85 

The Denning Law Journal 2018 Vol 30 pp 85-116 

 

COMMUNITY PROPERTY CLAIMS IN THE 

PERSONHOOD PERSPECTIVE: PART 2 
 

Natalie Pratt 
 

1 INTRODUCTION 
 

This is the second instalment of a two-part article series aimed at 

examining community property claims through the lens of the personality 

theory of property. The overarching aim of these two articles is to expose 

the imbalance between communal and private property arrangements by 

justifying communal property claims through the use of the personality 

theory of property (also referred to as ‘property and personhood’, or the 

‘personhood perspective), which is traditionally used to justify private 

property claims. It is argued that if a community of users can establish a 

claim within the personhood perspective, that claim should be treated with 

the same respect as a private property claim founded through the same 

mechanism. Where competing claims to natural resources exist (with a 

specific focus on land), it should not always be the private property claim 

of an individual landowner that takes priority when the other claimant is a 

community of users. If both claims can be justified through the same 

mechanism, both should be treated with equal weight and consideration.  

It will be remembered from part I that the Hegelian and neo-Hegelian 

conceptions of the personhood theory were introduced. In particular, the 

work of Professor Radin was explored. Radin presented a theory in which 

a fully constituted person projects his personality into the world and 

embodies their will and personality in external objects. The property 

relationships that arise from the projection allow the individual to express 

himself in the outside world. Radin’s formulation of the personhood 

theory is labelled as an ‘intuitive view’, and suggests that people possess 

objects that they feel are almost part of themselves because they 

“constitute ourselves as continuing personal entities in the world”.1  In 

order to differentiate between those property claims that originate from 

the binding of ones personality with an object, and those that derive from 

                                                      
 Teaching Fellow, Dickson Poon School of Law, King's College London. 
1 MJ Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957, 

959.  



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purely instrumental means, a personal/fungible dichotomy of property 

claims was introduced.  

It was noted in part I that the traditional role of a community in the 

personality theory of property is to act as an audience to property claims. 

In order to elevate the community to a position from which it can project 

its will into external objects requires a fundamental change in the way that 

society views a group, and also the inner workings of a group. In 

particular, the group must adopt one collective will that can be projected 

into the external world, rather than consisting of a collection of disparate 

and conflicting wills. Professor Waldron did not feel that such a change 

was an insurmountable hurdle, as the will of each individual is that “the 

goals of the community to which he belongs should be pursued and 

realised”.2 Therefore, the real task is in establishing the collective goal of 

the community, and uniting its members. 

The first step in the process of establishing a community that is able to 

project a united will into the external world was to establish which type of 

common-property regime this series of articles seeks to justify. After 

sampling a number of works, an undertaking that can be explored fully in 

part I of this series, it was established that the most sensible inquiry was 

to use the personality theory of property to justify a limited access 

common-property regime. As a result, and using the influential works of 

Professors Ostrom and Clarke, 3  six community characteristics were 

proposed. These characteristics are fundamental for the establishment of a 

community that has the potential to project its will and personality into the 

external world and establish personal-property claims over natural 

resources, thus giving rise to a limited access common. The required six 

community characteristics are: exclusion of non-members, mutual self-

interest, homogeneity of interest, cohesiveness, idiosyncratic regulation 

and sanctions.  

The closing assertion of part I of this series was that, if a community 

exhibits the six required characteristics, and as such possesses a united 

collective will, there is no reason why this will cannot be projected into 

the external world and embodied in objects and resources. The projection 

and embodiment of will in such a way gives rise to a personal-property 

claim, as understood by the personality theory of property, which should 

                                                      
2 J Waldron, The Right to Private Property (OUP 1988) 347. 
3 See in particular A Clarke, ‘Creating New Commons: Recognition of 

Communal Land Rights within a Private Property Framework’ (2006) 59(1) 

Current Legal Problems 319. 



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in turn defeat any competing fungible claims that often (but not always) 

characterise private property.  

 

1.1 Part II 
 

This instalment of the two-part article will apply the personality 

theory of property to the limited number of community claims that are 

recognised in English law. It will be shown that the personality theory of 

property is not yet operative in the community context, and does not 

protect community entitlement in the way that it protects the entitlement 

of private individuals. This instalment also explores why community 

entitlement to property fails to adhere to the personality theory, and points 

to the inconsistency between the nature of the community claim and the 

dominant narrative in property discourse. Finally, it will be suggested that 

whilst recent political initiatives purport to have given greater weight to 

community entitlements to property, this is in fact a ruse. The outcome of 

the policies aimed at recognising the community claim is little more than 

a perpetuation of the preference for private property initiatives.  

The reluctant conclusion of this article series is that a community of 

users cannot establish an entitlement to the resource that they use through 

the personality theory of property. Whilst in theory claims of a 

community should be respected in the same way as claims of individuals 

under the personhood perspective, this is impossible as long as the 

dominant narrative of property is that of the self-interested individual. The 

English legal system does not understand the nature of communal claims, 

and all attempts to introduce policies and mechanisms that recognise and 

accommodate community claims to land have proved ineffective. 

Allocation of, and entitlement to, natural resources not only relies on the 

dominant property narrative, but also the political climate in which the 

narrative is developed. The political climate is such that promoting 

community entitlement to property is not advantageous to realising the 

economic aims of the government, which, in light of the recent economic 

downturn, and negative economic forecast following the United 

Kingdom’s decision to leave the European Union, can only really favour 

the instrumental and fungible property claim.  

 

2 PERSONAL AND FUNGIBLE CLAIMS IN THE 
COMMUNITY CONTEXT 

 

Now that the theoretical framework of property and personhood and 

the requisite community characteristics have been identified, the 

remaining step is to assess the usefulness of the application of the 



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dichotomy in justifying communal property claims. If the property and 

personhood theory is a sound justification for limited access communal 

property claims, these communal claims should be protected, and 

prioritised insofar as they are personhood-constituting claims.  

However, Western legal systems do not, as a general rule, recognise 

communal property holding. There are only a small number of communal 

property claims that exist in English law, and even these are limited and 

under-developed. To assess whether the personhood perspective can 

justify these limited examples, they shall be analysed in the light of the 

personal/fungible dichotomy introduced in the first instalment of this two-

part article series. The examples that will be pursued are rights of 

common over common land, the town or village green regime and assets 

of community value. If the personhood perspective does apply to 

communal property claims, these claims should be protected from 

competing fungible claims and lead to a stable community entitlement to 

property. However, as will be seen, this is far from the reality. 

 

2.1 Competing Claims: The Continuum 
 

The methodology for assessing whether communal property claims 

adhere to the personality theory of property employs the use of a 

continuum. 

At either end of the continuum appear the personal/fungible 

dichotomous claims. Claims are then plotted on the continuum in a 

position that is commensurate with the level and nature of their interest. 

Those claims that are further towards the personal end of the continuum 

will have the status of personal-property claims, and those that appear 

towards the fungible marker will attain the status of fungible claims. In a 

clash of competing claims, those that are plotted further towards the 

personal marker will prevail over those that are plotted closer to the 

fungible marker; such is the normative effect of the personhood 

perspective. Therefore, if every claim could be plotted in this visualised 

way, there could be an instant assessment as to which claims should take 

priority over others. If two competing claims were plotted in exactly the 

same position, the method of adjudication between the claims would be a 

concept familiar to both property lawyers and the personality theory of 

property: time. The claim that was established first is the claim that takes 

priority. 

To illustrate the use of the continuum: figure 1 depicts a claim that 

would be treated as personal, and which would take priority over a claim 

plotted in the way that figure 2 depicts, which is fungible. There is a 

presumption that that those who hold land purely for instrumental value, 



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such as for commercial investment, will have a fungible claim to the 

property; and similarly those who use the land for residential or domestic 

purposes will be presumed to have a personal-property claim. However, 

the continuum does not shackle the property claim to its initial 

categorisation; the claim may move between fungible and personal, which 

is in accordance with Radin’s personhood theory,4 as the claim can be 

simply re-plotted.  

