Public Land Law

1. Introduction

In October 2024, the Supreme Court heard the appeal in Darwall v Dartmoor National Park Authority, examining whether there is a legal right to wild camp on Dartmoor Commons. The case arose when Mr. and Mrs. Darwall, who own around 4,000 acres in Dartmoor National Park, sought a declaration that the Dartmoor Commons Act 1985 grants public access on foot or horseback but does not extend to wild camping. Supported by the Open Spaces Society, the Dartmoor National Park Authority resisted this interpretation, submitting that the 1985 Act allows wild camping and that the National Park Authority should regulate how this takes place.

At first instance, the Darwalls won their case, subsequently entering into an agreement with the National Park Authority for a paid, permissive wild camping scheme covering a reduced area of the Commons.^[1] The Darwalls announced that requiring landowner permission to camp is essential to maintain sustainable practices.^[2] However, the scheme was short-lived. The National Park Authority appealed, and the Court of Appeal held that a legislative right to wild camp on the Dartmoor Commons exists, calling this interpretation ‘clear and unambiguous’ in a ‘short point of statutory construction’.^[3] Now, as the Supreme Court prepares to deliver its final judgment, we wait to see whether England’s only right to wild camp will be upheld.

In the High Court, Flaux J had held that this was a ‘quintessentially private law dispute’,^[4] yet Darwall does not concern a disagreement between private parties: it asks whether members of the public have a statutory right to wild camp on the Dartmoor Commons. The case illustrates how public land law—understood as the governance of land by the state in the public interest—shapes some of the most contested legal debates about land ownership and use. Land law is no longer solely a private law subject: human rights form a core part of the curriculum, while building regulations and environmental controls often affect landowners as much as easements or covenants with their neighbours. Acknowledging interaction in the common law, the Supreme Court has adopted an increasingly pragmatic approach to balancing public and private rights and interests in land, particularly in cases involving village greens and rights of way.^[5] Drawing these threads together, this paper suggests that public land law should be understood as a distinct category of analysis—one that focuses on how the state governs land ownership and use in the public interest, particularly through planning, leasehold enfranchisement, and public access rights.

So far, there has been limited engagement with the broader question of how regulation structures property relationships in England.^[6] Scholars have considered the interface between land law and human rights^[7] as well as the impact of expropriation and physical takings,^[8] yet few have, so far, studied the intersection between regulation and land ownership or use.^[9] By examining how statutory frameworks and administrative interventions delineate the boundaries of property, public land law helps fill this gap, highlighting how property rights operate ‘as authorized’. This is, in the first instance, an explanatory rather than a normative claim: the paper does not ask whether property should be subject to public land law, instead, it recognizes that it already is.

The article begins by introducing the concept of public land law, emphasizing that land law contains both private and public law elements. It suggests that since the primary mechanism the State uses to limit land use and ownership in the public interest is legislation, land scholars should consider statutory provisions and administrative frameworks alongside common law principles.^[10] The analysis then introduces the concept of ‘property as authorized’, which suggests that property rights are not merely individual entitlements but are bounded by legislative and administrative authorization. The argument outlines key legislative interventions in property use and ownership: planning; leasehold enfranchisement; the right to roam and public rights. It then considers how these interventions interact with concepts of property rights, both under the ECHR and domestically, under the newly acknowledged ‘fundamental’ right to the peaceful enjoyment of property. The article concludes by exploring how public land law challenges static conceptions of property, often raising explicitly political debates.

2. Public Land Law and Property as Authorized

A. Public Land Law

The formulation of public land law used here—defined as the governance of land by the State in the public interest—applies to all land. Property rights in England take prescribed legislative form as estates, interests, or arise in equity.^[11] Registered land covers over 89 per cent of the land area of England and Wales, with HM Land Registry aiming to achieve comprehensive registration.^[12] Landownership takes the form of (mostly) registered estates and interests within this legislative structure, where registration guarantees title and ‘registered proprietorship’ is conferred by the State.^[13] Although additional requirements may apply to land owned by public authorities, this aspect of public land law falls outside the scope of this paper.

Here, public land law refers to legislative and administrative interventions that govern land use and ownership, regardless of who owns the land.^[14] Such a framing could be seen as overly extensive. After all, most forms of land ownership in England are already subject to statutory constraint—through the Law of Property Act 1925 or the Land Registration Act 2002—yet are understood as private property. However, the claim here is not that regulation converts private property into public property or that public land law replaces private land law. Rather, the argument is that land law scholarship has often paid insufficient attention to the public dimensions of land law, specifically, how statutes and administrative schemes constrain land ownership and use, leaving property ‘as authorized’. The term ‘public land law’ is intended as a category of analysis that acknowledges the role legislative and administrative interventions play in limiting land ownership and use, where property is often framed as private. By taking this approach, the paper seeks to recognize interactions that have long existed but are often conceptually under-explored.^[15]

Interest in this interaction is growing, with recent case law demonstrating judicial recognition of land law’s public character, including acknowledging both private and public rights in land. In Day v Shropshire County Council, a 2023 dispute about the protection of open space, the Supreme Court confirmed that public and private rights coexist.^[16] Even more strikingly, in Manchester Ship Canal No 2, in 2024, the Supreme Court recognized a ‘fundamental’ ‘right of the peaceful enjoyment of property’ akin to Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR), invoking the principle of legality, untroubled by the overlap between this constitutional right and private property rights underpinning rights of action in nuisance.^[17] Certainly, neither A1P1 nor the recognition of a fundamental common law right in MSC 2, revolutionize private land law. However, the decisions emphasize judicial recognition of property’s public character.

While private law often refers to ‘property rights’, public land law recognizes a right to property or a right to the peaceful enjoyment of property. It is this right that lies at the core, enabling a landowner to act as authorized, with legislative and administrative interventions marking the boundaries of the right to property. Public land law recognizes a right to ‘property’, rather than to ‘private property’,^[18] a distinction that can have normative consequences, since a right to ‘private property’ may draw in assumptions of individualism, autonomy, or exclusivity, that could resonate differently in a right to property.^[19] It is also possible to consider public land law without engaging with ownership as a conceptual or philosophical category.^[20] To the extent that it is necessary to draw on the concept of ownership, this analysis uses the term ‘ownership’ to refer to the holding of a freehold or leasehold estate as a ‘landowner’. Land ownership consists of estates and interests in land that are proprietary, enforceable against successors in title.^[21] They are recognized as ‘possessions’ for the purposes of A1P1 producing a ‘right to property’. Estates (and possibly interests) also fall into the newly recognized category of a right to the peaceful enjoyment of property or a right of property.^[22]

Although private land law has been widely studied, public land law remains under-explored. In other jurisdictions, particularly in those with a written constitution, there is lively scholarship on these points. In the USA, regulatory takings scholarship is extensive, identifying the scope of constitutionally protected property rights, assessing formalism and pragmatism as well as the scope for fairness and social obligations of property owners.^[23] In South Africa, researchers consider land law’s role in balancing private property rights with public interest land policies, assessing the implications of constitutional provisions,^[24] while in Ireland, scholars analyse how constitutional provisions require the balancing of property rights with broader social needs, noting both the impact of political and legal decision-making and its implications for the concept of property.^[25] In Scotland, scholars have assessed the Scottish model of land governance, particularly its right of responsible access, which offers a distinct approach to balancing public and private interests.^[26] Working cross-jurisdictionally, environmental lawyers in particular have been concerned to consider land holistically, so that, as Nicole Graham suggests, we can address the conceptual separation of property rights and responsibilities.^[27]

In contrast, England has seen relatively limited constitutional engagement with property,^[28] with courts rarely engaging with the concept of regulatory ‘takings’.^[29] Instead, judges have preferred to focus on statutory interpretation, concluding that property rights can be limited without compensation if the legislative wording is sufficiently express or necessarily implied.^[30] Addressing this gap, Kevin Gray has emphasized the significance of these interactions, outlining how regulation can shape the concept of property. Surveying cross-jurisdictional, common law caselaw, he concludes that: ‘deep at the heart of the property concept lies a fusion of individual right and social responsibility’.^[31]

This appreciation for ‘social responsibility’ illustrates the broader normative question that lies at the heart of public land law: if land use and ownership are shaped by legislative and administrative interventions, to what extent should we treat property not only as an individual right but also as something authorized by legal and administrative structures? If ownership is vulnerable (as in leasehold enfranchisement) or restricted by an administrative regime (as with planning), then a landowner may only own or use their property as authorized. This undoubtedly raises questions of where the boundaries on the right to property should be drawn to protect or facilitate the public interest. Gray concludes his analysis of takings and the common law by suggesting that ‘we may have to recognize that we are moving into an area where conventional understandings of property have steadily decreasing coherence or utility’.^[32]

This paper does not take a normative position on where boundary lines should be drawn. Instead, it notes that statutory and administrative frameworks limit, and delineate, land ownership and use. Courts play an important role in overseeing those boundaries but generally defer to Parliament, which determines where authorization begins and ends, for instance, by requiring planning permission, mandating leasehold enfranchisement, or enabling public access. This interaction between the common law, legislative and administrative interventions is the defining hallmark of public land law. Acknowledging this interaction does not imply doctrinal novelty (courts have long engaged with legislative and common law interactions^[33]), nor does it imply or promote normative endorsement of any particular legislative or administrative intervention. The analysis does not ask whether property should be subject to public land law; it simply recognizes that it already is.

B. Property as Authorized

The concept of property as authorized builds on J. W. Harris’s suggestion that landowners have, what he terms, ‘authorized self-seekingness’.^[34] Harris describes ‘self-seekingness’ as a powerful normative lodestone’,^[35] while observing that property limitation rules subtract ‘prima facie privileges and powers from ownership interests’.^[36] His use of the phrase ‘prima facie’ acknowledges both the existence of a property entitlement and the elasticity in its parameters.^[37] Taking a similar approach to constitution in the environmental context, Eloise Scotford and Rachael Walsh note the interaction of administrative regimes and property rights:

‘property rights are partly constituted by the administrative regimes that implement and underlie applicable environmental regulation, insofar as those regimes determine when, and to what extent, those with property rights in land can freely control its use’.^[38]

Their word ‘partly’ is significant. As Scotford and Walsh suggest, it is useful to acknowledge ‘mutualism’ in these interrelationships.^[39]

This paper takes the view that property rights are dynamic yet retain a conceptual core.^[40] This core is doctrinally well understood, predicated on ownership of an estate or interest in land: it is legal rather than moral, grounded in the ownership of an estate or interest in land recognized both under A1P1 and as fundamental in common law.^[41] Disagreement and litigation may arise if landowners think a government or public authority has gone too far, assessing the intervention as a challenge to property rights in public law. Otherwise, in everyday life, authorized property reflects how Parliament and regulatory bodies delineate the legitimate scope of land use, often shifting decision-making authority from private landowners to administrative bodies, underpinned by democratic processes.^[42]

Understanding property as authorized confronts more rigid models of ownership that treat property as fixed or unqualified, particularly a Blackstonian formulation of property as dominion, that was, even in the eighteenth century, doctrinally hard to defend.^[43] The approach also raises challenges for theories premised on the right to exclude, particularly their application in jurisdictions where landowners have access obligations, whether broad as under Scotland’s right of reasonable access or Sweden’s Allemansrätten or narrower as in England in respect of rights of way or the right to roam.^[44] Although the concept of property as authorized could be framed as a bundle of rights, in which individual entitlements are divisible and subject to legislative or administrative adjustment, that is not the approach taken here. Instead, this analysis assumes that limits on ownership or use are imposed by legislation, caselaw and administrative decision-making, and that ownership consists of ‘authorized self-seekingness’ within a legally bounded domain.^[45] There is a core to property, both socially understood and doctrinally protected as a human and fundamental common law right, that legislative and administrative regimes engage with.

