The Law of the Commons: Climate Change Protest in Buckfastleigh

by Lucy Finchett-Maddock, Mothiur Rahman and Isabel Carlisle | 23 Oct 2013

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 MVV wanted 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 by BCF.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 of NPPF 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 MVV have 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 the USA,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.community.buckfastleigh.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://pollyhiggins.com/.
14
See ‘Community Environment Legal Defense Fund’, at http://www.celdf.org/section.php?id=423.
15
See Falkirk’s Community Charter, at http://www.faug.org.uk/campaign/community-charter.
16
See ‘Planning Inquiry Daily’, http://planninginquirydaily.wordpress.com/.
17
See http://www.faug.org.uk/campaign/community-charter.
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/forests/Carta.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’).

3 Comments

Sandy on 23 October 2013 at 8:07 pm
An exciting piece of writing which made the reader feel involved, as so poetically written at times, hence when reading the successful outcome one felt exhilerated, which is not the norm when researching !
Reply
Elena on 24 October 2013 at 9:32 am
Great politically informed piece. Thank you all for this.
Reply
Ken on 25 March 2021 at 10:14 am
Nice Article! Very encouraging!
Reply