 
Furthermore, when adjudicating between competing claims, the 

continuum does not always assume that the paper-titleholder will only 

have a fungible claim, and that parties who use the land will establish a 

personal claim. The continuum allows the claims of all competing parties, 

or indeed communities, to be appropriately plotted on the continuum and 

document the wide range of interests that may exist. However, in order for 

the continuum to work satisfactorily, it is in fact the strength of the 

personal claim that should be documented on the continuum. For 

example, if person A valued their land as both an investment and as their 

home, and that value was evenly split, their interest would be plotted at 

the midpoint on the continuum. If person B only valued their land as their 

home, and had no regard for its value as an investment, their interest 

would be plotted almost squarely on the ‘personal’ marker on the 

continuum. If a competition arose between persons A and B over the land, 

the interest of B would be favoured on the basis that his interest leans 

further towards to personal end of the continuum than A’s. However, 

                                                      
4 MJ Radin ‘Property and Personhood’ (1982) 34 Stanford Law Review 957, 966-

967. 



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plotting the interests in that way has no regard to the relative strengths of 

the personal value that persons A and B place on their property; it is 

assumed that person A places a lesser personal value on his land simply as 

a result of him also having a fungible interest. It is conceivable, and 

perhaps even inevitable, that devaluing A’s personal interest as a result of 

a concurrent fungible interest will cause an injustice. For example, B may 

have no fungible interest in the land because it is a holiday home in a 

falling market, and it was always intended that he would derive enjoyment 

from the property from its occasional use and he accepted that there 

would be no financial gain (and perhaps even financial loss). On the other 

hand, person A attributes both a personal and fungible value to their land 

as it is their only home, and is their greatest investment in which all of 

their wealth has been invested. In that context, it is difficult to justify why 

B’s claim would trump that of A, as the continuum dictates, given the 

clear disparity of the value of the land in favour of A. Therefore, it is 

imperative that the continuum is instead used to evidence the strength of 

the personal claim, as opposed to the claim made on balance between the 

fungible and personal markers. To that end, person A’s interest would be 

plotted away from the midpoint of the continuum and further towards the 

personal marker; their personal claim is strong as the land is their only 

home. On the other hand, B’s claim would likely fall away from the 

personal marker; the land is only one of a number of homes that they 

inhabit, and is not imperative to their security and being.   

It should be also be noted that the personal/fungible dichotomy does 

not necessarily correlate to other dichotomies in property law, such as 

Rudden’s ‘things as thing’/‘things as wealth’, 5  or the ‘use 

value’/‘exchange value’ dichotomy. Use value, personal claims and things 

as thing cannot be used interchangeably. A commercial landholding may 

have a high use value, but would not be characterised as being valued for 

its status as a thing, nor as being subject to a personal claim. Therefore the 

scope of the inquiry in this article series is narrowly focused, and there are 

other possible frameworks that could be pursued in further work. 

 

2.2 Common Land 
 

The recognition of communal land rights in modern English law can 

be traced to the Commons Registration Act 1965, now replaced by the 

Commons Act 2006. The 1965 Act sought to preserve ancient commons 

                                                      
5 B Rudden, ‘Things as Thing and Things as Wealth’ (1994) 14 Oxford Journal of 

Legal Studies 81. 



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through the registration of all communal rights and the land over which 

they were exercisable. The effect of the 1965 Act was that all commons 

must be registered, and a failure to register a right of common and the 

land over which it was exercisable resulted in its extinguishment.6 

Communal land rights are a limited class, and have been defined as a 

right to ‘take or use some portion of that which another man’s soil 

naturally produces.’7 The class comprises six rights of common: pasture 

(right to graze), piscary (right to fish), turbary (right to take turf for fuel), 

marl (right to take sand or gravel), pannange (right to allow pigs to 

forage) and estover (right to take timber for housing). New rights of 

common may be created, but the circumstances in which this may happen 

are greatly restricted; no new rights of common may be created by 

prescription over land that is already registered as common land, as 

stipulated by section 6(1) of the Commons Act 2006, and recently re-

affirmed in R (Littlejohns) v Devon County Council. 8  New rights of 

common may only be created over land that is already registered as a 

common through express grant, and these new rights of common may not 

exist in gross.9 If a new right of common is created over land that is not 

already registered as common land, this will trigger the registration of the 

land as a common, as per section 6(5)(b) of the Commons Act 2006. 

Finally, new grazing rights may be refused registration by the commons 

registration authority if the authority believes that the land cannot sustain 

the right and risks the over-exploitation of the land.10 Variations of rights 

of common may be refused on the same grounds.11 

The interests of the commoners (the collective name for those who 

hold a right of common) can be described as a personal-property claim for 

the purposes of the continuum, which should be plotted according to 

figure 1. The commoners do not use the land for financial profit, but for 

survival, sustenance, and in some cases, recreational value. Historically 

the use of the common allowed the commoners to source food, fuel and 

materials for building their homes. In the modern context it is more likely 

that the exercising of many of these rights of common will be for 

recreational purposes (such as fishing), and those that are more 

                                                      
6 Commons Registration Act 1965, s1(2)(b). 
7 GW Cooke, Cooke’s Inclosure Acts (V&R Stevens and Sons & Haynes 1864, 

4th ed) 5. 
8 [2016] EWCA Civ 446; [2015] EWHC 730 (Admin). 
9 Commons Act 2006, s6(3). 
10 Commons Act 2006, s6(6). 
11 Commons Act 2006, s7(5). 



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pragmatically focused and archaic are unlikely to be used. The anomaly to 

this observation would be grazing, as a commoner may graze animals on 

the common as part of their commercial farming activities, although the 

economic benefit of grazing may still be viewed as running to the heart of 

their survival and sustenance. Furthermore, the commons register 

typically protects ancient rights of common, and it is likely that the 

commoners have developed as a community through their use of the 

common. The use of the common is the defining factor of their 

community and is likely to be constitutive of its identity. It would be 

unlikely that the commoners would be satisfied with an alternative plot of 

land, even if that land were able to support the same rights of common, 

because of the ancient nature of the rights that often are being exercised. 

The land is part of the community heritage, and is valued for this reason. 

Therefore, the claim of the commoners is not a fungible claim; they have 

developed an attachment to the land, and thus their claim is personal. 

If the commoners do in fact establish a personal-property claim over 

the land, the use of the personhood perspective dictates that this should 

defeat the fungible interest of the landowner. In many ways this analysis 

holds true. The landowner is greatly restricted in the ways in which she 

may use the land, and may not carry out any works on the land such as 

fencing, erection of buildings or the digging of ditches or trenches without 

consent form the commons registration authority.12 Almost every action 

that will result in preventing or impeding the access to the common will 

require consent from the registration authority, 13  and in determining 

whether to grant the consent, the commons registration authority should 

have regard to the interests of those commoners who exercise rights of 

common. The effect of the registration of land as a common is to remove 

most of the fungible value of the land. The landowner is unlikely to be 

able to use the land for his own ends, and the value that he can extract 

from the land for himself will be limited.  

Contrary to first impression, it can be argued that the priority given to 

the personal property claim of the commoners is an illusion, and the 

scheme of commons registration does not entirely adhere to the 

personhood perspective. However, the challenge to the personhood 

perspective does not arise from the fungible interest of the landowner, but 

rather the general public interest. It will be remembered that this series of 

articles is concerned with establishing limited access commons through 

the use of the personhood perspective; this ambition is hindered with the 

                                                      
12 Commons Act 2006, s38. 
13 Commons Act 2006, s38(2)(a). 



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scheme of commons registration as the limited access common enjoyed 

by the commoners is also subject to open access rights. For example, the 

common may be subject to the rights of public access under the 

Countryside and Rights of Way Act 2000, which prevents commoners 

from excluding persons who do not enjoy rights of common. Furthermore, 

commons councils must have regard to the public interest when 

discharging their functions,14 not just the interest of the commoners, as 

should the commons registration authority when determining whether to 

grant consent for works on the common.15 No special weight is given to 

the interests of the commoners in this balance of considerations.  