Similarly, Although there are connections with progressive property theory, this paper takes an explanatory approach. Although progressive property scholars have illustrated the doctrinal interrelation between property rights and social utility,^[46] they have also suggested that property should be predicated on a normative commitment, for example, to human flourishing^[47] or freedom and community.^[48] To this extent, this paper is complementary rather than locating itself directly within progressive property scholarship. While there may be good normative arguments to promote the public interest in property ownership and use, the aim in this paper is a more modest one: to explain how the balancing of private and public interests, as well as private and public rights in land, already characterizes public land law. Where Parliament enacts statutory interventions affecting land, such as leasehold enfranchisement or planning restrictions, courts will give effect to these, subject to the possibility of a challenge under A1P1 or the common law right to property (which are exceedingly rare in the land use context). As the next section shows, many legislative interventions have curtailed the scope of landownership and use; and have nevertheless been upheld by both domestic courts and the European Court of Human Rights.

3. Legislative and Administrative Interventions

While the common law has never lacked property limitation rules, the most significant boundary rules are statutory in origin.^[49] These legislative frameworks may operate directly or may set up administrative regimes, requiring permission for certain uses, such as planning, or facilitate deprivation, by enabling leasehold enfranchisement. Legislation also protects public rights, recognizing their co-existence with private rights.^[50] As this next section explains, each of these frameworks represents a political and legislative choice to limit ownership or use.

A. Planning

In January 1947, the Minister for Town and Planning, Lewis Silkin, stood up in the House of Commons to introduce the Town and Country Planning Bill 1947. Convinced of its importance, the Minister described it as being of ‘magnitude and historic character’.^[51] The 1947 Act was passed with widespread political support, nationalizing development rights, confirming that no development of land could take place without permission.^[52] While the legislation included a £300 million compensation fund, for ‘once and for all distribution’, this did not provide compensation for ‘lost’ property rights. Instead, the fund represented a concession to landowners who had bought land on the basis that they would be able to develop before the 1947 regime came into force. Any claims needed to be filed by 1949 and were to be paid by 1953 in the form of either cash or government stock.^[53] Unless a landowner fell into one of these slender eligible categories, then, as Desmond Heap explained, ‘if planning permission were refused… no compensation was payable because no loss could be said to have been sustained by the landowner who no longer had vested in him the development rights in his land.’^[54]

Later governments, including the subsequent Conservative government returned in 1951, made some changes but did not abandon the nationalization of development rights or provide for compensation where planning permission was refused. To have done so would have made the planning regime unworkable, as the liabilities incurred to landowners whose applications were refused would have made the planning powers of local authorities inoperable.^[55] Practically, the planning scheme hinged on nationalizing development rights without compensation.

Today the planning framework is in many ways unchanged from 1947. Permission is required for development, defined both as an operation or material change of use.^[56] Local planning authorities must prepare and adopt local development documents, including development plans.^[57] A decision-maker determining a planning application or appeal must take relevant development plan documents into account as well as material considerations, including the National Planning Policy Framework, the summary of (oft-changing) planning guidance.^[58] Under planning legislation, landowners no longer have a right to develop; they merely have a right to apply for permission to develop along with everyone else.^[59]

If a landowner undertakes development without first seeking planning permission, they will be subject to enforcement proceedings.^[60] There is no suggestion that the approximately 13 per cent of owners who are refused planning permission^[61], let alone those who do not even apply, should be compensated for any loss of property rights. After 1948 when the planning legislation entered into force in Britain, as Heap concluded, ‘the land would … never be the same again’.^[62] Parliament had legislated the change, recognizing no compensable loss.

B. Leasehold Enfranchisement

In 1979, in James v United Kingdom, trustees under the will of the 2nd Duke of Westminster brought a claim in the European Court of Human Rights (ECtHR) submitting that they had been deprived of their ownership of freehold estates, following their tenants’ enfranchisement under the Leasehold Reform Act 1967 (the 1967 Act). The trustees complained that the compulsory transfers of the reversionary freehold estates to the leaseholders (the enfranchisements) and their valuations, which were not at market value, amounted to a breach of the right to property under A1P1. The Strasbourg court, however, did not find a breach, holding that given the ‘legitimate objectives being pursued in the public interest’ and having regard to the UK’s margin of appreciation, the policy was not unreasonable and did not impose a disproportionate burden on the trustees. The court held that the unfavourable legislative provisions (for the landlord) ‘must be deemed to have a reasonable and objective justification’ and so did not breach the right to property.^[63]

While the court held that compensation terms are material to the assessment of ‘fair balance’ and proportionality^[64] and that normally ‘the taking of property without payment of an amount reasonably related to its value would constitute a disproportionate and unjustifiable interference under A1P1’, it concluded that the ECHR right to property does not, ‘guarantee a right to full compensation in all circumstances’.^[65] Instead, the court held that legitimate objectives of ‘public interest’, including those pursuing economic reform or designed to achieve greater social justice, ‘may call for less than reimbursement of the full market value’.^[66] Consequently, while the availability of compensation for a deprivation as well as a control on use is relevant in determining whether a ‘fair balance’ has been struck, it does not have to constitute market value and may, in exceptional cases, not be required at all.^[67] As the 1967 Act provided a reasonable relationship of proportionality between the means employed (the compulsory sale of the reversionary freehold estate at below market value) and the aim sought to be realized (eliminating ‘social injustices’ where governments conclude that housing ‘cannot entirely be left to the play of market forces’), there was no breach of A1P1.^[68]

The 1967 Act has been followed by further legislation, extending collective enfranchisement rights beyond houses. It has also been supplemented by the introduction of a leaseholder’s right to manage, depriving a landlord of their ability to administer their freehold estate.^[69] The Leasehold and Freehold Reform Act 2024 will (when implemented) make it even cheaper and easier for leaseholders to enfranchise or extend their lease to 990 years, including reducing ground rents to a peppercorn on payment of a premium (despite the provisions of individual leases). While landlords are entitled to compensation, legislation compels compliance with enfranchisement or lease extension claims brought by leaseholders, notwithstanding the original lease terms.

These statutory interventions curtail existing freehold reversionary estates. Conventionally, the ability to decide how to alienate land—to sell it, give it away, or lease it—is a valuable property right.^[70] As Lord Leggett held in Guest v Guest: ‘Intrinsic to any system of private property is the owner’s right to choose what to do with his or her property’.^[71] Yet in England, the freeholds of up to one in five residential properties in England (4.98 million homes^[72]) are subject to disenfranchisement, on increasingly generous terms for leaseholders. If the process is followed, case-specific determinations of applications assessing their proportionality are not required: the enfranchisement is a general measure that does not breach the right to property.^[73] The consequence is that as with instances of compulsory purchase, in Harris’s words: ‘people’s holdings are no longer theirs to dispose of as they please in view of the regulatory encroachments of the modern state’.^[74] Land in general, and reversionary freehold estates in particular, are owned only ‘as authorized’.

C. The Right to Roam

On Monday, 20th March 2000, Michael Meacher, the Minister for the Environment introduced a second reading of the Countryside and Rights of Way Bill, including a ‘right to roam’ over access land. His speech alluded to the long campaign to secure the access this legislation promised ‘an historic Bill’, which ‘finally achieves the aims and aspirations of the great post-war Labour legislation, the National Parks and Access to the Countryside Act 1949, and it fulfils the yearnings of the British people, expressed often dramatically over the past century, for full rights of access to the beauties of our countryside to which we are all heir’.^[75]

The legislation recognized, as one Labour MP put it, that the ‘voluntary approach to improving access has simply not worked in the past… It is now time for legislation’.^[76] Today the right to roam is exercisable on access land of mountains, moor, heath, and downland as well as the coastal margin of the English Coast Path, covering around 8 per cent of England, extending to over million hectares, albeit with 77 per cent in the North of England, with only 2.6 per cent in the more crowded South-East.^[77]

The access right allows people to walk, run, climb, sightsee, or birdwatch on access land and once property is designated as ‘access land’, a landowner cannot exclude a person from entering or ’roaming’ as defined in the Act.^[78] Affected landowners cannot seek damages for a trespass (although there may still be liability in public nuisance), and landowners may be liable for harm, although occupier’s liability is reduced.^[79] The access right is subject to statutory restrictions, so that people may not horse ride, camp, cycle, drive anything other than a mobility scooter or powered wheelchair, use a metal detector, intentionally remove, damage, or destroy any plant, shrub, tree, or root; light, cause, or risk a fire or take any animal other than a dog, which should itself be on a lead around livestock and to protect nesting birds.^[80] Under the 2000 Act, property as authorized removes the ability to exclude ‘roaming’, however, other activities (such as horse riding, cycling, or camping) can still be prohibited or permitted depending on the landowner’s consent.

The majority of access land is privately owned, and many landowners were concerned when the legislation was introduced, with the Bill attracting many critics.^[81] Over 3,000 appeals were lodged against designation of land as access land, of which over 2,500 were upheld, leading mostly to relatively minor amendments.^[82] Yet once again, there was no compensation for landowners. When the Bill reached the House of Lords, questions were asked about the ‘diminution’ of land now subject to access rights and whether this might breach a ‘right to property’.^[83] The suggestion was robustly dismissed by Lord Lester, who focused on arguments of ‘fair balance’, stating that while creating general rights of access across the countryside interferes with the use of the land of property owners affected by the Bill, this ‘is not in itself a breach of Article 1’.^[84] The absence of compensation could be justified on the basis that access rights did not amount to a deprivation of ownership but rather constituted a control on use. Neither Lord Lester, nor the government at the time, saw any conflict with property rights by removing the ability to exclude roamers.^[85]

D. Public Rights

In Day v Shropshire in 2023, Peter Day won his case against a local authority, who had failed to consider statutory open space rights when determining a planning application for green space. Having lost both at first instance and the Court of Appeal, the victory in the Supreme Court was a welcome surprise. The decision rested on complex statutory interpretation, ultimately recognizing that legislation, notably the Open Spaces Act 1906, created a public trust for open space, conferring rights in land with the local authority holding the land on trust for local residents.^[86] While these public trust rights can be removed by an administrative process, until they are, they bind future purchasers and co-exist with private rights.^[87]  Day confirmed that if the land is sold without removing the public trust rights, they will continue to bind the new purchaser—they run with the land.

