I do not know whether Portobello Park forms part of the common good of the City and Royal Burgh of Edinburgh. Portobello Park Action Group (PPAG) do not know whether the Park is common good and the City of Edinburgh Council do not know either. Nobody knows in fact and only the Courts can rule on this matter. It is one of the stranger aspects of this case that this vital question has never been resolved since the current legal impediment to building a school on the park is predicated on the assumption that the park is common good.
PPAG asserted that it was common good and when I first looked at the title deeds of the land in May 2006, it certainly appeared that there was a prima facie case that it was. The Council initially refuted the assertion but in a paper to Council in January 2008 (in which the whole question of common good was discussed), it was asserted (on page 2) that “Facts and circumstances indicate that Portobello Park is common good”
In the two Court of Session cases on the matter, both parties (PPAG and CEC) agreed that Portobello Park was inalienable common good. I do not know the basis upon which they reached that conclusion but evidence unearthed in the last week suggests that both parties were wrong to arrive at such a view without testing the matter in Court. In all my work with communities on matters of common good, I always advise them to conduct sufficient research to establish a high degree of confidence in their own minds that any land at issue is in fact common good. I do not know how confident PPAG were in their view and I am at a loss to understand why the Council took the view they did. So what is the evidence that Portobello Park is not common good?
What is Common Good?
Before outlining the argument, it is important to note the broad definition of what constitutes common good which was first articulated in an Inner House decision by Lord Wark in the case of Magistrates of Banff v. Ruthin Castle Ltd. SC36 1944 at 384 in which he observes that,
“… there was in the end no dispute between the parties that all property of a Royal Burgh or a Burgh of Barony not acquired under statutory powers or held under special trusts forms part of the common good.”
This view of what constitutes common good was most recently upheld in the Inner House of the Court of Session in the case of Wilson v. Inverclyde 2003 (for example Lord Drummond Young at ). Thus, if it can be shown that the land on which Portobello Park is located was acquired using statutory powers, then it cannot form part of the common good and Lady Paton’s decision has no relevance. What then is this evidence?
Portobello Park was acquired by the Lord Provost, Magistrates and Councillors of Edinburgh as part of the negotiated agreement to merge the burghs of Portobello and Edinburgh. The merger was given statutory force by the Edinburgh Extension Act 1896 which incorporated the agreement to create a park into section 74 of the Act.
“The Corporation shall, within seven years from the passing of this Act, acquire, dedicate, and thereafter maintain for public use a public park or recreation ground in some situation convenient for the inhabitants of the present burgh of Portobello, and under such regulations as the Corporation may from time to time make.”
On 20 July 1898, at a meeting of the Sub-Committee of the Lord Provost’s Committee, it is minuted that.
“The Sub-Committee have carefully considered the provision of a Public Park at Portobello. They have through the Town Clerk been in communication with the Agents of several proprietors of lands in the District. They have carefully considered the offers made and they are of opinion that a field extending to 56 acres or thereby on the estate of Sir James Miller of Manderston and situated to the south of the Railway Station would be a most suitable one for a Public Park. It can be acquired at the price of £25,000 and the Sub-Committee recommend that the Town Clerk should be authorised to accept the offer and to adjust the conditions of sale.”
By feu disposition of 12 November 1898, this land was acquired from Sir James Miller by the Lord Provost, Magistrates and Council of the City of Edinburgh. It contained the following condition.
“That the area or piece of ground hereby disponed shall be used exclusively as a Public Park and Recreation Ground for behoof of the Community of said City and it shall not be competent to nor in the power of my said disponees or their foresaids to erect or build or give liberty to any person or persons to erect or build houses or buildings of any kind whatsoever thereon except buildings to be used as a house or houses for the Park Officers and Gate Keepers to be employed by my said disponees or for other purposes appropriate to the uses of the area or piece of ground hereby disponed as a Public Park or Recreation Ground.”
These 56 acres were therefore acquired as a statutory obligation under the 1896 Act. But did the Council actually invoke statutory powers to buy the land? Arguably Section 74 of the 1896 Act is precisely that – a statutory power to acquire land for a park. But the Council could also credibly argue that it was using other statutory powers.