If the personhood perspective were to hold true, the wider public 

interest would not affect the personal-property claim of the commoners. 

The personhood perspective is only concerned with claims that can be 

attributed to a distinct, defined and united will. Typically this is the will of 

an individual, or, as this paper contends, the will of a community that 

exhibits the five required characteristics. The public interest is a wide 

category of interests that could not substantiate nor establish a claim 

under the personhood perspective, as it would not meet these 

requirements. Therefore the public interest should not affect the 

entitlement of a community who have established a personal-property 

claim. 

One reason for this tension between the interests of the public and the 

commoners, and the inconsistency between communal land rights in 

English law and the personhood perspective more generally, can be traced 

to the assertions of Professors Bromley and Clarke, which were noted in 

part 1 of this article series. There is a general and deep-set 

misunderstanding in our private property framework about the nature and 

different species of common-property. It is possible that this 

misunderstanding is manifested in the commons legislation of 2006 that 

appears to make provision for a limited access common, but is then 

subject to considerations that properly belong to an open access regime; a 

confusion that is not helped by peripheral legislation such as the 

Countryside and Rights of Way Act 2000. 

A further way in which the commons registration system fails to 

protect the personal claim of the community can be found in the 

provisions that allow for deregistration of common land.16 If the personal 

claim of the local community is to be prioritised it seems inconsistent with 

                                                      
14 Commons Act 2006, s31(6). 
15 Commons Act 2006, s39(1)(c). 
16 Commons Act 2006, ss16-17. 



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that prioritisation to allow for deregistration of common land and rights of 

common. The legislation attempts to strike a balance between the 

community claim and the fungible claim of the landowner that at least 

acknowledges that the community should not be deprived of the utility of 

the natural resource. Sections 16(2) and 16(3) of the Commons Act 2006 

stipulate that, if the land to be deregistered is in excess of two hundred 

square meters, a parcel of replacement land must be registered as common 

land. However, if the area of land to be deregistered is smaller than two 

hundred square metres, section 16(4) does not require that replacement 

land be registered, but leaves the option open should the registration 

authority wish to do so.  

The voluntary registration of replacement land does not protect the 

community entitlement, as the common may be lost and no replacement 

provided. Furthermore, the provisions for mandatory registration of 

replacement land are not satisfactory for the purposes of protecting the 

personal community claim, as the notion of replacement land treats the 

claim of the community as fungible. It is assumed that the land that the 

community has enjoyed could be substituted for land that would be of 

equal value to the community; however, under the personhood 

perspective, this would not be possible, as the community would have 

bound its personality with the land. The nature of a personal claim is that 

the pain caused by the loss of the physical property cannot be remedied by 

providing replacement property. Replacement common land will not have 

the same historic connection to the commoners who hold ancient rights of 

common. To suggest that the replacement land is a sufficient mechanism 

for protecting the community entitlement is misguided, and does not 

conceptualise the claim of the community in the appropriate way. 

Finally, it may be argued that the community lacks the level of 

idiosyncratic regulation required in order to establish a collective will and 

a person-property claim in the first place. It is true that the commons 

registration scheme regime provides for some level of idiosyncratic 

regulation; part 2 of the Commons Act 2006 provides for the 

establishment of commons councils, which may manage the agricultural 

activities on the land, the vegetation on the land and the rights of 

common. However, the role of idiosyncratic regulation is diminished 

when it is remembered that the commons registration authority have the 

right to refuse registration of new grazing rights if it is thought that the 

land is unable to sustain this right. This decision-making power of the 

commons registration authority takes away some of the control from the 

commoners and the commons council, and places it with the state.  

It is clear that the strongest example of communal land rights in 

English law does not adhere to the personality theory of property, and the 



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personal-property claim of the community is not properly acknowledged 

and accommodated. The provisions for deregistration and replacement of 

common land, the removal of some of the commons council decision 

making power, the consideration of the public interest, and the fact that 

the instances in which new rights of common may be created are actually 

quite restricted all lead to the conclusion that the scheme of commons 

registration is not a an effective way of establishing a limited access 

common and community entitlement to land. 

 

2.3 Town or Village Green 
 

Another community claim that is recognised through the commons 

legislation of 1965 and 2006, and which will now be analysed through the 

use of the personhood perspective, is the town or village green. 

Land can be registered as a town or village green (‘TVG’) pursuant to 

section 15 of the Commons Act 2006 (previously section 22 of the 

Commons Registration Act 1965). Under the Commons Act it must be 

shown that the land has been used ‘as of right’ for lawful sports and 

pastimes for a period of at least twenty years by the inhabitants of a 

locality, or neighbourhood within a locality. The requirement that the use 

must be ‘as of right’ has been taken to mean the tripartite test of nec vi, 

nec clam and nec precario: that the use must be without force, without 

stealth and without the licence of the landowner.17 The rationale behind 

these factors was explained by Lord Hoffmann in R v Oxfordshire County 

Council, Ex p Sunningwell Parish Council as being that every legal 

system needs rules of prescription that protect long established de-facto 

enjoyment of land.18 Each of these three factors gives the landowner the 

opportunity to object to the use by the local inhabitants; if they do not 

object, they are deemed to have acquiesced in the use of the land. In 

essence, village green law is underpinned by the principles of prescription 

in English Law.19  

Village green registration confers rights of recreation upon the users 

of the land who are from the relevant locality or neighbourhood within a 

                                                      
17 R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 

A.C. 335, 350H (Lord Hoffmann).  
18 Ibid at 349D. 
19 Village green law is described as being “traceable” to prescription by Patten LJ 

in Taylor v Betterment Properties (Weymouth) Ltd [2012] EWCA Civ 250 [36]. 



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locality.20 These use rights are arguably proprietary as they operate in rem 

and attach to the land; the rights of the local inhabitants (the community) 

survive any transfer or conveyance of the land. The practical effect of 

TVG status is that the land cannot be used in a way that is inconsistent 

with the use rights of the local inhabitants, which promotes the social 

value of land, often at the expense of the economic value of the land 

enjoyed by the landowner. Registration of land as a village green is often 

used as an attempt to thwart development, to the extent it has been 

referred to as “a weapon of guerrilla warfare against development of open 

land.”21  

The TVG is a paradigm clash of claims over land. On the one hand 

there is the landowner who believes that they are absolutely entitled to the 

land, its capital value and, in most cases, exclusive control over its 

management and the right to realise the capital value. On the other hand 

there is the community (the inhabitants of a locality or neighbourhood 

within a locality) who engage in long use of the land and attribute other 

values to it; it is a social space and a recreational area, a space to which 

sentiments attach- their children grow up using the land, memories are 

made there and relationships with the other users forged. For the 

landowner to realise the full potential of his entitlement he must be free of 

the interest of the community of users. He must be free to sell the land, 

build on it or put it to any use that he so wishes, even if this use is 

inconsistent with the community interest. For the community to realise the 

full potential of their entitlement their use must be protected, and all 

inconsistent uses and interferences must be prohibited. For the landowner 

and the community to co-exist it is a fine balance, and one that is easily 

tipped. Legally, the landowner is in a far superior position: he holds the 

title to the land, and the community interest is hostage to the way in which 

he chooses to exercise his ownership rights. To redress the balance, legal 

recognition of the community entitlement is required, and this recognition 

is achieved through village green status. 

If the interests of the local inhabitants and the landowner are plotted 

on the continuum, they occupy the positions depicted in figures 1 and 2 

respectively. The local inhabitants establish a personal-property claim, 

owing to the social value that they attribute to the land, whereas the 

                                                      
20 R (Oxfordshire and Buckinghamshire Mental Health NHS Foundation Trust) v 

Oxfordshire County Council [2010] EWHC 530 (Admin) [80] (HHJ Waksmann 

QC). 
21 R (Lewis) v Redcar and Cleveland Borough Council and Another [2010] 

UKSC 11 [48] (Lord Walker). 