These public rights to open space are analogous to statutory rights of way, legislatively recognized by the 1932 Rights of Way Act. The legislation simplified dedication, changing the burden of proof so that most of rights of way, including footpaths and bridlepaths, are presumed to have been dedicated after twenty years use unless there is evidence to the contrary (including a notice by the landowner).^[88] These evidential presumptions proved profound when in the National Parks and Access to the Countryside Act 1949, local authorities were required to map rights of way wherever they ‘subsisted’.^[89] Today England and Wales have a network of around 140,000 miles of public rights of way,^[90] albeit including around 32,000 places where footpaths are currently inaccessible.^[91]

These rights of way are public rights, ‘exercisable by anyone, whether he owns land or not, merely by virtue of the general law’.^[92] They run with the land as legal rights in unregistered land and override in registered land,^[93] burdening a purchaser (or adverse possessor^[94]). Public rights can be altered by administrative means^[95] and can be enforced through a range of processes, including in administrative and criminal law or in public nuisance.^[96] Both legislation and judges have been remarkably pragmatic in addressing this co-existence of public and private rights.^[97] A private landowner with a footpath over their land cannot exclude walkers. Their use, and ability to exclude, is only ‘as authorized’.

E. The Extent of Authorization

Recognizing legislative limits on landowners, we see how property in England functions within a public land law framework. We are far from defining property as dominion, to use William Blackstone’s eighteenth-century phrase.^[98] Instead, in England, the concept of property emerged slowly from feudal relationships, taking time to coalesce.^[99] Constitutional, political, and cultural changes were critical, including the rise of Parliament, with statutes both lifting restrictions on (what we would today call) property rights^[100] as well as imposing them,^[101] notably the extinguishment of common rights over land by Enclosure Acts between the twelfth and early twentieth centuries.^[102] Governmental powers to compulsorily purchase, which had followed the ascendancy of Parliament after the Glorious Revolution in 1688, became increasingly marked during the industrial revolutions, later also facilitating the construction of Victorian railways and canals.^[103] Parliamentary involvement also grew during and after the First World War, curtailing rights of landlords’^[104] as well as introducing planning restrictions.^[105] These legislative interventions illustrate the range and reach of public land law, including the longstanding acceptance of property as authorized (whichever form that authorization took).

Today, a landowner can decide to improve their land but cannot undertake a development without planning permission,^[106] and cannot demolish it without at least informing their local authority.^[107] They can paint their home any colour they like unless ‘the painting is for the purpose of advertisement, announcement or direction’^[108] or they live in a conservation area where the colour has an ‘adverse effect on amenity’ (but not aesthetics or taste).^[109] A landowner can leave rubbish out unless smells disturb their neighbour when the local authority can issue a community protection notice enforceable with criminal sanctions (and a neighbour might be able to sue in nuisance).^[110] They can neglect house maintenance unless the property falls into disrepair, when a local authority can serve an amenity notice or an ‘Empty Homes Development Order’.^[111] A landowner must comply with rules on building control, including for fire safety.^[112] They may be required to let their neighbour onto their land to effect repairs or improvements, perhaps even putting up scaffolding.^[113] A landowner may abstract water from a borehole, but only up to a prescribed limit of 20 cubic metres per day.^[114] Even the maxim of ‘ad coelum et ad inferos’— owning from the heavens to the depths—has been significantly curtailed: landowners cannot object to the noise of aeroplanes overhead,^[115] and may be unable to prevent an energy provider from drilling beneath their land for fracking.^[116] If a historic building is listed or in a conservation area, changes may not be made without consent.^[117] If the building is listed, a local planning authority can serve a notice requesting that the owner to undertake works considered necessarily for the preservation of the property.^[118] A landowner may be able to install a shark crashing through their roof—provided they obtain planning permission. However, once installed, the structure may be added to a ‘local heritage asset’ list, restricting future alterations and becoming a material consideration in future planning decisions.^[119] A landlord can rent out their land and regain possession at the end of the tenancy, though the right to seek possession will soon be restricted under the Renters Rights Bill 2024/2025. Landlords must provide electricity and ensure energy efficiency.^[120] They are to take building safety provisions.^[121] These restrictions come from ‘positive enactments’, where government, whether national or local, limit property rules.

As James illustrates, legislative interventions not only control use, they can also permit deprivation, sometimes below market value.^[122] The first phase of building infrastructure for High Speed 2 (HS2) justified the compulsory acquisition of 1,800 properties for around £3.4 billion.^[123] While compensation is payable for compulsorily purchased property, provision for any ‘hope value’ to develop the land can be avoided.^[124] Landowners can also lose their land if a squatter fulfils the requirements for adverse possession.^[125]

Property restrictions are also implemented at scale through administrative decisions. In the second quarter of 2024, local planning authorities received 85,800 applications for planning permission, of which 79,100 were decided with 67,400 (85 per cent) agreed.^[126] In 2023, the Environment Agency issued 536 water abstraction licences.^[127] In 2022–23, heritage bodies made around 26,000 Listed Building Consent decisions for alterations or extensions as well as 273 decisions for demolition.^[128] Around 41,000 Sites of Special Interest need consent to undertake work, 40 per cent of which are on private land and while almost all granted, many have conditions attached.^[129]

If landowners are refused permission—for example, a declined planning application—no compensation is payable, subject only to appeal or costly application for judicial review, even if such a decision has substantially limited how a landowner can use their property. This reflects a core principle of property as authorized: ownership does not guarantee unrestricted use but operates within an evolving legislative and administrative framework. These restrictions are dynamic and often jurisdiction-specific and should inform any theorization of property. The concept of authorization reflects that when someone owns land, the ability to deal with it as they wish may be quite significantly restricted, both by legislation and administrative regimes. Any theorization of property should engage with both private and public land law, recognizing that while property retains a conceptual core, in the form of estates and interests, protected as rights, this core is bounded by legislative and administrative interventions.

4. A Right to Property

Within, and bounded by, these restrictions, lies a right to property,^[130] not as an unqualified entitlement, but as a legally structured and authorized entitlement. This right is recognized both in A1P1 of the ECHR and, more recently, in the UK Supreme Court’s 2024 confirmation of a ‘fundamental’ right to the peaceful enjoyment of property. Neither formulation simply affirms property rights; both recognize legislative limits, establishing the boundaries within which the right to property is protected. A1P1 has long considered what restrictions on are permissible on ownership and, implicitly, conversely, what is protected when someone owns land. These constitutional principles lie at the heart of public land law, illustrating how the ‘right to property’ is subject to limits imposed in the public interest, producing property as authorized.

A. A1P1

A1P1 defines the legal boundaries of property rights within public land law, balancing individual ownership with the public interest. It consists of three limbs, each effectively reflecting the interaction between private entitlements and state intervention. The first establishes the right to peaceful enjoyment of possessions. The second limb recognizes that property may be subject to deprivation, if conditions are lawful, in the public interest, and accompanied by fair compensation with any expropriation satisfying proportionality and necessity requirements, ensuring that individual burdens are not excessive relative to the public benefit.^[131] The third limb allows States to control the use of property in accordance with the general interest, legitimizing interventions as long as both legislations and decisions strike a fair balance between public benefit and private rights.^[132] A1P1 vests the right to property in both natural and legal persons.

Today, ECHR jurisprudence on A1P1 rests on the presumption that expropriation entails compensation, while regulation—as a control on use—generally does not. Strasbourg caselaw confirms that when there is a deprivation of property, compensation is almost always payable, even if, as James illustrates, this need not constitute market value.^[133]

In contrast, a control on use will not infringe a right to property if the interference is lawful and strikes a ‘fair balance’ between the individual’s rights and the general interest. In such situations, compensation may not be required: instead, the availability of compensation contributes to the assessment of fair balance.^[134] In Pine Valley Developments v Ireland, where land was significantly reduced in value when planning permission was ultimately not granted, the court found no breach of A1P1, not least as ‘the land was not left without any meaningful alternative use, for it could have been farmed or leased’.^[135]

Acknowledging the role of the state as a contracting party to the convention, the Strasbourg court affords states a wide margin of appreciation, accepting that domestic governments and legislatures have ‘direct knowledge of their society and its needs’ so that it is ‘natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one’.^[136] In the land use context, Strasbourg has consistently held that it will respect the legislature’s judgment as to what is in the ‘public’ or ‘general’ interest unless that judgment is manifestly without reasonable foundation.^[137]

It is striking how rarely legislative limits on property rights have been held to infringe the right to property.^[138] The Strasbourg court held that legislation requiring compensation for leasehold enfranchisement, even if not at market value, was compatible with A1P1 in James v UK,^[139] also upholding limitation rules underpinning adverse possession as a control on use in Pye v UK, despite the uncompensated loss of land.^[140] The approach has been echoed domestically. In Trailer & Marina Ltd, the Court of Appeal considered whether revised nature conservation protections that inhibited development had violated a landowner’s right to property. Rejecting the claim, Neuberger LJ found a ‘fair balance’ was struck, even without compensation, as the state could ‘properly take the view that the benefit to the community outweighs the detriment to the individual’.^[141] He found no ECHR doctrine that ‘there can be no control of use without compensation’,^[142] even though the value of the land may have been ‘substantially diminished’ after the decision had been made to prioritize resources for nature protection rather than compensating landowners.^[143] The nature conservation legislation did not constitute an infringement of A1P1.

