sion of Rule 6 (6) parties in plan­ning rules of pro­ced­ure, almost a nod to a right of res­ist­ance, the extra-​legal of law that allows for the remainder to oper­ate at all. This has not least been enhanced by the pre­sump­tion of sus­tain­ab­il­ity and loc­al­ism within plan­ning con­sid­er­a­tions and the inter­est­ing invit­a­tion of qual­it­at­ive com­pli­ance (rather than just pro­ced­ural com­pli­ance) poten­tially com­ing into con­cepts of pub­lic con­sulta­tion and par­ti­cip­a­tion in EU law,26 all pos­it­ive infilt­ra­tions of com­munal val­ues, if allowed to be read widely enough.

It is with great hap­pi­ness to report the vic­tory for the people of Buck­fastleigh, the col­lect­ive aspir­a­tions of a group were pro­tec­ted and recog­nised in a famil­iar David and Goliath-​like battle where private com­mer­cial interests are increas­ingly expec­ted to take pre­ced­ence over any­thing else. In this instance the law of the com­mons has won over the law of enclos­ure, and may there be many, many more vic­tor­ies to come.

Lucy Finchett-​Maddock is Lec­turer in Law, Uni­ver­sity of Sussex, Isabel Carlisle, environmental educationalist and Mothiur Rahman, planning lawyer and member of ‘Earth Law Alliance’.

  1. Appeal Ref: APP/​J1155/​A/​12/​2185633. 
  2. Teign­bridge Dis­trict Coun­cil Applic­a­tion No:11/02685/DCC, Devon County Coun­cil Ref.DCC/3242/2011 8 July 2011, refused by notice dated 3 May 2012. 
  3. Appeal Decision, 17 Octo­ber 2013, 4. 
  4. See http://​www​.com​munity​.buck​fastleigh​.org/
  5. Assisted by the sup­port and com­mit­ment of stu­dents from Exeter Law School (Chirag Patel, David Kan­hai, Han­nah Cameron, Chris Kientz­ler and Kate Hard­ing). 
  6. The Town and Coun­try Plan­ning (Inquir­ies Pro­ced­ure) (Eng­land) Rules 2000; The Town and Coun­try Plan­ning Appeals (Determ­in­a­tion by Inspect­ors) (Inquir­ies Pro­ced­ure) (Eng­land) Rules 2000; The Town and Coun­try Plan­ning (Enforce­ment) (Determ­in­a­tion by Inspect­ors) (Inquir­ies Pro­ced­ure) (Eng­land) Rules 2002; The Town and Coun­try Plan­ning (Enforce­ment) (Inquir­ies Pro­ced­ure) Rules 2002 (in these Rules it is Rule 8(6)). 
  7. See the clas­sic R (Alcon­bury Devel­op­ments Ltd) v Sec­ret­ary of State for the Envir­on­ment (May 9 2001) (2001) 2 WLR 1389, plan­ning pro­ced­ures and the applic­a­tion of Art­icle 6 (1) (right to a fair trial) under European Con­ven­tion of Human Rights, as enshrined in the Human Rights Act 1998. 
  8. The Plan­ning Sys­tem: Gen­eral Prin­ciples ODPM 2005. 
  9. PPS10 para 3. 
  10. National Plan­ning Policy Frame­work Annex 1: Imple­ment­a­tion. 
  11. PPS10, para 25. The Inspect­or­ate also state that the devel­op­ment would fall short of NPPF PPS10 para 100 regard­ing threat of flood­ing. 
  12. Appeal Decision, 17 Octo­ber 2013, 26. 
  13. Polly is cur­rently advoc­at­ing the inclu­sion of ‘eco­cide’ as a crime against peace in inter­na­tional law — see http://​pol​ly​hig​gins​.com/
  14. See ‘Com­munity Envir­on­ment Legal Defense Fund’, at http://​www​.celdf​.org/​s​e​c​t​i​o​n​.​p​h​p​?​i​d​=​423
  15. See Falkirk’s Com­munity Charter, at http://​www​.faug​.org​.uk/​c​a​m​p​a​i​g​n​/​c​o​m​m​u​n​i​t​y​-​c​h​a​r​ter
  16. See ‘Plan­ning Inquiry Daily’, http://​plan​ningin​quiry​daily​.word​press​.com/. 
  17. See http://​www​.faug​.org​.uk/​c​a​m​p​a​i​g​n​/​c​o​m​m​u​n​i​t​y​-​c​h​a​r​ter
  18. Dir­ect­ive 85/​337/​EEC as amended and now con­sol­id­ated and codi­fied into Dir­ect­ive 2011/​92/​EU (known as ‘Envir­on­mental Impact Assessment’ – EIA Dir­ect­ive). 
  19. Com­munity Coun­cils are the most local tier of stat­utory rep­res­ent­a­tion in Scot­land under the Local Gov­ern­ment (Scot­land) Act 1973 (as amended), com­pris­ing of elec­ted volun­teers from the com­munity. 
  20. In rela­tion to this, it is inter­est­ing to note that the EIA Dir­ect­ive is in the pro­cess of being amended, and that the Com­mis­sion pro­posal, agreed to by the recent ‘Zan­oni Amend­ments’, included the fol­low­ing new recital: “Pro­tec­tion and pro­mo­tion of cul­tural her­it­age … can use­fully build on defin­i­tions and prin­ciples developed in rel­ev­ant Coun­cil of Europe Con­ven­tions, in par­tic­u­lar … the Frame­work Con­ven­tion on the Value of Cul­tural Her­it­age for Soci­ety (report on the pro­posal for a dir­ect­ive of the European Par­lia­ment and of the Coun­cil amend­ing Dir­ect­ive 2011/​92/​EU of the assess­ment of the effects of cer­tain pub­lic and private pro­jects on the envir­on­ment (COM(2012)0628 – C7-​0367/​2012 – 2012/0297(COD)). 
  21. See ‘The Charter of the Forest, at http://​info​.sjc​.ox​.ac​.uk/​f​o​r​e​s​t​s​/​C​a​r​t​a​.​htm
  22. Line­baugh, P. (2008), ‘The Magna Carta Mani­festo: Liber­ties and Com­mons for All’, Berke­ley, Uni­ver­sity of Cali­for­nia Press, at 269. 
  23. Ibid, 81. 
  24. Ibid, 93. 
  25. Com­mons Law Pro­ject, 2013, ‘Ima­gin­ing a New Archi­tec­ture of Law and Policy to Sup­port the Eco­lo­gical Com­mons’, at http://commonslawproject.org/sites/default/files/Regenerating%20Essay,%20Section%20V.pdf 
  26. See pro­posed new Recital 3(a) to the EIA Dir­ect­ive, adop­ted by the European Par­lia­ment on 9 Octo­ber 2013 on the Com­mis­sion Pro­posal to amend the EIA Dir­ect­ive (the so-​called ‘Zan­oni Amend­ments’).