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landowner leans towards a fungible claim. The local inhabitants would 

unlikely be satisfied with replacement land as any replacement land that 

had not been used for the requisite twenty year period would not have the 

same social value to the local inhabitants; there would be no long use 

from which the local inhabitants can form a connection constitutive of 

their identity. The landowner himself may have some tendencies that are 

consistent with a personal claim, however, by virtue of the fact that a 

community of users has been making use of the land for such a prolonged 

period it is unlikely that he regards the land as being constitutive of his 

personality. Furthermore, the landowner would likely be sufficiently 

compensated by either replacement land, or the monetary value of the 

land subject to the use of the local inhabitants. The consequence of these 

observations should be that the community entitlement takes priority over 

the entitlement of the landowner. This certainly appears to be the case at 

first glance, as the landowner is restricted in his entitlement to the land as 

he is prevented from using the land in a way that is inconsistent with the 

use rights of the local inhabitants. It seems as if the TVG regime adheres 

to the personhood perspective; however, the substance of the protection 

afforded to the community entitlement tells a rather different story. 

 Village green registration is not the stable protection of community 

entitlement that the personhood perspective envisages. Recent changes to 

the regime give a much weightier consideration to the landowner and the 

fungible claim, and markedly reduce the protection given to the personal-

property claim of the community. For example, The Growth and 

Infrastructure Act 2013 amended the Commons Act 2006 to introduce 

additional bars to registration of land as a TVG. Section 15C now 

provides that registration will be barred where a trigger event under 

schedule 1A, which are all linked to planning applications, has occurred. 

There is a tremendous housing land supply shortage in England and 

Wales, and the sterilisation of potential development sites by village green 

registration is proving controversial. Any landowner who is seeking to 

realise the value of his land through development can thwart the rights of 

the community by submitting a planning application, which then tips the 

balance of protecting entitlements back in his favour. Furthermore, the 

personal-property claim of the community can be defeated by showing 

that the local inhabitants used the land pursuant to a statutory right to do 

so, as established in R (Barkas) v North Yorkshire County Council.22 The 

circumstances in which a successful application for village green 

registration can be made are rapidly narrowing, and the community 

                                                      
22 [2014] UKSC 31. 



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entitlement is increasingly left without protection, regardless of the 

personal nature of their property claim. The fungible claim is taking 

precedence in the battle between competing claims.  

Additionally, the provisions that apply to deregistration and 

replacement of common land also apply to town and village greens. As 

explored above in the context of common land, these provisions are 

wholly inadequate for the purposes of protecting the community 

entitlement, and mischaracterise the community claim as fungible. 

The failure of the TVG regime to adhere to the personhood 

perspective and favour the personal claim is not an anomaly in English 

law. Most community entitlements suffer the same emasculated fate as the 

TVG legislation. The only way in which the failure of the personhood 

perspective in the context of the TVG can be defended is to question the 

characteristics of the community. It is questionable whether the local 

inhabitants possess all six of the characteristics required to present a 

united will that could be embodied in property in the way that Waldron 

suggested, as discussed in the first part of this article series and noted 

above. In particular, there may be an absence of idiosyncratic regulation. 

The community certainly possess the other required characteristics; 

indeed, the legal test for registering land as a village green requires them. 

The community must be cohesive and mutually self-interested, non-

members of the community upon whom no rights have been conferred can 

be excluded from the land, and there is homogeneity of interest, and 

sanctions in the law of trespass if the scope of the use rights is exceeded 

(although, these sanctions are not imposed by the community in the way 

that Professors Ostrom and Clarke suggested). However, there is no 

idiosyncratic regulation in the TVG community. The only control that the 

local inhabitants have over the use will be determined by reference to the 

use over the requisite twenty-year period; the scope of of the legal right 

acquired by the local inhabitants will be set according to the scope of the 

use over the twenty years, and the local inhabitants may not exercise any 

further control or use of the land that was not engaged in during the 

acquisition period. Therefore, it is the landowner himself who often 

regulates the use of the land and determines who else may use it, not the 

local inhabitants. Furthermore, when regulating the use of the land, the 

only duty by which the landowner is bound is a duty not to interfere with 

the use of the relevant inhabitants. 

In theory, the lack of idiosyncratic regulation weakens the argument 

for the community claim of a TVG to be protected though the framework 

of the personal-property claim. However, in reality the communities of 

local inhabitants often form interest groups that regulate the use and 

maintenance of the land, especially when the landowner has no use for the 



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land following its registration as a TVG. As with commons councils, the 

formation of these groups is not mandatory, nor are their regulations 

legally binding; yet, these groups are different from commons councils as 

they are not grounded in statute and afforded the same powers. 

Nonetheless, community interest groups do go some way to strengthening 

the presence of the required community characteristics. One example of 

such a group is ‘The Friends of the Trap Grounds’, which was established 

to campaign for the protection of the Trap Grounds in North Oxford. This 

land became the subject of the landmark case Oxfordshire County Council 

v Oxford City Council and Another,23 which, following lengthy litigation, 

resulted in the registration of an area of scrubland as a TVG (in in light of 

more recent case law it is unclear whether the land would be registered if 

these circumstances arose now). The interest group now runs regular 

‘work parties’ to maintain the land, holds an annual AGM, engages in 

educational activities and monitors the use of the land and wildlife. It 

seems very difficult in a situation such as this to suggest that the 

community does not possess the necessary characteristics to substantiate a 

personhood claim.  

 

2.4 Assets of Community Value  
 

The final community interest that will be considered in the framework 

of the personhood perspective is the asset of community value (‘ACV’) 

scheme, which was introduced as part of the wider movement of 

community empowerment under the Localism Act 2011. 

The Department for Communities and Local Government observed 

that “[o]ver the past decade communities have been losing local amenities 

and buildings of great importance to them|”. 24  A solution to this 

predicament that has been adopted is the assets of community value 

listing scheme, introduced by part 5, chapter 3, of the Localism Act 2011, 

and supplemented by the Assets of Community Value (England) 

Regulations 2012. The scheme allows community interest groups 25  to 

nominate land that is valued by the community to be included on a list of 

community assets. Land of community value is taken to mean land that 

“furthers the social wellbeing or social interests of the local 

                                                      
23 [2006] UKHL 25. 
24 Department for Communities and Local Government, Assets of Community 

Value- Policy Statement, September 2011, 4. 
25 See Assets of Community Value (England) Regulations, regulations 5, 12 and 

Localism Act 2011, s89 for definitions. 



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100 

community”, 26  with ‘social interests’ further dissected to mean either 

religious, cultural or sport interests.27 If the land is accepted for listing the 

community interest is protected in the sense that, if the landowner chooses 

to dispose of the land,28 the community interest group are given a period 

in which to prepare a bid to purchase the asset. When the landowner 

indicates to the relevant authority his intention to sell, he triggers an 

interim period of six weeks (known as a ‘moratorium’) in which the 

community must express in writing its intention to make a bid.29 If the 

community interest group evinces this intention within the six weeks, this 

period is extended to six months, in which the community must prepare 

and present their bid to the landowner.  

On initial inspection, the ACV scheme appears to recognise a 

personal-property claim in favour of a community. The social interests of 

the community and its connection with the land is formally recognised 

and protected through the listing of the asset, which may in turn lead to its 

acquisition by the community. The claim of the community is treated as 

personal rather than fungible, as it is the particular listed asset that is 

protected, rather than the securing of a replacement asset.  

Allowing communities to list assets of social value, with a view to 

their possible acquisition, can be extremely beneficial to a community. 

For example, the moratorium period alleviates the pragmatic and 

organisational problems that would plague a community group trying to 

put together a bid, which a private individual would not face, and gives 

ample time for the bid to be drafted and agreed upon by all the community 

members. Furthermore, the facilities that can be listed as an ACV are 

wide-ranging and include pubs, recreation grounds and local amenities. 

Only residential dwellings are excluded from potential ACV listing. 30 

Therefore the community interest is recognised in a diverse range of 

situations, and can be recognised over land that is privately owned.  