Section 58 of the Public Health (Scotland) Act 1867 provides that,
“The Local Authority may provide, maintain, lay out, and improve grounds for public recreation, and support or contribute towards any premises provided for such purposes by any person whomsoever..”
Chapter 8 of the Public Parks (Scotland) Act 1878 gave powers to Local Authorities to “provide and maintain public parks and pleasure grounds..”
And Section 233 of the the Edinburgh Municipal and Police Act 1879 provides that the Magistrates and Council may,
“…purchase, feu, lease, or otherwise acquire by agreement such lands in or adjacent to the burgh as they shall think suitable for public parks, gardens, and bleaching greens, drying greens, and grounds, and open spaces for the erection of public buildings, public wash-houses, baths, and gymnasiums, and other works of a permanent character, and such general improvements as may be conducive to the amenity of the burgh and the promotion of health, convenience, and recreation of the inhabitants, and lay out, form, and maintain such works and improvements, all proper and necessary access thereto, and support or contribute towards the support and maintenance of grounds provided for such purposes by any person whomsoever ……”
All of these Acts provide evidence that the land was bought from Sir James Miller using statutory powers conferred on the Council.
Where did the money come from?
In 1905, Thomas Hunter, the Town Clerk and Robert Paton, the City Chamberlain published a book entitled “Report on the Common Good of the City of Edinburgh”. Their remit, of 29 July 1902, was to “prepare and submit a report .. upon the Common Good of the City, its sources, of what it consists, its purposes, and the expenditure met from it during the past five years..”
The report presents the detailed Common Good accounts for the years 1894 to 1904. No common good funds were used to acquire the park. Instead, the £25,000 for the purchase of the park came out of the Capital Expenditure account of the Police Accounts of the City 1898-99. (1) Moreover, on a large, elegant map which shows the various common good properties in the City shaded different colours according to their origins, Portobello Park is marked as a park but not included as part of the common good.
What does this mean?
The above evidence of statutory powers and money coming from the Police Account suggest that Portobello Park is not, in fact, common good. Although at present nobody can know for sure, it is of such fundamental importance that it should perhaps be settled as quickly as possible.
Standing against the argument presented above is the fact that the Park was dedicated to public use as a park. Might this fact confer common good status? I know of no instance where this has been the case although dedication to a particular use is a factor in deciding whether or not common good land is alienable or inalienable. (2) It is therefore uncertain what legal weight would be given to this fact. If the park is common good then clearly the Court of Session decision stands but if it not, then the decision has no relevance.
How might this question be resolved? I am not a lawyer but I would have thought that a declarator in the Sheriff Court would be the route to take.
Who could take such an action?
Anybody who wishes to.
(1) The term “police” in this context and “police burghs” has nothing directly to do with the Constabulary but is derived from the Greek word politeia, meaning the administration or government, especially of a city (polis).
(2) See Murray v. Magistrates of Forfar 1893 20 R 908, 1 SLT 105
FURTHER – as with all blog posts of a legal character, as a non-lawyer, I am happy to be corrected on any of the facts or opinions expressed.
Interesting post. How many of our legal disputes are based on false assumptions…?
Is there one further factor? The phrase that jumps out from the disposition is the ‘for behoof of the community’. As far as my (limited) understanding goes, this means that the disponees hold the land as trustees rather than as ‘normal’ owners. If so, would this mean the park was a ‘special trust’ in terms of the definition you quote from Mags of Banff v Ruthin Castle and therefore not common good (although, clearly, this depends on what this makes a trust ‘special’ according to that case – I don’t pretend to know the answer to that)?
If the council do hold the land as trustees of a specific trust created by the disposition, then they are bound by the terms of the trust deed (here, the disposition) which clearly excludes building a school; although there are legal routes by which a trust deed can be varied.
Or, alternatively, if it is not a ‘special trust’ can the same ‘for behoof of’ phrase be interpreted as making the park part of the ‘common good’? You say that you know of no instance where dedication to public use has conferred common good status but I note from the 2008 council paper to which you link that the terms of the land title is listed as one way that new common good property could be created. Would this phrase in the disposition (as opposed to customary usage) be sufficient to trigger the common good status?