Administrative decisions have certainly been more vulnerable. In Gillow v UK, the Strasbourg court found that housing regulations on Guernsey to be an unjustified infringement of A1P1,^[144] while in Stretch v UK, the court held that a refusal to grant a leasehold option to renew amounted to a breach of A1P1, even though the initial lease had been granted ultra vires.^[145] Domestically, in Mott v Environment Agency, a landowner was successful in challenging a nature conservation decision, since the court held that he had individually shouldered ‘an excessive and disproportionate burden’.^[146] Overall, however, quite extensive land legislation has not been held to breach A1P1 since disputed legislative interventions have been held to meet the ECHR’s requirements: that they are in the public interest, proportionate, strike a fair balance and are lawful.^[147]

B. A Fundamental Right of Property

While private property rights are conceptually well established, courts have only belatedly formulated a right to property in public law terms. In early cases considering legislative limitations, judges simply referred to ‘rights’,^[148] ‘private rights of property’^[149] or ‘possession’,^[150] broadly concluding, to use the words of Lord Macnaghten, that ‘a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament’.^[151]

Recently, and not a little excitingly, the Supreme Court has explicitly framed land law in constitutional terms. In July 2024, in Manchester Ship Canal No 2 (MSC 2), a case about polluted watercourses, the court recognized the ‘important principle’ that there is a ‘fundamental’ right and that legislation affecting this right should be interpreted with regard to the principle of legality. Lord Reed and Lord Hodge held that:

an individual’s right to the peaceful enjoyment of his or her property is a fundamental right, long recognised by the common law and now also protected by the Human Rights Act 1998.^[152]

As the Supreme Court confirmed, when interpreting legislation applicable to a fundamental right, the principle of legality applies. In MSC 2, Lords Reed and Hodge held that the implication of this ‘important principle’ (the fundamental right) is that:

… the process of interpreting a statute which is said to authorise what would otherwise be an unlawful interference with rights of property, or to deprive individuals of rights of action which would otherwise be available to them to protect their property against such interference, brings into play the principle of legality.^[153]

This draws on Lord Hoffmann’s famous formulation of the principle of legality that:

Fundamental rights cannot be overridden by general or ambiguous words… In the absence of express language or necessary implication to the contrary, the courts therefor presume that even the most general words were intended to be subject to the basic rights of the individual.^[154]

The recognition that the principle of legality applies to a fundamental ‘right to the peaceful enjoyment of property’ acknowledges both that property is regulated by the state and that it is constitutionally protected. This does not necessarily contradict the idea of property as authorized, rather the recognition of a common law right as fundamental confirms that authorization must operate within constitutional constraints.

5. The Boundaries of Authorized Property

Public land law structures property rights through legislation, administrative frameworks, and judicial analysis. Identifying a fundamental right to property recognizes land law’s constitutional dimension, whilst the principle of legality acknowledges Parliament’s ability to constrain rights. This section examines how courts interpret these boundaries between a right of property and legislative intervention, illustrating the dynamic scope of property as authorized.

A. Statutory Interpretation and the Principle of Legality

When courts interpret legislation, they adopt a purposive approach, construing legislation in context.^[155] Promoting clarity, Lord Hodge has held that statutory interpretation ‘involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered’.^[156] While some debate remains about the relevance of Parliamentary intention, there is considerable coalescence around the importance on focussing on Parliament’s purpose in enacting the legislation,^[157] with judges generally preferring not to draw on secondary sources.^[158] Courts are reluctant to consider the policy context or political intent behind legislation, the obligation to interpret Parliamentary language, rather than develop it, is keenly felt.^[159] Writing extra-judicially, Lord Burrows has expressed this plainly: ‘the role of the judges is to interpret what Parliament has laid down and it is irrelevant whether the judges agree or disagree with the policy of the Act’.^[160]

Judicial interpretation plays a key role in defining the scope of authorized property. Courts have traditionally accepted statutory restrictions where legislative wording is express or necessarily implied, reinforcing the idea that property is not an unqualified right but an entitlement protected within a structured legal framework. This reflects the concept of property as authorized, in which landownership is shaped not only by private or public rights but also by evolving legislative and administrative constraints.

The established approach holds that where statutory language is clear, courts will uphold limits on property rights. Victorian cases held that while, in cases of deprivation, there was a canon of construction so that while legislation ‘must not’, in the words of Lord Watson in an 1882 dispute over the vesting of railway land, ‘be deemed to take away or extinguish the right of the respondent company’, this was permitted if it appeared ‘by express words, or by plain implication, that it was the intention of the Legislature to do so’ so that Parliament had ‘authorized the thing to be done at all events, and irrespective of its possible interference with existing rights’.^[161] Certainly, early cases, while acknowledging that Parliament could in principle deprive a landowner of their property even without compensation, consistently found that the legislation had not done so.^[162] They set the interpretative bar high, supposing that Parliament’s intention is not to take property without compensation.^[163] Nevertheless, the principle that legislation could, if sufficiently express, deprive a landowner of their property, even without compensation, was accepted.^[164]

Constitutional sensitivity was also evident in early cases interpreting the effects of regulatory intervention. Exploring the effects of newly imposed planning constraints in Belfast in 1960, Lord Radcliffe began by acknowledging the existence of a right to property as a ‘general principle, accepted by the legislature and scrupulously defended by the courts’, so that ‘the title to property or the enjoyment of its possession was not to be compulsorily acquired from a subject unless full compensation was afforded in its place’.^[165] However, he then pivoted, observing the rise of regulation, balancing this ‘vigilance’ in statutory interpretation, noting:

the great movement for the regulation of life in cities and towns in the interests of public health and amenity’ from the end of the nineteenth century onwards, imposing obligations and restrictions on landowners, particularly in urban areas, without compensation … though, of course, in a sense they expropriated certain rights of property.^[166]

Holding that the statute had empowered the planning authority to restrict the development, Lord Radcliffe found that the legislation had empowered the authority to refuse permission to develop without compensation.^[167] The approach demonstrated that the courts were willing to uphold Parliament’s removal of landowners’ right to develop.^[168]

One question MSC 2 now raises is whether the explicit reference to the principle of legality in consideration of a ‘fundamental’ right will change conventional interpretative approaches in relation to property. So far, this seems unlikely. In Symmetry v Swindon BC, a 2022 case concerning planning conditions foreshadowing the recognition of a fundamental right in MSC 2, Lord Hodge held that when, in a 1964 planning decision, Willmer LJ had held that constraints in the 1947 Town and Country Planning Act were ultra vires on the basis of Wednesbury unreasonableness as the Act lacked the necessary ‘express words’, he had applied ‘an early example of the principle of legality’.^[169] Lord Hodge equated the application of the established rule, that ‘a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms’^[170] with the principle of legality. This approach was echoed in MSC 2, where Lords Reed and Hodge confirmed that the principle’s ‘requirement of express language or necessary implication imposes a high hurdle’ in relation to the fundamental right.^[171]

The question whether the principle of legality requires a new approach in interpreting legislation restricting land use or ownership is likely to be considered in Darwall. One point raised in argument was whether applying the principle of legality to the Dartmoor Commons Act 1985 meant that the Darwalls’ fundamental right of peaceful enjoyment of property could be infringed by the statutory language facilitating ‘open-air recreation’. One reason for this might be that the language is ambiguous—if it is held that it is not clear whether ‘open air recreation’ includes wild camping or not (although other statutes concerned with access have explicitly prohibited camping^[172]). While both the Court of Appeal and Flaux J held the provision not to be ambiguous, they reached their respective conclusions on diametrically opposed reasoning.^[173] This will be a question of statutory interpretation for the Supreme Court.

A further issue for the Supreme Court is how to interpret the ‘general words’ Lord Hoffmann cautioned against, in the property context. While the phrase could be a synonym for ‘insufficiently precise’ the formulation could have distinctive implications in the land context. In Strasbourg, the court has held that under A1P1, legislation needs to be ‘general’ so that it does not impose an excessive individual burden on an individual landowner.^[174] Similarly, in 2023, in Annington v Secretary of State for Defence, where Secretary of State enfranchised properties under the Leasehold Reform Act 1967, Holgate J. held that the legislation was a ‘general measure’ in accordance with A1P1, so that no individual case-by-case assessment was required.

This distinction between general and individual property obligations is significant for public land law, as it reflects the balance between public interests and individual ownership entitlements. If general legislative measures can impose broad property obligations without individual case-by-case assessments, this reinforces the concept that property rights exist within a structured system of governance. On this approach, the Dartmoor Commons Act 1985 does not impose an excessive burden on the Darwalls as individual landowners even though they own over 3,000 acres (albeit purchased knowing of the legislative provisions and National Park bylaws permitting wild camping). Instead, a generalized approach reflects a legislative determination of access rights within a broader public framework.^[175] If, conversely, the Supreme Court were to adopt a narrower interpretation of ‘general words’, this could constrain Parliament’s ability to limit property entitlements within public land law, albeit with quite significant constitutional implications.

A constitutional approach also raises the question of which rights of property are protected. While MSC 2 focuses on estate-holders, the analysis could also affect owners of other property rights. Since 1925, English and Welsh land law has structured itself around a grammar of estates and interests. Could a fundamental right to peaceful enjoyment of property include those with private interests in land, such as an easement or mortgage, or even a public right, such as a right of way or interest under a public trust? Should these property interests, which bind both current and future landowners also be considered fundamental, bringing the principle of legality into play when interpreting legislation? Theorizing ‘property rights’, without distinguishing between estates and interests enables comparison across jurisdictions and subjects (notably in tort law). In land law, however, the elision raises further questions.

B. A1P1: Overlap or Daylight?

The relationship between a fundamental right of property and A1P1 is key to defining the limits of property as authorized. While the Supreme Court in MSC 2 equated the fundamental right with A1P1 (‘long recognized by the common law and now also protected by the Human Rights Act 1998’^[176]), it remains unclear whether this recognition simply reinforces existing human rights protections or introduces a more robust constitutional constraint on legislative intervention. If courts apply the principle of legality to property disputes more rigorously than under the established approach under A1P1, this could narrow the scope of legislative authorization. Is there daylight between the likely outcomes under A1P1 and the ‘fundamental’ common law right?

There are good reasons that the Darwalls’ counsel did not base their claim on A1P1. It is quite clear that the Dartmoor Commons Act 1985 does not deprive the Darwalls of their property. Instead, the 1985 Act can be understood as a ‘control on use’, inhibiting any claim for trespass, granting rights of access.^[177] Were the legislation to be considered in the context of an A1P1 claim, seeking a declaration of incompatibility under the Human Rights Act 1998,^[178] the Darwalls would have to show that the rights of access did not constitute ‘fair balance’ and were disproportionate in the absence of compensation.^[179] Given the Act’s wider recreational purpose, as well as Parliamentary approval in a context where the Strasbourg court conventionally grants a wide margin of appreciation,^[180] it is unlikely that such a lack of fair balance or proportionality could be made out. This is almost certainly why a A1P1 claim was not pleaded before the court.

Consequently, while there is no inherent reason why a fundamental right of property might not succeed where an A1P1 claim would fail, since Convention and common law rights are not directly correlated,^[181] such a conclusion would introduce quite significant daylight between the two. A finding that interpreting ‘open recreation’ as including wild camping would infringe the Darwalls’ fundamental right of property, but not their A1P1 right, would suggest that domestic constitutional protection for property could be broader than A1P1. This would raise questions for public land law including whether the newly recognized fundamental right establishes firmer constraints on legislative authority or whether it reinforces the A1P1 approach, aligning the outcomes, if not necessarily the reasoning, between ECHR and common law rights. It seems most plausible that in Darwall the fundamental and A1P1 right will overlap, avoiding daylight between the two.