                                                      
26 Localism Act 2011, s88(1)(a). 
27 Localism Act 2011, s88(6). 
28 The only dispositions that are qualifying for these purposes are a disposition of 

the freehold interest with vacant possession and a grant of a lease for 25 years or 

more, see Localism Act 2011, s96; see also s95(5) for a list of excluded 

dispositions. 
29 Localism Act 2011, s95 and Assets of Community Value (England) 

Regulations, regulation 13. 
30 Assets of Community Value (England) Regulations, regulation 3 and schedule 

1. 



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101 

The fungible property claim of the landowner will be restricted by the 

listing of their land as an ACV, as they are required to allow the 

community to bid and must wait for them to do so. In addition, the 

personal claim established by the community affects the fungible claims 

of the landowner as designation of land as an ACV is a material planning 

consideration.31 This may hinder or prevent the development of the land 

by a landowner who is seeking to realise their fungible claim over the 

land. When the interests are plotted on the continuum the claim of the 

community seems to align squarely with figure 1, with the claim of the 

landowner often at figure 2, and it seems that the personal interest does 

indeed outweigh the fungible interest. 

However, when more thoroughly analysed, designation of land as an 

ACV does very little to raise a presumption in favour of the community 

entitlement. For example, the type of group that can be recognised as a 

community interest group is limited by the statutory definition at 

regulations 5 and 12 of the Assets of Community Value (England) 

Regulations 2012. The group must have legal personality and be capable 

of holding title to property, which immediately discounts those 

communities that have not formalised their relationship in law, even if 

they have the required six characteristics. As noted throughout this article 

series, legal formalisation of the community relationship is a problem that 

plagues communal property arrangements more generally, and prevents 

de facto common-property arrangements being recognised in law. 

Furthermore, the right is neither a right to buy, nor a right of pre-emption; 

at best it is a right to be informed of the owner’s intention to sell or grant 

a lease for 25 years or more. The only real benefit of the listing of the 

asset, which the landowner can apply to have reviewed,32 is to afford the 

community a greater amount of time in which to assemble their bid, yet 

there is still no guarantee that the landowner will consider their bid. The 

only duty that ACV listing imposes on the landowner is a duty to wait and 

see if the community wish to bid for their land; it is little more than an 

inconvenience to him. Additionally, once the moratorium period expires, 

the landowner enjoys an eighteen month protected period where no 

                                                      
31 Department for Communities and Local Government, Assets of Community 

Value- Policy Statement September 2011, 4. See also Department for 

Communities and Local Government, Community Right to Bid: Non-Statutory 

Advice Note for Local Authorities October 2012, para 2.20. 
32 Localism Act 2011, s91. 



COMMUNITY PROPERTY CLAIMS IN THE PERSONHOOD 

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further moratorium can be triggered.33 The community bid, and thus the 

personal claim of the community, is at the mercy of the market and other 

fungible claims over the land. A private purchaser could easily out-bid the 

community, or the landowner could wait out the moratorium period, and 

the personal-property claim of the community would be defeated by the 

landowner’s fungible claim as they sought to realise the highest value of 

the land. In substance, the ACV scheme does not adhere to the 

personhood perspective, and it does not operate to protect and prioritise 

the community claim.  

 

3 BARRIERS TO RECOGNITION 
 

The three examples given above demonstrate that the property and 

personhood theory does not hold true for communal property claims in 

England. If anything, the strength of the entitlements plotted on the 

continuum operates in reverse when a community makes the personal 

claim, as the claims plotted towards the fungible marker seem to represent 

a stronger entitlement. This seems difficult to accept, as the reason for 

attempting to protect and prioritise these claims is not because they are 

communal, but because they are personal-property claims, which, in the 

personhood perspective, carry the strongest entitlement. Private property 

enjoys the privilege of being able to invoke the personhood perspective, 

and there seems no reason why it should not extend to a community, 

provided that the community exhibits the requisite characteristics to attain 

personhood status. Therefore, there appears to be a prejudice against 

communal property entitlements.  

Professor Radin identifies what may be the cause of the failure of 

communal property claims to conform to the traditional application of the 

personhood perspective: 

 

“If a dichotomy telescoping this continuum to two end points is to 

be useful, it must be because within a given social context certain 

types of person-thing relationships are understood to fall close to 

one end or the other of the continuum, so that decision makers 

within that social context can use the dichotomy as a guide to 

determine which property is worthier of protection.”34  

                                                      
33 Assets of Community Value (England) Regulations 2012, regulation 13; 

Localism Act 2011, s95. 
34 MJ Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 957, 

987. 



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103 

Professor McDonald expresses the problem through the rights-duty 

correlate. He argues that if those who will be duty bound by the property 

rights that arise as the consequence of the communal property claim do 

not recognise those duties, there will be no recognition of the 

community’s property right. The group must be understood to be a right 

holder vis-à-vis others in society.35 

Therefore it seems that the continuum will only work when the 

relationship between the person and the thing to which the person is 

laying claim is understood. If the relationship is not understood, the 

entitlement of the person to the thing claimed will not be properly 

understood and respected. As the personhood perspective works perfectly 

well when an individual claims an entitlement to property (consider for 

example the rights of persons in of actual occupation contained in the 

Land Registration Act 2002), and the only variant presented in the 

application of the personhood perspective in this inquiry is to substitute 

the individual for a community, it must be the presence of the community 

that causes the application to fail. The simple fact is that the decision 

maker plotting the claims on the continuum in the context of the English 

legal system, and the conception of property that the English legal system 

employs, does not understand the person-thing relationship when the 

person is not an individual seeking to establish private property, but rather 

a community seeking to establish a communal entitlement. 

As the relationship between a community and a resource is not 

universally understood, it does not feature in the calculation for allocating 

resources. It is this lack of understanding about communal property that 

has ostracised community entitlement to natural resources, and prioritised 

private property and the fungible property claims of individuals over 

personal property claims of communities (as demonstrated above). For 

example, the lack of understanding about the nature of communal 

property is arguably what causes rights of common in the commons 

registration scheme to not enjoy an inherent priority over the claims of the 

general public. The open access rights of the general public usurp the 

rights of the commoners in the management of the common, as the wider 

‘public interest’ must be considered in the management strategies of the 

common. Indeed, the conflation between limited access and open access 

communal property is rife throughout the commons literature, and is a 

                                                      
35 M McDonald, ‘Should Communities Have Rights? Reflections on Liberal 

Individualism’ (1991) 4 Canadian Journal of Law and Jurisprudence 218, 220. 



COMMUNITY PROPERTY CLAIMS IN THE PERSONHOOD 

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mistake that Hardin himself makes in his landmark paper ‘The Tragedy of 

the Commons’.36  

To conclude that the non-understanding of the person-thing 

relationship, where the person is in fact a community, is the cause of the 

failure of the personhood perspective in the context of community claims 

is not surprising. It is something that is both explicit and implicit 

throughout commons scholarship, and a major contributing factor in the 

marginalisation of communal property arrangements. The more pertinent 

question is why do the decision makers, and the English legal system, not 

understand the person-thing relationship between the community and the 

land. 

 

3.1 Universal Understanding of Property Signals 
 

The reason for the misunderstanding (or non-understanding) of 

communal claims can be found in the scholarship of Professor Rose, who 

discusses the signalling of property ownership. She notes that possession 

is typically the basis of ownership. Possession communicates or gives 

notice to others of the possessor’s entitlement, an entitlement that is 

recognised in law.37 Therefore, those who take possession of resources 

establish their entitlement and are recognised as owner. It is also often the 

case that the primary method of signalling entitlement, the act of taking 

possession, is supported through some secondary symbol, such as formal 

registration.  

Rose’s account of property signalling cannot accommodate the 

property signals that a community transmit to the rest of the world. In the 

examples given in this paper, and with communal property more 

generally, the community does not ‘possess’ the resource over which it 

lays its claim. Rather, the community establishes its entitlement by 

individual members of the community using the resource, and sharing it 

with the other members of the community. In the context of a private 

property framework this sharing does not signal an owner-like 

entitlement; there is no exclusion of all others from the resource in the 

way that Blackstone envisaged, and there is no act of possession by one 

person.   

Nonetheless, it seems that the English legal system has the potential to 

be able recognise a community entitlement to a limited access common; 

                                                      
36 G Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243. 
37 C Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric 

of Ownership (Westview Press Inc. 1994) 16, see also chapter one generally. 