The owners are definitely not a special Trust – there is no Trust deed and are no Trustees. “For behoof of the community” can indeed be taken to imply a common good status. My observations in this post are, however, that if the land is acquired using statutory powers then it is not common good and any such dedication is merely that – a burden in the title (to which incidentally the feudal superior no longer has any right of enforcement following feudal abolition).
I think that under some circumstances, a disposition can itself be the trust deed (eg see 3.13 of the SLC Paper on trusts: http://www.scotlawcom.gov.uk/download_file/view/128/). But if the ‘behoof of the community’ phrase is a feudal burden rather than associated to the description of the disponee, then I agree it could not be interpreted this way in this case.
You are right. No mention here though. A case that will go down in history for many reasons.
Thanks for your views – very interesting as were your inrtroductory comments at the meeting on Friday night. I really thought your summary was excellent. Can I ask a proces question on your blog above – you say
“How might this question be resolved? I am not a lawyer but I would have thought that a declarator in the Sheriff Court would be the route to take.”
How does some one do this? Does it require legal assistance and would there be a cost?
I would not wish to advise at this stage. Declarators cost money but there are other legal routes which I understand are being explored.
Ok – thanks.
How do you reconcile the statement above “I do not know whether Portobello Park forms part of the common good … Nobody knows in fact …” with the statement in your earlier blog (“Portobello Park & Common Good”, 12/9/12):- “The City of Edinburgh Council should have known that this land was common good.”
The latter statement suggests that the CG status was an established fact whereas now you seem to be saying nobody knows …
I don’t reconcile them – they are in conflict. I was wrong to suggest that it was an established fact.
It’s reported on the Talk Porty forum that Councillor Maureen Child has said you’re advising the Council. Are you? Because if you are, do you think you’re really qualified to be advising the Council in light of the fact that this isn’t the first time you’ve been wrong in this saga?
Please advice me of the times that I have “been wrong in this saga”.
(1) in suggesting it was an established fact the park is CG (above); (2) when you said you were wrong when you offered the view that PPAG’s appeal was unlikely to succeed (“Portobello Park & Common Good”, 12/9/12, fourth paragraph.)
I’ve addressed (1). On (2) I am not legally qualified and I am not alone in thinking the appeal was unlikely to succeed. In hindsight I was wrong. I think admitting one’s own shortcomings is to be commended in anyone seeking to provide advice. Yes, I think i am well qualified to provide advice on a whole range of matters and continue to do so. It’s called making a living. And no, I am not advising the Council.
I have edited the statement – what I think I meant was they should have known whether it was CG or not.
What you *think* you meant?
It’s just as well my comment above stands as a record of what you thought you thought before you realised that what you think what you thought you thought isn’t what you think you think now.
For goodness sake. This is not the Spanish Inquisition. I write these blog posts in an unpaid capacity. They are not academic papers or legal submissions. I assert the right to have occasional lapses of accuracy or meaning. If you want a forensic cross-examination, head somewhere else. I have made it patently clear that no-one knows whether Portobello Park is common good and so my previous post was inaccurate. I have a family to look after, a living to earn, a dog to walk, and a life to have.
“If you want a forensic cross-examination, head somewhere else.”
That’s the bit that confuses me coming from the man who:-
*gives not one but both of the citations of Murray v Mags of Forfar (Rettie & SLT)
*quotes from s.233 of the Edinburgh Municipal and Police Act 1879, Chapter 8 of the Public Parks (Scotland) Act 1878, s.58 of the Public Health (Scotland) Act 1867 and s.74 of the Edinburgh Extension Act 1896
*quotes from cases like Mags of Banff and reminds us they’ve been upheld in recent Inner House decisions
*quotes burdens out of feu dispositions
*states that the Inner House of the Court of Session has missed out on an important fact.
So forgive me for thinking this is a forensic cross examination but if you prefer to walk your dog and live your life, then fine. I’m just relieved to hear you’re not advising the Council and that Councillor Child appears to be mistaken about this.
So I make an occasional error in a blog post and call the prospects of a legal appeal wrong (along with others) and suddenly I am not qualified to advise anyone? I am at a loss to understand why you pursue such matters so obsessively. Have you nothing more useful to do with your time?
I have reverted my 12/9/12 blog to read as it originally read and added an UPDATE at the end to clarify what my understandign was at the tiem it was written.
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