by Lucy Finchett-Maddock, Mothiur Rahman and Isabel Carlisle

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’.