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105 

and it would require a small step to achieve this. It was noted in the first 

article in this series that, for a successful mutual self-interest common, the 

resource must be “just as private to the community as private property is 

to the private property owner.”38 It was further argued that the community 

must exclude non-members of the community from the use of the 

resource, which led to the observation that limited access communal 

property bears some resemblance to private property 39  (although this 

resemblance was later limited through an analysis of the alienability of 

communal property). If these contentions are true, it is difficult to 

understand why the personhood perspective does not hold true for the 

community claim in the same way as it does for private claims, as they 

both share the same core of exclusion rights. The characteristics of the 

group seem to mirror the private individual in such a way that should 

allow the personhood theory to justify the personal claim of the 

community. 

Therefore, there must be something else in the characteristics of the 

community that sets the quality and signalling of its personal claim aside 

from that of the individual. One possible solution is that, in reality, the 

community does not exclude others from using the resource, but rather 

they exclude others from exercising the same rights as themselves over 

the resource. For example, the local inhabitants in whose favour land has 

been registered as a TVG are able to exercise the rights of recreation that 

have been conferred on them, and no such rights are conferred on those 

who fall outside of the relevant locality or neighbourhood within a 

locality. Others may still use the land, but they may not do so in a way 

that is inconsistent with the rights of the local inhabitants, and the 

landowner may still exclude them. Similarly, only commoners who 

possess rights of common may exercise these rights, but this does not 

preclude others from using the common, provided that they do not 

interfere with the rights of common. Finally, those who fall outside of a 

community interest group do not enjoy the right to trigger a moratorium 

period when a landowner proposes to sell an ACV (however, it should be 

noted that the community interest group who triggers the moratorium does 

not necessarily need to be the same group that successfully applied for 

ACV listing of the land). 

                                                      
38 A Clarke, ‘Creating New Commons: Recognition of Communal Land Rights 

within a Private Property Framework’ (2006) 59(1) Current Legal Problems 319, 

329. 
39 C Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric 

of Ownership (Westview Press Inc. 1994) 117. 



COMMUNITY PROPERTY CLAIMS IN THE PERSONHOOD 

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The above observations are important because, as argued by Professor 

Rose, the property signal “must be in a language that is understood, and 

the acts of ‘possession’ that communicate a claim will vary according to 

the audience”.40 The audience in the context of the English legal system 

are those who operate in a private property framework. This audience 

does not understand shared use where the only exclusion is from the 

particular bundle of use rights exercised by a community. Such use is not 

an act of possession that will communicate a claim to the audience, as it is 

not communicated in a language that the audience will understand, and 

this is the crux of the problem for the community claim. Whether the 

property claim is fungible or personal makes no difference for a 

community; the real hurdle is that the audience understands the property 

signals of individuals, not communities.  

 

3.2 Dominant Property Narrative 
 

The audience to property signals understand the dominant narrative of 

property discourse, and this narrative and understanding of the institution 

of property does not accommodate communal entitlement. The dominant 

narrative suggests that individuals have a natural desire to possess 

property. “The first instinct of the individual is to live and to prefer their 

own lives to the lives of others”,41 and life depends on property and the 

ability to appropriate resources for individual sustenance. 42  Therefore, 

there is the desire to keep resources for one’s self and, when those 

resources become scarce, exclude others from sharing in its use; this has 

become widely regarded as the classical view of property.  

Therefore, in a world of scare resources, individuals become 

concerned with private property and maximising their entitlement in the 

allocation of resources. Individuals want to retain resources for their own 

use, and will exclude others to do this. Under the dominant narrative, this 

proposition is true even in communal property arrangements. The choices 

that face the individuals in a common-property arrangement where there 

is not enough of the resource to satisfy the preferences of every individual 

can be demonstrated in the well-known prisoners’ dilemma diagram 

below. In the diagram, to ‘cooperate’, members of the community would 

need to forgo some of their own use of the resource to ensure that the 

                                                      
40 Ibid at 16. 
41 T Hobbes, Leviathan (Prometheus Books, 1988) chapter 20. 
42 J Locke, Two Treatises of Government (Cambridge University Press, 2013) 

second treatise, sec. 28. 



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resource can sustain the use of the other members of the community. To 

‘cheat’, members of the community would maximise their use of the 

resource and take all that they can, with little regard for the amount of the 

resource remaining for the use of other members of the community. 

 
 A. cooperates A. cheats 

B. cooperates A gets a good allocation, B 
gets a good allocation. 

A gets lots, B gets nothing. 
 

B. cheats B gets lots, A gets nothing. 
 

A gets a small allocation, B 
gets a small allocation. 

 

If ‘lots’ is taken to be x, a ‘good allocation’ is > x/2. A ‘small 

allocation’, would then be < x/2. This makes it easy to see which 

combination of actions give rise to the best solution for all, and the 

greatest overall product of the resource: 

 
Cooperate - cooperate 2 ( > x/2) 

Cheat - cooperate x 

Cooperate - cheat x 

Cheat - cheat 2 (< x/2) 

 

The best solution for the members of the community entitled to use 

the resource is to adopt a cooperate-cooperate arrangement, as the 

cumulative product of the resource is enhanced: 2( > x/2) = > x. If a cheat-

cooperate or cooperate-cheat situation emerges, then the resource will 

only ever produce x, and if a cheat-cheat situation occurs the resource will 

not even produce x as 2(< x/2) = < x.  

By choosing a cooperate-cooperate scenario, every member of the 

community will get a good allocation of the resource to meet their needs, 

and the resource can sustain the allocation and use. Furthermore, the 

cumulative product of the resource is enhanced. Therefore, to make a 

common-property regime work, every member of the community must 

choose to cooperate.  

However, Professor Rose illustrates that the cooperate-cooperate 

arrangement is rarely reached.43 The preference orderings of individuals 

do not lead to a relationship of sharing in which entitlements are equal, 

but rather a relationship in which the individual making the decision 

whether to cooperate or not gains the greatest possible entitlement. This 

does not mean that individuals do not wish for others to get a good 

                                                      
43 C Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric 

of Ownership (Westview Press Inc. 1994) chapter 2. 



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108 

allocation of the resource, and they are happy for others to receive an 

equally valuable allocation as themselves, provided that it does not 

impinge on their own. It is when the allocation of others affects their own 

allocation that individuals develop the ruthless self-interest that leads 

them to exclude others from the resource. The individual self-interest 

develops in order to protect ones’ own allocation, and will always arise 

when the resource becomes scarce.  

Even those anomalous individuals who do not follow the classical 

theory of property and choose to share property fall foul of the prisoners’ 

dilemma when the resource becomes scare; they too do not choose a 

cooperate-cooperate strategy. For example, those members of society who 

buck the trend and are benevolent have a genuinely greater concern for 

others than they do for themselves will opt to go without. They will opt to 

participate in a cooperate-cheat arrangement, in which they cooperate. 

Although this achieves their aim of giving others a greater allocation of 

the resource, it does not maximise the cumulative product of the resource.  

Professor Rose suggests that the only individuals that will engage in a 

cooperate-cooperate arrangement and pursue the collective well-being 

will be those who “[do] not put her own well-being above yours, but is 

not a fool about needless self-sacrifice either”.44 She also demonstrates 

through a thought experiment that these individuals are in the minority,45 

and that a cooperate-cooperate arrangement will only exist if all the 

members of the community share this disposition. As soon as one self-

interested individual infiltrates the community, there will be a ‘cheat’, and 

the product of the resource diminishes.  

In short, the majority of society is either far too self-interested, or 

keen to fall on their sword, to choose a cooperate-cooperate scenario and 

maximise the product of the resource for the collective well-being.  