6. Property and Politics

Public land law illustrates that property debates are shaped by ideological differences that evolve over time, influencing the legal boundaries of property as authorized. Unlike purely private property disputes, which often revolve around individual entitlements and can be opaque about the preference for maintaining status quo entitlements, public land law explicitly involves questions of the public interests and the role for legislative and administrative intervention. As Maria Lee writes in her analysis of the public interest in nuisance:

The long tradition of protecting the rights of individuals in the face of the powerful state, which is not always either benign or effective, remains urgent. Where we stand on this will depend in part on ideology, as well as on the ideologies that we perceive to dominate administrative and judicial decision-making… Some ambivalence about whether the individual should be protected from the collective, or vice versa, is inevitable.^[182]

Lee’s argument highlights a key normative question for public land law: should legal frameworks prioritize individual property protections against legislative intervention, or should they prioritize the public interest? This tension is particularly evident in constitutional property debates. For while recognizing property as a fundamental right may empower landowners where legislative constraints are ambiguous or overly general—applying the principle of legality—such recognition is not inherently progressive. We should not assume that stronger constitutional property protections necessarily advance social justice, as they may also entrench status quo entitlements over the public interest.

Scholars have urged caution over the extent of the protection conferred on constitutional property rights. In South Africa, André van der Walt argued that we should acknowledge the ‘relatively modest systemic status of property rights’, and not presume that these should necessarily have priority over other fundamental rights or wider societal concerns.^[183] Similarly, analysing the Irish constitution, Rachael Walsh warns that tensions can arise between ‘a generalized commitment to a thick understanding of constitutional property rights’ on the one hand and ‘progressive property’s expressed aim of improving practical legal outcomes for marginalized individuals and communities’ on the other.^[184] Van der Walt and Walsh both suggest that ambiguity in determining how such property rights should be balanced against collective interests or burdens or interests avoiding rhetorical and political over-inflation of property rights’ constitutional protection.^[185] Questions of ‘over’ or ‘under’ protection of property rights are highly contested.

Such political and ideological divides have long been evident in Parliament. Bemoaning proposals for land reform in the House of Lords in 1890, the Earl of Wemyss, characterized the Access to the Mountains Bill 1890 and the 1889 Leasehold Enfranchisement Bill as ‘socialistic legislation’, defining this as the ‘legislative curtailment of liberty and legislative confiscation of property for the benefit of the politician’ and ‘grandmotherly legislation’.^[186] Similarly, historian John Sheail quotes from one 1938 Home Office official tasked with preparing for land reform:

far from being a straightforward matter, the balancing of the rights of public access and those of property owners was ‘one of the most difficult and keenly controversial problems that can arise’.^[187]

When Michael Meacher introduced legislation to implement the right to roam in 1999, he added with rhetorical flourish that this ‘finally brings to reality the dream of Lloyd George that nobody should be a trespasser in the land of their birth’.^[188] His political fervour was matched by the Bill’s opponents. The Country Landowners Association accused the government of ‘destroying the goodwill of the countryside’, while the Conservative Shadow Environment Secretary, Tim Yeo, claimed that the governments ‘ideological fixation’ politicized the countryside protection.^[189]

Yet equally, sometimes even quite fundamental land law reform reflects consensus, including the 1947 planning framework after the destruction of the Second World War.^[190] Agreement also underpinned the statutory presumption in favour of rights of way in 1932, where Lord Buckmaster successfully introduced a private member’s Bill presuming dedication after 20 years, describing the presumption (which underpins English footpath protection to this day) as ‘one of those small legal Bills which never excites the interest of a Government’.^[191] And ultimately, despite the oratory around the right to roam, the 1999–2000 complaints were muted, reflecting decades of campaigning and discussion, including previous failures to introduce such a provision (Lewis Silkin had rejected the call for a similar right to roam in the 1949 Parliamentary debates^[192]). Given the Labour Government’s large electoral majority, there was limited scope for resistance, and these were popular, democratic changes. Nationally, 80 per cent of people were in favour of greater access rights and today the right to roam has become broadly accepted, with a majority favouring its extension,^[193] echoing Scotland’s ‘right of responsible access’.^[194]

These debates over property law reform—in 1890, 1938, or 1999—underscore the ideological context for land governance. At the core of these disputes lies a tension: should property law recognize public interest obligations or prioritize private entitlements? The answer is shaped not just by legal tradition but by the physical realities of land itself. As Peñalver argues, land’s finitude imposes regulatory constraints distinct from other forms of property, shaping legal frameworks for housing, conservation, and environmental protection.^[195]

Studying public land law illustrates that limiting land law analyses to the ‘bull’s eye’ of private land law, relegating environmental controls, planning, or social housing to public law^[196] is descriptively partial. The approach also illustrates normative implications within private land law, which may prioritize status quo entitlements,^[197] obscuring whether or how, the public interest should be considered in land law. While this paper has not explicitly argued that the public interest should be better considered in legislation and administrative frameworks that authorize ownership and use—focussing instead on how these interactions operate—advocates have long made normative arguments in favour of changing land law to better protect public interests. Such legislative and policy commitments are often quite transparent.^[198] Engaging with public land law requires more than a technical exercise in statutory interpretation—it can reveal ideological and normative propositions embedded in land law, where conflicts over ownership and use can reflect competing visions of the protection to be accorded to private and public interests.

7. Conclusion

Darwall is a case of caveat emptor. The question is: what did the landowners buy? Does their ownership permit them to exclude wild campers, or are they required to admit them onto their land? The answer to this question rests on statutory interpretation of Section 10 of the Dartmoor Commons Act 1985, with the much-awaited Supreme Court decision set to clarify the meaning of ‘open air recreation’ and, potentially, offer guidance on how statutory interpretation should engage with the newly recognized ‘fundamental’ right to the peaceful enjoyment of property.

Yet this is not simply a question of statutory construction, it is a question of public land law, the legal framework that governs land ownership and use in the public interest. This paper has argued that public land law is an important yet under-explored field of study, recognizing that legislative and administrative frameworks already balance private property rights, public rights, and the public interest. The analysis has introduced the concept of ‘property as authorized’, drawing on Harris’s idea of ‘authorized self-seekingness’ to suggest that ownership is not a static, unqualified entitlement but an ongoing legal relationship shaped by statutory and administrative governance.

Land law is a remarkably dynamic subject. While private law analyses often strive for coherence, public land law recognizes that legislation can introduce sharp shifts in policy, whether through the introduction of planning controls in 1947, leasehold reform in 1967, or access rights in 2000. Today, Darwall illustrates a dispute not just over statutory interpretation but also asks how courts should interpret a legislative constraint on property, now protected as a fundamental common law right, possibly invoking the principle of legality. This paper has suggested that these public land law disputes are not outliers but are central to understanding land law, illustrating how property rights are embedded in a legal and administrative order that negotiates between private and public rights and interests. By situating property within this framework, public land law enables us to examine conflicts over land ownership and use, highlighting challenges that continue to shape the legal landscape.

8. Coda

In May 2025, the Supreme Court found decisively against the Darwalls, echoing the Court of Appeal, in treating the dispute, once more, as a question of statutory interpretation.^[199] Construing the Dartmoor Commons Act 1985 within the National Parks and Access to the Countryside Act 1949’s framework, Lord Sales and Stephens relied on the by now familiar interpretative principles of purpose and context.^[200] Since the 1949 Act had expressly excluded ‘organised games’ but not camping from the definition of ‘open air recreation’, the Supreme Court held that the 1985 Act should be read as permitting wild camping.^[201] On this interpretation, the legislation assumes recreational use of the commons, including camping. This explains why the 1985 Act granted the Dartmoor National Park Authority (DNPA) regulatory powers to make byelaws, appoint wardens and post notices.^[202] The DNPA’s powers to protect against ‘unlawful interference’ and to repair damage caused by the public on foot or horseback also presuppose camping as a legitimate form of recreation.^[203] Wild camping, the Supreme Court concluded, falls squarely within the anticipated scope of open air recreation.

Although the Darwalls invoked MSC 2’s ‘fundamental’ right to property^[204] in argument, Lords Sales and Stephens did not adopt this language. Instead, the right at stake was framed as the ‘right to protect private property’, in this context from trespass.^[205] The judgment acknowledges the application of the principle of legality but found no ambiguity in the statute^[206], and did not address the status or effect of ‘general’ words in Lord Hoffmann’s formulation.^[207] Stepping back from the constitutional register in MSC 2, Darwall takes a more restrained approach, declining to affirm property as fundamental and treating Parliament’s words as authoritative. The judgment illustrates how courts delineate the boundaries of ‘the right to protect property’, without considering whether protection and enjoyment (as in MSC 2) are the same or how the right might interact with A1P1. This judicial restraint, focused on interpretation, illustrates that property is not simply a private entitlement capable of abstraction across jurisdictions, but a legal relationship structured by both statute and the common law. The right to exclude, long treated as a core incident of ownership, is once again shown to be capable of Parliamentary limitation.

Darwall remains a paradigmatic case for public land law. It was not a ‘quintessentially private law dispute’ as Flaux J had suggested at first instance, indeed, the Supreme Court confirmed that the Attorney General should have been joined as a defendant so that any declaration could have been made binding on the public.^[208] And while the conceptual framework of authorized property is, unsurprisingly, absent from the judgment, Darwall exemplifies its logic: that property rights are structured by legislative choices and judicial analysis, with courts acting not as authors of property’s content but as its institutional interpreters.

