Britain’s natural environment is depleted and, despite nascent government schemes to manage the land differently, struggling to recover from centuries of destruction – plus more recent threats like climate change. What if the biggest obstacles to its recovery are the people we have entrusted to look after it?

Author and green campaigner Guy Shrubsole’s latest book, The Lie of the Land: Who Really Cares for the Countryside? argues for a radical reappraisal of property rights to democratise how land is held and used in England and Wales. You might remember Shrubsole from his writing on “the lost rainforests of Britain”, a topic he explored in an earlier book.

He begins The Lie of the Land by presenting the version of property rights to which English law has become wedded over the last 200 years, that allows the freehold owner of land to enjoy unrestricted and absolute rights to its natural resources.

This is sometimes referred to as ius abutendi, meaning the right to use and destroy, and is derived from ancient Roman law. In this very simple notion of the absolute rights of property, there is no room for obligations.

It is a theory of property rights out of step with modern priorities – especially the need for action to address climate change and to prevent further biodiversity loss. The owner of land arguably does have a duty to society to steward its resources for the common good – protecting wildlife, landscape features and biodiversity.

Stewards of the countryside?

Much of Shrubsole’s analysis concerns this tension between the freedom of property owners and the pressing need to restore our ailing natural environment. The concept of stewardship, and the way in which this idea is used and abused, runs throughout the book.

Large landowners have used their self-proclaimed role as “stewards of the countryside” to deflect attention from the environmental damage that their activities cause, Shrubsole says. Grouse moors are one example he details.

Across more than a million acres, moorland is repeatedly burned to produce plants for young grouse to eat before they are shot. The cost to rare birds, that are sometimes illegally killed instead, and the climate – since heather burning disturbs peat which is one of the country’s best carbon stores – is thought to be severe.

What kind of “stewardship” is this? And who are landowners stewarding the land for? As Shrubsole argues, the kind of stewardship presented by landed interest groups such as the Game and Wildlife Conservation Trust is often incongruent with what the wider public would consider sound management.

And in any case, most of these obligations are at best self-imposed, voluntary, or self-regulatory. The few legally enforceable stewardship obligations that exist in English law are to be found in public law – such as restrictions on land management in sites of special scientific interest, or on heather burning on grouse moors and on pheasant breed and release pens.

But even these legally enforceable obligations depend on robust monitoring and enforcement for their effectiveness. And Shrubsole argues, with well researched examples, that this is rarely the case. Too much is left to the self-reporting of landowners, and the public agencies charged with enforcing environmental law have too few resources and not enough manpower to effectively monitor their activities.

The private property myth

In Shrubsole’s eyes, the greatest “lie of the land” is the idea that you have to own land to care for it. In other words, that private property is the only way that people can steward the land and care for its long-term benefit.

He makes a case for modelling land reform in England and Wales on the Scottish system, where a public right to access all freehold land is enshrined in law. The advantage here is twofold: more eyes and ears monitoring what is happening on private land and a chance to reconnect people and nature.

In a chapter titled “nature’s whistle-blowers”, Shrubsole challenges the argument that greater public access to the countryside would simply damage wildlife habitats and landscapes. More public access and more scrutiny of what is going on within private estates could be a powerful tool, he argues, to ensure that the few legal obligations on landowners to protect nature are observed.

This echoes American political scientist Elinor Ostrom, whose research championed common pool resources such as grazing meadows, woods and fishing grounds. Her groundbreaking work showed that private property rights are not essential for the collective use and protection of natural resources. This could have been explored, as her insight would add additional weight to Shrubsole’s case for a more collective approach to the use and management of land and its resources.

The Lie of the Land should be read by anyone with an interest in Britain’s rural environment. Some of the proposals in Shrubsole’s concluding ten-point manifesto for realigning property rights with the protection of nature will be widely regarded as controversial.

One is his suggestion that we should carry out an “ecological Domesday survey”, requiring all landowners with more than 1,000 acres to tell us how they are helping to sequester carbon, restore natural habitats and aid wildlife recovery over the next five years.

Whether ideas like this stand a chance of implementation is not the issue: the fact that they have been so powerfully argued, and supported by such detailed research, should be enough to move the debate forward.

Christopher Rodgers, Professor of Law, Newcastle University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Latest News