 

3.3 Consequences 
 

If the dominant narrative is as presented, it is no wonder that a 

community of users who select a cooperate-cooperate relationship and 

successfully manage a resource are not understood. Whether their claim is 

fungible or personal makes no difference, it is the prospect of having a 

successful communal property regime in which this claim can exist that is 

the stumbling block for the community. If the dominant narrative could 

rationalise communal property, then there would be no reason why the 

                                                      
44 Ibid at 37. 
45 Ibid at chapter 2. 



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109 

personal claim of a community could not be understood in the same way 

as that of an individual. However, as long as the cooperate-cooperate 

scenario and use by sharing is in the minority, this seems unlikely to 

happen. 

It seems that Radin is correct to say that if the decision maker who is 

plotting the claim on the continuum and the audience to that claim do not 

have the necessary level of understanding, the dichotomy is useless as a 

guide to assessing which claims are worthier of protection. It makes no 

difference where the community claim is plotted on the continuum, as the 

person-thing relationship is not understood, and therefore the dichotomy 

is ineffective as a tool for adjudicating between competing claims of a 

community and a landowner. The outcome of plotting the community 

claim towards the marker of a personal claim, in practice, leads to a 

greater weight being placed on the fungible claim of the landowner, as it 

is the only recognised claim. This is in line with the dominant narrative 

that expects individuals to use resources by excluding others, and claims 

made by those who do not exclude others do not signal a claim that is 

recognised and protected when plotted on the continuum. If the interest 

plotted towards the personal marker had been that of an individual 

claimant, the personhood perspective would have operated to prioritise 

this claim and recognise that individual’s better entitlement against all 

fungible claims. However, in a narrative where the focus is on 

maximising individual wealth and entitlement, the community claim, and 

the maximising of collective well-being and sharing, will never be 

understood. 

 

4 CHANGING THE DOMINANT VOICE IN PROPERTY 
NARRATIVE 

 

Professor Rose notes that the “dominant storyteller can make his 

position seem the natural one”.46  Therefore, as long as it is the self-

interested individual that is directing the property narrative, there seems 

little prospect of re-weighting the balance of the continuum to favour the 

personal claim of a community against fungible claims made by private 

individuals.  

In her exposition of the personhood perspective, Radin suggests that a 

government concerned with the just distribution of resources could use the 

                                                      
46 C Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric 

of Ownership (Westview Press Inc. 1994) 39. 



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110 

personhood dichotomy as the source of a “distributive mandate”.47 Under 

such mandate it would be the responsibility of the government to ensure 

that all citizens have the resources necessary to fully constitute their 

personhood. This may go so far as to require the government to 

“rearrange property rights so that the fungible property of some people 

does not overwhelm the opportunity of the rest to constitute themselves in 

property.”48 Furthermore, if the concern is securing the resources required 

by each citizen to fully constitute themselves, it seems inconsistent not to 

afford the same concern to communities, especially where individuals can 

only constitute their personhood and identity within a community.  

Interestingly, it seemed possible that there may be a shift in the 

dominant narrative of property rights. The Conservative-Liberal Democrat 

coalition government of 2010-2015 set out to pursue a policy of 

empowering local communities, and give effect to community claims to 

resources. This is a policy that has supposedly been pursued for some 

time; in 2008 the then Prime Minister, Gordon Brown, pledged to pursue 

polices “enhancing the power of communities”, “ensuring that their voices 

were heard” and “helping people…set and meet their own priorities”.49 In 

2010 David Cameron was elected as Prime Minister with his vision of the 

‘big society’, the ideology that communities should be empowered to 

solve their own problems, via a transfer of power from the state to the 

people and local communities. The end goal was to “create communities 

with oomph- neighbourhoods who are in charge of their own destiny’ and 

communities that feel they can ‘shape the world around them”.50  

The ‘big society’, whilst eventually abandoned, has resulted in a 

number of initiatives, which, although grounded in public law, have 

consequences for the allocation of, and entitlement to, resources. A prime 

example of such an initiative is the assets of community value scheme, 

discussed above. Another example of the ‘big society’ ideology in 

practice is a scheme that allowed local communities to apply to the ‘Big 

Society Bank’, a fund sourced by the state using the proceeds of dormant 

bank accounts, to receive funding to improve and support their 

                                                      
47 MJ Radin ‘Property and Personhood’ (1982) 34 Stanford Law Review 957, 

990. 
48 Ibid. 
49 Department for Communities and Local Government, Communities in Control: 

Real People, Real Power (Cmd 7427, 2008) foreword. 
50 David Cameron, 18 July 2010. Quoted from 

http://www.telegraph.co.uk/news/politics/david-cameron/7897445/David-

Cameron-launches-his-Big-Society.html accessed 10 April 2015. 



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111 

community. Four pilot areas were chosen, and the problem that these 

communities sought to address when given the power and funding to do 

so were problems of resource management. Communities in Windsor and 

Maidenhead sought to manage their local park and protect the community 

entitlement to use it, which entailed preventing development and use that 

was inconsistent with the social value that the community placed on the 

park. In addition, a community in Cumbria sought to secure funding to 

purchase their local pub that was in danger of closure. The community 

had formed an attachment to the pub over many years, providing the basis 

for a personal-property claim, which the funding from the ‘Big Society 

Bank’ helped realise.  

First impressions of these schemes seem to suggest that the 

community claim over resources, and the entitlement to manage and 

direct how a resource should be used, is being recognised. Not only that, 

but the government are also actively promoting and enabling communities 

to realise their claim and entitlements. Most of the schemes stop short of 

transferring title to the land and resources in question to the local 

community, not least because of the limited capacity of groups to hold 

legal title to property, but there does seem to be a shift in the right 

direction. However, as has already been exposed with the examined 

community claims above, first impressions can be deceiving.  

 

4.1 Trojan Horse 
 

In reality, the idea of the ‘big society’ and empowering communities 

has had very little positive impact on community property claims. There 

has been no favouring of community entitlements as a result of the 

policies implemented, especially not when the community claims clash 

with those of private landowners. In fact, many of the policies 

implemented perpetuate the favouring of private property claims, but have 

all the clothing of respecting community entitlement. Communities were 

sold a false package under the coalition government; the understanding of 

communal property claims is just a façade, and the dominant narrative of 

property is just as prevalent as it ever was. The initiatives supposed to 

promote community property entitlements are little more than a Trojan 

Horse, perpetuating the preference for private property arrangements and 

individual wealth maximisation. 

The reason for the continuing dominant narrative is easily explained. 

The political and economic climate of 2010-2015 did not lend itself to 

recognising community entitlements. The priority of the government has 

been to combat the recession and oversee the economic recovery of the 

country, and policies appropriate to this aim were pursued. In the 



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framework of sustainable development, the economic aim was prioritised 

over the social and environmental aim. This immediately marginalises 

personal-property claims, especially those of a community, that carry little 

or no financial value. Instrumental property has more immediate value for 

the economy, and is more conducive to an upward economic trend, than 

property that is claimed on the basis of some emotional or social 

connection with others in a community.  

There are clear examples of the coalition government actively 

pursuing the economic aim of sustainable development and seeking to 

realise the economic value of land, rather than the social value and 

community entitlement. One clear example can be taken from the 

communal property arrangements discussed earlier in this paper, the town 

or village green. Whilst it may be true that TVG status is used as “a 

weapon of guerrilla warfare against development of open land”,51 the act 

of the local inhabitants applying to register and protect the land cannot be 

ignored. Even if the application for TVG registration is what an objective 

observer may call ‘vexatious’, the fact remains that the local inhabitants 

as a community felt they had established a connection to the land that 

should be recognised and prioritised over the fungible claim of a 

developer or landowner. Provided that the legal test of section 15 of the 

Commons Act 2006 is met, it does not really matter what the motivation 

for the application and the community claim of entitlement is. However, 

the coalition government has not taken this strict stance, and have instead 

opted to amend the Commons Act 2006 through the Growth and 

Infrastructure Act 2013, as noted earlier in this paper. The effect of the 

amendments is to make it much harder to register land as a TVG, as 

section 15C of the Commons Act 2006 now contains a number of trigger 

events that will bar registration as a village green. All of these trigger 

events relate to planning applications over the relevant land, and thus 

prioritise the aim of development and maximising the economic value of 

the land, often at the expense of the social value attributed to the land by 

the local community. In essence, the fungible claim takes priority over the 

personal claim of the local inhabitants. The power of local communities to 

protect land that is important to them through the mechanism of TVG 

registration has been greatly diminished, and is now little more than a 

mechanism for favouring the fungible claim when the personal and 

fungible claims clash. 