1. Dartmoor National Park Authority, Backpack Camping on the Commons of Dartmoor: Report of the Chief Executive (National Park Officer), 27 January 2023, NPA/23/007. ↑
2. The Darwalls statement to court in September 2022, submitted to the Dartmoor National Park Authority, Friday 27 January 2023 https://www.dartmoor.gov.uk/__data/assets/pdf_file/0023/460274/2023-01-27-Authority-Minutes.pdf accessed 21 March 2025. ↑
3. Darwall v DNPA [2023] EWCA Civ 927 [1 and 5]. ↑
4. Darwall v DNPA [2023] EWHC 35 (Ch) [92]. This characterization meant that the Darwalls did not have to explain why they were out of time in public law. ↑
5. Day v Shropshire [2023] UKSC 8 and Manchester Ship Canal Ltd v United Utilities Water Ltd 2 [2024] UKSC 2 (MSC 2). The effects of statutory and administrative authorization on private property rights are also important topics in tort law, though there is beyond the scope of this paper. ↑
6. Although land law applies to both England and Wales, devolution has led to distinctive legislative and administrative interventions. Accordingly, this paper focuses solely on the law of England. ↑
7. On property and human rights, see Tom Allen, Property and The Human Rights Act 1998 (Hart Publishing 2005), Amy Goymour, ‘Property and Housing’ in David Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011), Frankie McCarthy, ‘Protection of Property and the European Convention on Human Rights’ (2017) 6 Property Rights Conference Journal 299 and Douglas Maxwell, The Human Right to Property: A Practical Approach to Article 1 of Protocol No.1 to the ECHR (Hart Publishing 2022). ↑
8. Kevin Gray, ‘Human Property Rights: The Politics of Expropriation’ 2005 (16) Stellenbosch Law Review 398 and Emma JL Waring, ‘Private-To-Private Takings and the Stability of Property’ (2013) 24 King’s Law Journal 237. ↑
9. For notable exceptions, see Kevin Gray, ‘Can Environmental Regulation Constitute a Taking of Property at Common Law?’ (2007) 24 Environmental and Planning Law Journal 161 and Eloise Scotford and Rachael Walsh, ‘The Symbiosis of Property and English Environmental Law: Property Rights in a Public Law Context’ (2013) 76 MLR 1010. ↑
10. While it is plausible to resist a divide between public and private land law, it is also credible to suggest that within this legislative framework, public and private land law co-exist (the approach taken here). For critiques of such a divide, see the analysis by FHS Lawson in The Rational Strength of Law (Stevens & Son 1951) 23; Carol Harlow, ‘“Public” and “Private” Law: Definition without Distinction’ (1980) 43 MLR 241; and Dawn Oliver, Common Values and the Public-Private Divide (CUP 1999). ↑
11. Law Property Act 1925 ss 1 and 4. ↑
12. Pre-pandemic, this aim was to be achieved by 2020 (HMLR, Annual report and accounts 2019/20: Transforming in uncertainty, 2020, HC582). More recently, a date for this target has been quietly dropped from official publications. ↑
13. Land Registration Act 2002, ss 23 and 58 subject to Scheds 4 and 8. See Martin Dixon in the opening chapter of Modern Land Law (13th edn, Routledge 2024). ↑
14. For instance, under Land Registration Act 2002, Sched 3 paras 2 and 5. ↑
15. Though see Gray and Scotford and Walsh (n 9). ↑
16. Day (n 5), Antonia Layard ‘Public (Trust) Rights in Open Space: Day v Shropshire Council’ (2024) 87 MLR 1360. ↑
17. MSC 2 (n 5) [17–18] and [108]. While the interaction between private and public property rights raises interesting questions, such debates are beyond the scope of this paper, which aims in the first instance to highlight the significance of public land law. On this interaction, see Philip Sales, ‘Rights and Fundamental Rights in English Law’ (2016) 75 CLJ 86. For an analysis of the structure of property rights as a matter of internal legal logic and coherence, see Ben McFarlane, The Structure of Property Law (Hart 2008) and Simon Gardner, An Introduction to Land Law (3rd edn, Hart 2012). It is worth noting that doctrinal categories, including rights of way, covenants, or adverse possession are increasingly shaped by policy and statutory objectives, blurring the line between private and public land law. While there may be conceptual overlaps between structured property entitlements and the idea of property as authorized, this paper focuses on legislative and administrative authorization rather than common law formulations. ↑
18. ECtHR caselaw tends not use the term ‘private property’. ↑
19. While the paper uses the term ‘property’, the analysis is confined to land law, rather than personal, intellectual, or medical property. The central claim—that authorization is produced by legislative and administrative intervention onto a core idea of property—could apply across property categories, though the forms and consequences of intervention differ substantially. In this sense, land is a distinct form of property and land law is only a part of ‘property law’. ↑
20. To this extent the approach here diverges from Harris’s analysis, as Harris treats ownership as a constituent part of property and focuses on the structure and justification of property as a legal institution. Nevertheless, the concept of ‘authorization’ is drawn from his work. ↑
21. Tort law rarely distinguishes between estates and interests, for an exception in relation to an easement in nuisance Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514 [40]. ↑
22. As 5.2 notes, it is as yet unclear whether the fundamental nature extends to interests in land as well as estates. ↑
23. The scholarship here is extensive, starting points include: Richard A Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard University Press 1985); William A Fischel, Regulatory Takings: Law, Economics, and Politics (Harvard University Press 1995); William Michael Treanor, ‘The Original Understanding of the Takings Clause and the Political Process’ (1995) 95 Columbia Law Review 782; Matthew P Harrington, ‘Regulatory Takings and the Original Understanding of the Takings Clause’ (2004) 45 William and Mary Law Review 2053; Bernadette Atuahene, ‘Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss’ (2016) 12 Annual Review of Law and Social Science 171; Lee Anne Fennell, ‘Escape Room: Implicit Takings After Cedar Point Nursery’ (2022) 17 Duke Journal of Constitutional Law & Public Policy 1. ↑
24. Christopher J Roederer, ‘Remedies for Regulatory Takings (Constructive Expropriations), Deprivations, Expropriations or Custodianship in South Africa and the U.S.A.’ (2017) Howard Human & Civil Rights Law Review 87. ↑
25. Rachael Walsh, Property Rights and Social Justice: Progressive Property in Action (CUP 2021); James McGovern, ‘The “Bundle of Rights” Theory of Property: An Irish Constitutional Solution to a Universal Conceptual Problem’ (2024) Irish Jurist 108–32. ↑
26. Malcolm Combe, Jayne Glass and Annie Tindley (eds), Land Reform in Scotland: History, Law and Policy (Edinburgh University Press 2020). ↑
27. Nicole Graham, ‘This Is Not a Thing: Land, Sustainability and Legal Education’ 2014 (26) Journal of Environmental Law 395. See also Gray and Scotford and Walsh (n 9). ↑
28. Though see David Feldman, Frank Meisel and Peter Cook, ‘Property and Public Protest’ in Peter Birks (ed), Property and Protection: Essays in Honour of Brian Harvey (Hart Publishing 2000) 31. ↑
29. For a notable exception, albeit ultimately obiter, see Belfast Corporation v OD Cars [1960] AD 490. ↑
30. See the cases discussed in Section 5.A. ↑
31. Gray (n 9) 165. See also, Kevin Gray and Susan Francis Gray, ‘Private Property and Public Propriety’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999): ‘The language of ’property’ may have more to do with ‘propriety’ than with entitlement’, 13. ↑
32. Gray (n 9), 161. ↑
33. For an exceptionally clear analysis see Belfast (n 29). For historical analyses, see Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (OUP 1994), Julian Hoppit, ‘Compulsion, Compensation and Property Rights in Britain, 1688–1833’ (2011) 210 Past & Present 93 and Charles J Reid Jr, ‘The Seventeenth-Century Revolution in the English Land Law’ (1995) 43 Cleveland State Law Review 221. ↑
34. JW Harris, Property and Justice (OUP 1996), 90. ↑
35. Ibid. Harris’s approach has been developed as recognizing the significance of an owner’s exclusive use, where landowners can ‘set the agenda’ for their land. For an analogous formulation, resting on exclusive use, see Larissa Katz, ‘Exclusion and Exclusivity in Property Law’ (2008) 58 U Toronto LJ 275. This article, however, uses a more doctrinal, rather than conceptual, formulation of ownership than Harris or Katz. ↑
36. Harris (n 34) 90. ↑
37. Harris distinguished bundle of rights theories, concluding that such an approach is insufficient on its own to fully capture the nature of ownership, which has an essential structural core. ↑
38. Scotford and Walsh (n 10) 1011. ↑
39. Ibid. They take the concept from F. Philbrick, ‘Changing Conceptions of Property in Law’ (1938) 86 Univ of Penn L Rev 691, 695. ↑
40. See Harris (n 34); and on dynamism, Kevin Gray, ‘Property in Thin Air’ (1991) 50 CLJ 252. This approach also echoes Harris’s suggestion that while the well-being of every citizen of a modern state requires that his or her society should maintain a property institution, the background property right is historically situated and is not a timeless natural right, JW Harris, ‘Is Property a Human Right?’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 65. ↑
41. This analysis does not consider how the concept of numerus clausus determines the internal boundaries between categories of personal and property rights, though this a question relevant to understanding the core, see B Rudden, ‘Economic Theory v Property Law: The Numerus Clausus Problem’ in J Eekelaar and J Bell (eds), Oxford Essays in Jurisprudence (3rd series, OUP 1987) and Peter Sparkes, ‘Certainty of Property: Numerus Clausus or the Rule with No Name?’ (2012) 20 European Review of Private Law 769. ↑
42. Joseph W Singer, Property as the Law of Democracy (2014) 63 Duke Law Journal 1287; Scotford and Walsh (n 9). ↑
43. Blackstone’s formulation was that property is ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’, William Blackstone, Commentaries on the Laws of England, vol 1 (1st edn, Clarendon Press 1765). For critiques of overly literal interpretations, see Carol M Rose, ‘Blackstone’s Anxieties: The Homelessness of the Law’ (1992) 98 Yale LJ 3 and David B Schorr, ‘How Blackstone Became a Blackstonian’ (2009) 10 Theoretical Inquiries in Law 103. ↑