                                                      
51 R (Lewis) v Redcar and Cleveland Borough Council and Another [2010] 

UKSC 11 [48] (Lord Walker). 



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The lack of protection for land valued by communities is hardly 

surprising, especially given that development and house-building have 

been the primary tools used by the coalition government to fuel the 

economic recovery. The government were never seriously going to favour 

the social aim of land and promote community entitlement, especially if 

that entitlement could impinge on the economic value of land. It is often 

the case that by recognising the social value of land, and community 

entitlement, the land becomes economically sterile and protected from 

development, with the TVG regime being a prime example. The National 

Planning Policy Framework explicitly adopts the stance that “significant 

weight should be placed on the need to support economic growth through 

the planning system”,52 highlighting the preference for, and greater weight 

placed on, the instrumental value of land.  

The political climate also goes some way to explaining why the assets 

of community value scheme is diluted to the point of being inadequate to 

protect community entitlement to the local resources that they value. It is 

not on the political agenda of the Conservative party to inhibit the 

freedom of the property owning classes when they come to dispose of 

their property. Landowners can voluntarily enter into options to purchase 

and rights of pre-emption, but they will not be unilaterally imposed on a 

landowner in the way that would be necessary for the scheme to really 

recognise the community entitlement to resources that they use and value 

(note the stark contrast here with the Scottish community right to buy 

scheme). The ACV listing scheme only pays lip service to the notion of 

community entitlement to property, and in reality still perpetuates the 

private property claim of the landowner. The effect of the protected period 

afforded to the landowner, coupled with the possibility that the 

community bid could be outweighed by a private and fungible bid, or 

indeed that a private bid may even be preferred, rids the scheme of any 

real potential to protect community rights.  

On the whole, it seems that when considering the allocation of 

resources and the structure of property rights it is not only necessary to 

consider the dominant property narrative, but also the wider political 

context in which that narrative takes place. When this is done, only one 

conclusion can be reached: the dominant narrative of property has not 

changed. The interest of private wealth is still favoured, and property 

rights have not been arranged to prevent the fungible property of 

                                                      
52 Department for Communities and Local Government, National Planning 

Policy Framework March 2012, para 18. 



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individuals overwhelming the opportunity of communities to constitute 

themselves in property.  

Sadly, it seems unlikely that the status quo will change anytime soon. 

At the time of editing this instalment of the article series it is less than a 

week since the United Kingdom held a referendum to determine its 

membership of the European Union. As the readership of this journal will 

know, a slim 52% majority of the electorate voted to leave the European 

Union, with a voter turnout of 72%. There are grave predictions of a 

negative economic shock and continued uncertainty. Already some of 

these predictions ring true, the pound sterling has fallen and risen sharply, 

as have the markets, and the country is in political turmoil. Against this 

volatile backdrop it seems most unlikely that any government that 

eventually finds itself in control will pursue anything other than achieving 

the most financially viable and economically supportive use of land, no 

matter what that governments underlying ideology may be. Such a policy 

direction will likely result in the continued favouring of private property, 

and community claims will continue to fall by the wayside.  

 

5 CONCLUSION 
 

Natural resources, such as land, are predominantly subject to private 

property claims. Whilst this is in line with the classical Blackstonian view 

of property, it fails to recognise the nature of the multitude of competing 

claims that exist over land. Some of these claims do not correspond with 

the traditional view of ownership, and focus on use by sharing rather than 

use by exclusion, and the right of a number of defined people to use the 

resource. English law does not generally recognise communal ownership, 

at least where there are more than four owners,53 despite these communal 

claims existing in abundance. Until a legal mechanism is developed that 

can accommodate these communal property entitlements in our 

predominantly private property system, such claims will never attain more 

than a de facto status. 

The first step towards recognising communal property claims and 

accommodating them in a classical view of property is to justify the 

communal claim. This two-part article has sought to achieve this 

justification by using the personality theory of property, a theory that is 

usually applied to justify private property claims. The theory makes a 

normative claim; that personal-property claims should be prioritised over 

                                                      
53 The amount of legal title holders over land is limited to four, as per the Law of 

Property Act 1925, s34(2). 



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fungible claims, and that in the event of a clash between the two, there is a 

prima facie case that a fungible claim should yield to personal claims, 

save for exceptional circumstances. It has been argued that if a 

community can demonstrate a degree of cohesiveness, homogeneity of 

interest and mutual self-interest, idiosyncratic regulation and the practice 

of excluding non-members, it is possible that it can establish a group 

personhood and establish a personal claim to property. This in turn should 

take precedence over the fungible claims of landowners, and the 

community entitlement to land should be protected. The consequence will 

be that the use rights of the community are protected against inconsistent 

uses by the landowner, the community will have some rights of 

management and control over the land, and in some cases may even result 

in the transfer of title to the resource (provided there is an appropriate 

legal mechanism that allows communities to hold the legal title to 

property, which at present is difficult to achieve).  

In practice, the personhood perspective rarely holds true for 

community property claims, and even in the limited instances where it 

does, the community entitlement is so heavily qualified that it does little 

to protect the personal-property claim of the community. The reality is 

that personal property claims established by communities often yield to 

the fungible claims of private landowners, and the few mechanisms that 

are present in English law to protect personal claims made by 

communities actually perpetuate this state of affairs. The scheme of listing 

assets of community value provides virtually no protection at all for the 

community entitlement, and the town or village green regime has become 

so diluted through economic policy that registering land as a TVG is now 

almost impossible where the land has any commercial value that could be 

realised.  

The reason why the personhood perspective fails to justify community 

claims to land is not surprising. The classical view of property has 

become the dominant property narrative, and this narrative focuses on the 

self-interested individual who seeks to maximise their own wealth and 

exclude others from scarce resources. This narrative does not account for 

those who use land whilst sharing it with others, or those individuals who 

form a group of users that aim to enhance the collective well-being. 

Communal property has been marginalised, and communal property 

arrangements are seldom understood. As long as the property signals of a 

community are not understood by the audience in the context that they are 

made, personal-property claims established by communities will never be 

given the same status as those established by private individuals. 

Furthermore, until there is a better understanding of communal property 

arrangements by both the policymakers who plot the interests on the 



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personal/fungible dichotomous continuum, and the audience who receive 

the property signals generated by the claim, the common-property 

arrangements that do exist will continue to be ineffective. For example, 

the scheme of commons registration in England could be much more 

effective in protecting the rights of the commoners. Yet, until there is a 

better understanding about the differences between limited access and 

open access commons, and the tension that occurs between the two, the 

commons registration scheme will never reach its full potential. 

Some attempt has been made to address the imbalance between 

private and communal property entitlements, such as the assets of 

community value listing scheme and the big society project. However, 

these attempts have achieved very little, and have been hindered by the 

overarching aim of the collation and subsequent governments to revive 

the economy. Only policies that furthered the economic aim have been 

seriously pursued, some of which detrimentally affect community claims 

over land. The standout example of this is the Growth and Infrastructure 

Act 2013, enacted with the aim of promoting development and realising 

the economic value of land, even if that land could be subject to a 

personal-property claim of a community (such as TVG status). The 

instrumental value of resources and the fungible property claim has taken 

priority, and until the political climate changes, it is difficult to see how 

the dominant property narrative will either. 

Therefore, until communal property claims are placed on a level 

footing with private property claims it seems unlikely that communal 

property entitlements will be justifiable, properly recognised or 

accommodated in English law. Equality between the two claims will 

entail the changing of the dominant property narrative, and until the 

political climate is such that will enable this to happen, it seems unlikely 

to be achieved. The Blackstonian classical view of property has held fast 

for hundreds of years, and unless there is some radical change in view, it 

seems that communal property arrangements will remain only de facto 

arrangements, searching for some validity and recognition in a world of 

private property claims.