44. Property theorists do not always address these legislative interventions, e.g., Thomas W Merrill, ‘Property and the Right to Exclude’, (1998) 77 Neb L Rev 730 (‘Give someone the right to exclude others from a valued resource…and you give them property. Deny someone the exclusion right and they do not have property’). This point is well made by John Lovett, ‘Progressive Property in Action: The Land Reform (Scotland) Act Progressive Property in Action: The Land Reform (Scotland) Act 2003’ (2003) 89 Neb L Rev. ↑
45. Harris (n 34), 71. ↑
46. Joseph W Singer, The Edges of the Field: Lessons on the Obligations of Ownership (Beacon Press 2000). ↑
47. Gregory S Alexander, ‘The Social-Obligation Norm in American Property Law’ (2009) 94 Cornell Law Review 745; Gregory S Alexander, Property and Human Flourishing (Oxford University Press 2018). ↑
48. Jedediah Purdy, The Meaning of Property: Freedom, Community, and the Legal Imagination (Yale University Press 2010). ↑
49. Harris (n 34), 90. ↑
50. For example, see the Land Registration Act 2002, Schedule 3, para 5 and Day v Shropshire Council (n 5). ↑
51. HC Deb 29 January 1947, vol 432, col 9. ↑
52. If landowners were granted approval to build, they had to pay a ‘betterment’ charge, representing the increase in land value arising from the development, Parts III and IV of the Town and Country Planning Act 1947. ↑
53. See Donald Monson and Astrid Monson, ‘The Development and Practice of Compensation and Betterment in Present English Planning Law’ (1949) 25 Land Economics 173 and J Charlesworth, ‘Planning under the 1947 Act’ (1948) 1 Planning Outlook 36. ↑
54. Desmond Heap, ‘New Developments in British Land Planning Law—1954 and After’ (1954) Law and Contemporary Problems 496. ↑
55. Daniel Bentley, ‘Land of Make-Believe: Compensating Landowners for What Might Have Been’ Civitas October 2018. Kevin Gray notes that the same conclusion was reached in the American Context (n 9). ↑
56. Town and Country Planning Act 1990, ss 55 and 57. Permitted exceptions may apply. ↑
57. Planning and Compulsory Purchase Act 2004, s 17(3). ↑
58. Town and Country Planning Act 1990 s 70(2) and Planning and Compulsory Purchase Act 2004 s.38. ↑
59. Unless exceptions apply, Town and Country Planning Act 1990 s 65(5). Ownership of the land is not a prerequisite for making a planning application. ↑
60. Town and Country Planning Act 1990 ss 171–72. ↑
61. Ministry of Housing, Communities and Local Government, ‘Planning Applications in England: June to Sept 2024 Statistical Release’ (Gov.uk, 16 January 2025). https:// www.gov.uk/government/statistics/planning-applications-in-england- january-to-march-2024/planning-applications-in-england-january-to- march-2024-statistical- release#:~:text=Overall%20during%20the%2040%20quarters,refused%20(Live%20Table%20PDR2 accessed 21 March 2025. ↑
62. Desmond Heap, ‘The British Experience’ (1987) 50 Law and Contemporary Problems 31, 31. ↑
63. James v United Kingdom (1986) 8 EHRR 123, [77]. ↑
64. Ibid [54]. See also Lithgow and Others v United Kingdom (1986) 8 EHRR 329 [121]. ↑
65. Ibid. ↑
66. Ibid at [18] and [54]. ↑
67. Ibid [54]. For an exception, see Jahn and Others v Germany (2006) 42 EHRR 4, decided in the context of German reunification. ↑
68. Ibid [47]. The approach taken in James has been consistently upheld, e.g., in Lithgow (n 66) and Hatton v UK. In relation to Article 8, see Hatton v UK [97], referencing James on this point, noting the ‘the fundamentally subsidiary role of the Convention’. ↑
69. Notably under the Leasehold Reform Housing and Urban Development Act 1993 and the Commonhold and Leasehold Reform Act 2002. ↑
70. AM Honoré, ‘Ownership’ in AG Guest (ed), Oxford Essays in Jurisprudence (OUP 1961). ↑
71. [2022] UKSC 27 [107]. ↑
72. Explanatory Notes to the Leasehold and Freehold Reform Act 2024. ↑
73. R (Annington Properties Limited) v Secretary of State for Defence [2023] EWHC 1154 (Admin) [597–603]. ↑
74. Harris (n 34). ↑
75. HC Deb 20 March 2000, vol 346, col 654. ↑
76. Quoted in The Independent, ‘Labour Caves into Rich Over Your Right to Roam’ (The Independent, 18 January 2000) https://www.independent.co.uk/news/labour-caves-in-to-rich-over-your-right-to-roam-1139250.html accessed 21 March 2025. ↑
77. House of Commons Committee of Public Accounts, The right of access to open countryside (HC 91, 2006–07) 9. ↑
78. Countryside and Rights of Way 2000, s 2 and Schedule 2, para 1. ↑
79. Countryside and Rights of Way 2000, s 13. See also the Dartmoor Commons Act 1985, s 10(2). ↑
80. Countryside and Rights of Way 2000, Schedule 2, para 1. ↑
81. Public Accounts Committee (n 77) 12. ↑
82. Ibid, though note the controversy surrounding Vixen Tor on Dartmoor, see Jonathan Mitchell, ‘What Public Presence? Access, Commons and Property Rights’ (2012) 17 Social & Legal Studies 351. De-designation of an access site is possible, if there are grounds in land management, public safety or nature conservation, which are subject to a consultative process. For example, see Hampton Meadow at https://consult.defra.gov.uk/natural-england/open-access-restriction-at-hampton-meadow-2024/ accessed 21 March 2025. ↑
83. HL Deb 23 November 2000, vol 619, col 961, noting the provisions for possible compensation under the National Parks and Access to the Countryside Act 1949 Act, ss 70–72 and the 1980 Highways Act s 28 (in relation to new footpaths). ↑
84. Ibid, col 1012. ↑
85. Though note that many activities are not permitted, as set out in CROW 2000, Schedule 2. ↑
86. Day v Shropshire Council (n 5). ↑
87. Ibid, 64. Antonia Layard, ‘Public (Trust) Rights in Open Space: Day v Shropshire Council’ (2024) 87 MLR 1360. ↑
88. Rights of Way Act 1932 s 1, now the Highways Act 1980 s 31. ↑
89. National Parks and Access to the Countryside Act 1949 Act, s 27. Today dedication primarily occurs under the Highways Act 1980 s 31(1) on similar principles. ↑
90. Planning Inspectorate, Guidance on Procedures for Considering Objections to Definitive Map and Public Path Orders, November 2024. ↑
91. BBC News, ‘Exploring England’s 140,000 Miles of Public Paths’ (BBC News, 7 July 2023). https://www.bbc.co.uk/news/science-environment-67937253, accessed 26 March 2025. ↑
92. Land Registration Act 2002, Explanatory Notes, para 213. ↑
93. Schedule 3, para 5 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 passim, see Arden LJ in Smith v Land Registry [2010] EWCA Civ 200, 22. ↑
94. Smith, ibid. ↑
95. Highways Act 1980, ss 118–19, Town and Country Planning Act 1990 s 257. ↑
96. For example, see Highway Act 1980 ss 118–19, Commons Act 1876, s 29. ↑
97. See Lord Hoffman in Oxfordshire CC v Oxford City Council [2006] UKHL 25 at 57 and R (Lewis) v Redcar and Cleveland Borough Council (No 2), [2010] UKSC 11 at [36], see also Lord Hope at [76] as well as Lady Rose in Day v Shropshire (n 6). ↑
98. William Blackstone, Commentaries on the Laws of England, Book 2, Chapter 5 (1765–1769). ↑
99. See generally GE Aylmer, ‘The Meaning and Definition of “Property” in Seventeenth-Century England’ (1980) 86 Past & Present 87; Charles Reid, ‘The Seventeenth Century Revolution in the English Land Law’ (1995) 43 Clev St L Rev 100; AR Buck, ‘Property, Aristocracy and the Reform of the Land Law in Early Nineteenth Century England’ (1995) 16 Journal of Legal History 63. ↑
100. Notably the 1660 Abolition of Tenures Act, which Blackstone held to be ‘a greater acquisition to the civil property of this kingdom than even Magna Carta itself’ as well as the Real Property Limitation Act and The Fines and Recoveries Act both in 1833, Blackstone (n 98). ↑
101. For example, for widows under the Dower Act 1833, granting their husbands freedom of alienation, Buck (n 61), though arguably this just changes one owner for another. ↑
102. Joan Thirsk, Agrarian Regions and Agricultural History in England, 1500–1750 (Macmillan, 1987). ↑
103. Including the slum clearance provisions of the Housing Act 1930 and the Emergency Powers (Defence) Act 1939 following the outbreak of the war, see generally Michael Barnes and others, The Law of Compulsory Purchase and Compensation (Hart Publishing 2014). ↑
104. Including the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, the Landlord and Tenant Act 1927 and the Agricultural Holdings Act 1923. ↑
105. Including the Town and Country Planning Act 1932 and the Restriction of Ribbon Development Act 1935. ↑
106. Unless they are exercising permitted development rights, e.g., under Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596. ↑
107. Ibid, Part 11. ↑
108. Ibid, Schedule 2, Part 2, Class C. ↑
109. Town and Country Planning Act 1990, s 215; R (on the application of Zipporah Lisle-Mainwaring) v Isleworth Crown Court and Kensington and Chelsea RLBC [2017] EWHC 904 (Admin) ↑
110. Community Protection Notices are issued under the Anti-Social Behaviour, Crime and Policing Act 2014, Sections 43–58. ↑
111. Town and Country Planning Act 1990, s 215 (amenity notice) Chapter 2 of Part 4 of the Housing Act 2004 (Empty Dwelling Management Order). ↑
112. Safety Act 2021, Building Safety Act 2022, The Building Safety (Leaseholder Protections) (England) Regulations 2022 and Access to Neighbouring Land Act 1992 ↑
113. Party Walls Act 1996. ↑
114. Water Resources Act 1991 and Water Act 200, this changes the common law position in Bradford v Pickles [1895] AC 587. ↑
115. Section 76 of the Civil Aviation Act 1982 expressly excludes an action for nuisance owing to aircraft, but section 1 of the Land Compensation Act 1973 provides for compensation for neighbours (including in respect of nuisance by noise attributable to aircraft) when land is developed as an aerodrome. ↑
116. While Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35 found a trespass, see now Infrastructure Act 2015, s 43. ↑
117. Planning (Listed Buildings and Conservation Areas) Act 1990, unless they do not ‘affect the character of the building as one of special architectural or historic interest’, s7. ↑
118. Ibid, ss 47, 47 and 54 – should be 118 Ibid, ss 47, 48 and 54. ↑
119. (1992) 7 P.A.D. 481 for the initial decision. ↑
120. Including the Landlord and Tenant Act 1985, Section 11, Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, Gas Safety (Installation and Use) Regulations 1998 and Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015. ↑
121. Legislation includes the Building Act 1984, ss 1, 77–78; Building Safety Act 2022 and The Regulatory Reform (Fire Safety) Order 2005. ↑
122. Leasehold Reform Act 1967, s 2(1). Estimates vary but for one analysis see National Audit Office, Department for Transport and HS2 Ltd: Investigation into land and property acquisition for Phase One (London to the West Midlands) of the High Speed 2 programme, HC 1531 SESSION 2017–2019. ↑
123. The Guardian, ‘£600m of Public Money Spent Buying Up Property in North of England for HS2’ (The Guardian, 29 September 2023) https://www.theguardian.com/uk-news/2023/sep/29/600m-of-public-money-spent-buying-up-property-in-north-of-england-for-hs2 accessed 26 March 2025. ↑
124. Levelling Up and Regeneration Act 2023, s 190. ↑
125. JA Pye (Oxford) Ltd v United Kingdom (2007) 46 EHRR 45 (Grand Chamber). ↑
126. Ministry of Housing, Communities and Local Government (n 62). ↑
127. UK Parliament, ‘Written Question: HS2 and Compulsory Purchases, Question 8025’ (5 January 2024) https://questions-statements.parliament.uk/written-questions/detail/2024-01-05/8025 accessed 26 March 2025. ↑
128. Historic England, ‘Planning Indicator Data’ (Historic England, 2024) https://historicengland.org.uk/research/heritage-counts/indicator-data/planning/ accessed 26 March 2025. ↑
129. Strikingly, these 2009 figures are the last publicly available numbers Natural England, Protecting England’s Natural Treasures: Sites of Special Scientific Interest (2011) 13. ↑
130. The A1P1 formulation is of a right ‘to’ property. In DB Symmetry Ltd and another v Swindon Borough Council [2022] UKSC 33 and MSC 2, the Supreme Court has referred to a right of property (Symmetry, [41], MSC 2 (n 5) [108]. It remains to be seen whether any difference emerges between the two formulations. ↑
131. Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, James (n 63). ↑
132. Pine Valley Developments Ltd v. Ireland (1991) 14 EHRR 319. ↑
133. James (n 63). A rare exception was Jahn v Germany (2006) 42 EHRR 49, where this result was only justified given the ‘the unique context of German reunification’ [117]. ↑
134. Chassagnou and Others v France (1999) 29 EHRR 615 and Fredin v Sweden (No. 1) (1991) 13 EHRR 784. ↑
135. Pine Valley (n 132) [56]. ↑
136. James (n 63) [46], see also Mellacher and Others v Austria (1989) 12 EHRR 391, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland (2006) 42 EHRR 1 and Beyeler v Italy (2000) 33 EHRR 52. ↑
137. Hutten-Czapska v Poland (2006) 42 EHRR 15, 165 drawing on earlier cases including James [46] (n 63) and Lithgow v UK (n 64). ↑
138. While the Strasbourg and domestic courts have found breaches of A1P1, these have related to possessions broadly construed. The only identified breach that relates to land use is Dean v Mitchell [2023] EWHC 1479 (KB), concerning the rights of occupiers of mobile homes on caravan sites. ↑
139. James v UK (n 63). Though see Hemms v United Kingdom (Application no 28799/21) (ECtHR, 14 March 2024) where the requisite ‘minimum level of severity’ for Article 8 was not reached. ↑
140. Pye v UK (n 125) Note that breaches in relation to other possessions have been found, including Associated Newspapers Ltd v United Kingdom (2024) ECHR 873. There have also been multiple breaches of Article 8, see Connors v United Kingdom (2004) 40 EHRR 189, McCann v United Kingdom (2008) 47 EHRR 913, decisions that paved the way for a more domestically benign approach in Manchester City Council v Pinnock [2010] UKSC 45. ↑
141. Trailer & Marina Leven Ltd v DEFRA [2004] EWCA Civ 1580 [57-58]. ↑
142. Ibid [57–58]. ↑
143. Ibid [63–66]. Similar reasoning is evident in relation to insurance funds (a possession) in AXA General Insurance Ltd and others v HM Advocate [2011] UKSC 46. ↑
144. Gillow v United Kingdom (1986) 11 EHRR 335. ↑
145. Stretch v United Kingdom (2004) 38 EHRR 12. ↑
146. Mott v Environment Agency [2018] UKSC 10, see also Beyeler v Italy App no 33202/96 (ECtHR, 5 January 2000) and Annington (n 73), [603, 631]. ↑
147. James (n 63), Pye (n 125). ↑
148. The Western Counties Railway Company v The Windsor and Annapolis Railway Company 7 App Cas 178, [188–191]. ↑
149. Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 at 359, Lord Warrington referred to the ‘well known principle’ that ‘a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms’. This formulation can be taken as including both deprivation of title (considered here) as well as the ability to use land as desired, inhibiting a nuisance through statutory authorization. ↑
150. Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 50, 249. ↑
151. Colls v Home and Colonial Stores Ltd. 1904 AC 179, 193. ↑
152. MSC 2 (n 5), [17]. ↑
153. Ibid [19]. See also Symmetry (n 131). ↑
154. R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, [131]. ↑
155. Inland Revenue Commissioners v McGuckian [1997] 1 WLR 991, 999 and Rittson-Thomas v Oxfordshire County Council [2021] UKSC 13 [33-34], R (Quintavalle) v Secretary of State for Health [2003] [8, 21]. ↑
156. Lord Hodge in R (on the application of O (a minor, by her litigation friend AO)) v Secretary of State for the Home Department (British Citizenship) [2022] UKSC 3 [31]. ↑
157. John Laws, ‘The Myth of Parliamentary Intention’ (Renton Lecture, 2017) https://sites.create-cdn.net/sitefiles/74/4/3/744393/The-Myth-of-Parliamentary-Intent-text.pdf accessed 26 March 2025; Andrew Burrows, Thinking about Statutes: Interpretation, Interaction, Improvement (Cambridge University Press 2018); Patrick Hodge, ‘Statutory Interpretation: A Collaboration between Democratic Legislatures and the Courts?’ (Address to the Government Legal Service for Scotland, 10 November 2021). https://supremecourt.uk/uploads/statutory_interpretation_a_collaboration_between_democratic_legislatures_29784d8175.pdf accessed 26 March 2025; Philip Sales, ‘Purpose in Law and in Interpretation’ (F.A. Mann Lecture, Herbert Smith Freehills, 19 November 2024). ↑
158. If a provision is ambiguous, obscure or leads to absurdity, then clear Ministerial statements reported in Hansard may ‘exceptionally’ be relied on, Pepper v Hart [1983] AC 593. British Citizenship (n 157) Lord Hodge [30], though note Lady Arden [65–66]; R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and others, Lord Reed [32]. In the Darwall hearing before the Supreme Court, the judges were clear that they would prefer not to hear extended references to secondary materials to assist them with statutory interpretation. ↑
159. HS2 Action Alliance Ltd v Secretary of State for Transport [2014] UKSC 3 [171]. ↑
160. Burrows (n 157). ↑
161. The Western Counties Railway Company v The Windsor and Annapolis Railway Company 7 App Cas 178, [188–189]. ↑
162. Ibid. ↑
163. See Bowen LJ in London and North Western By. Co. v. Evans [1893] 1 Ch 16. ↑
164. The analysis was more complex in relation to statutory authorization for possible nuisance, see Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171 and Managers of the Metropolitan Asylums District v Hill (No 2) (1881) 6 App Cas 193. ↑
165. Belfast (n 29) 528. ↑
166. Belfast (n 29) 524. ↑
167. Ibid. ↑
168. Westminster Bank v Minister of Housing and Local Government [1971] AC 508 ↑
169. Symmetry (n 130) [41]. ↑
170. Citing Lord Warrington of Clyffe in Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343. ↑
171. MSC 2 (n 5) [17]. ↑
172. Law of Property Act 1925, s 193 and Countryside and Rights of Way Act 2000, Schedule 2. ↑
173. Darwall (n 4) [84]; Darwall (n 3) [60]. ↑
174. Sporrong (n 131). ↑
175. Under Article 8, the right to home, Strasbourg and domestic courts have held that in specified circumstances a proportionality analysis of the decision to seek possession may be required, Pinnock (n 140) [61–64]. While an argument requiring individual proportionality assessments for decisions that affect A1P1 rights (e.g., leasehold enfranchisement decisions) might follow from the Article 8 jurisprudence, it is not yet evident (see e.g., Annington (n 73)). ↑
176. MSC 2 (n 5) [17]. ↑
177. While in Mott (n 146), Lord Carnwath held that ‘the Strasbourg cases show that the distinction between expropriation and control is neither clear-cut, nor crucial to the analysis’ [32] echoing Lord Reed in AXA (n 143) [108], the distinction is still widely applied in Strasbourg caselaw, see Council of Europe/European Court of Human Rights, Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights: Protection of Property (31 August 2020). https://www.refworld.org/jurisprudence/caselawcomp/echr/2020/en/123529 accessed 26 March 2025. ↑
178. Section 4. ↑
179. Drawing on, for instance, Sporrong (n 131), Pye (n 126), Chassagnou (n 134). ↑
180. James (n 63), Lithgow (n 64). ↑
181. Jollah v Home Office [2020] UKSC 4 [33]. ↑
182. Maria Lee, ‘The Public Interest in Private Nuisance: Collectives and Communities in Tort’ (2015) 74 CLJ 329, 349. ↑
183. André J van der Walt, Property in the Margins (Hart Publishing 2009); André J van der Walt, ‘The Modest Systemic Status of Property Rights’ (2014) 1 Journal of Law, Property, and Society 15. ↑
184. Rachael Walsh, ‘Constitutional Property and Progressive Property’s Compatibility: A Reappraisal’ (2023) 10 Texas A&M Journal of Property Law 31, 109. ↑
185. Ibid. ↑
186. HL Deb 19 May 1890, vol 344, cols 1215–1216. See also the debates on the Leasehold Enfranchisement Bill for reference to legislation as a ‘sop to the Cerberus of Socialism’ HL Deb 25 April 1887, vol 313, cols 13–14. ↑
187. John Sheail, ‘The Access to Mountains Act 1939: An Essay in Compromise’ (2010) 21 Rural History 59, 72. ↑
188. HC Deb 20 March 2000, vol 346, cols 547–548. ↑
189. The Times, ‘Letters to the Editor’ (4 June 1999) 23. ↑
190. Expert Committee on Compensation and Betterment (Uthwatt Committee), Minutes and Papers, HLG 81 (1938–1946). ↑
191. HL Deb 7 June 1932, vol 85, cols 592–602. ↑
192. HC Deb 31 March 1949, vol 463, cols 1499–1504. ↑
193. Polling Report UK, ‘Voters of All Major Parties Support Right to Roam’ (Polling Report UK, 2022) https://pollingreport.uk/articles/voters-of-all-major-parties-support-right-to-roam accessed 26 March 2025. ↑
194. George Monbiot and others, Land for the Many: Changing the Way Our Fundamental Asset is Used, Owned and Governed (The Labour Party 2019). ↑
195. Eduardo M Peñalver, ‘Land Virtues’ (2009) 94 Cornell Law Review 821. ↑
196. Peter Birks, ‘Before We Begin: Five Keys to Land Law’ in Susan Bright and John Dewar (eds), Land Law: Themes and Perspectives (OUP 1998) 457. ↑
197. Christopher Essert, ‘Property and Homelessness’ (2016) 44 Philosophy & Public Affairs 266. ↑
198. See Rachael Walsh (n 23), Rachael Walsh and Lorna Fox O’Mahony, ‘Land Law, Property Ideologies and the British–Irish Relationship’ (2018) 47 Common Law World Rev 7. ↑
199. Darwall v DNPA [2025] UKSC 20 [1] and [14]. ↑
200. Ibid [15] citing R (N3) v Secretary of State for the Home Department [2025] UKSC 6 (though only paras 61-63) and R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3 [29]. ↑
201. Ibid [23]. The SC also noted the exclusion in s193 Law Property Act 1925 (see n 172 above). ↑
202. Ibid [32], s11 DCA 1985. ↑
203. Ibid [34-35], s14 DCA 1985. ↑
204. MSC 2 (n 5) [17]. ↑
205. Darwall SC (n 199) [46]. ↑
206. Ibid [44-47]. ↑
207. R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 13 ↑
208. Darwall SC (nxx) [56]. In the absence of a government department as a defendant, it would then have been for the Attorney General to decide whether they wanted to take an active role in the proceedings. ↑