On Tuesday this week, the Court of Session published its opinion by Lord Tyre on a petition brought by East Renfrewshire Council (4.2Mb pdf) seeking authority to build a school on common good land in Cowan Park, Barrhead. Given past blogs on the topic of common good and, in particular, the controversy over the Portobello Park proposals, I felt it would be useful to provide a brief response and commentary on this latest decision by the Courts.
East Renfrewshire Council plans to build a new high school in Cowan Park, Barrhead. The park consists of three distinct parcels of land (see map below). The first – areas 13/4 and the northernmost E157/3 form the original Cowan Park. James Cowan bequeathed £10,000 in 1910 to provide a park and directed his trustees to purchase the land and convey it to the Town Council to be held in “perpetuity as a public park … for the use and enjoyment of the inhabitants of the Burgh of Barrhead in all time coming.” In 1969 part of this original park (the northernmost area E157/3) was conveyed to the County Council and is the site of the current Barrhead High School.
An additional two parcels of land were added to the park in acquisitions by the County Council in 1969 (E157/3 to the south outlined in blue) and the Town Council in 1969 (area 13/8 outlined in yellow).
Of these parcels, only area 13/4 is common good land. Furthermore, given the terms of the bequest, it is inalienable common good land. This means that, unlike alienable common good land (which the council can dispose of as its sees fit), any disposal of such land requires the consent of the courts. (1) It was with this intention that East Renfrewshire Council petitioned the Court of Session in April 2014.
At this point it is worth revisiting the Portobello decision very briefly. In that case, the City of Edinburgh Councils wished to appropriate (that is, to use common good land for another purpose but to retain ownership) land in Portobello Park to build a new school. An action was taken against the Council by Portobello Park Action Group and the Court of Session found (on appeal to the Inner House) that the Council had no powers to appropriate inalienable common good land. This was because the Local Government (Scotland) Act 1973 which governs such matters is silent on the question of appropriation in these circumstances and thus the common law prohibition on appropriation of inalienable common good land prevails. The City of Edinburgh Council resolved the matter by seeking specific authority under a private act of Parliament to appropriate the necessary land.
The Cowan Park case turned on the question of whether the proposals for building a school constituted a disposal or an alienation. If such an arrangement is regarded as a disposal, the Court has the power to decide whether to grant authority to proceed. However, if the arrangement is considered an appropriation, the Court has no locus since there is no provision in the 1973 Act for it to take a view.
The plan is to lease the land to a special purpose vehicle which, in turn will sub-lease the site back to the Council and construct the school. The Court in this case found that, since the Council would retain possession of the land as the sub-leaseholder, there was no disposal involved and that “the petitioner’s proposals are properly to be characterised as appropriation.” (2) Thus, “as there would be no disposal, the petition must be refused as unnecessary“.
So where does that leave East Renfrewshire Council?
Well, the Court cannot provide the consent that was requested and thus there are three options available.
The first would be to seek the same remedy as the City of Edinburgh Council in the Portobello case and petition the Scottish Parliament for a private Act of Parliament.
The second would be to build the school on the southern half of the park which is not common good land (though I understand other factors mean that this is not a suitable site).
The third would be to do what South Lanarkshire Council did and go ahead and build the school anyway. As outlined in a previous blog, the Council in this case, having petitioned the court and having been advised that the court had no locus (just as in the present case), nevertheless went ahead and built Holy Cross High School. No-one raised an action against the council. Had anyone done so, then, the court would most likely have found that the Council was acting beyond its powers. This is exactly what happened in the Portobello case because, whilst the courts have no locus to approve such an action at the outset, they do have the power to rule it unlawful should it be contemplated AND someone takes an action against the Council.
In conclusion, this latest case demonstrates why, in my view common good law is in need of modernisation. The Community Empowerment Bill proposes some modest reform on transparency but fails to address the underlying complexity and the need for the law to be updated to reflect modern needs.
(1) – In my opinion Lord Tyre is wrong at  where he claims that “As a general rule, a local authority has no power to dispose of common good land or to appropriate it for other uses“. On the country, if the land is alienable it is free to dispose of it or appropriate it. See Ferguson, Common Good Law (Avizandum) at foot of page 88.
(2) Lord Tyre at 
Talk about history repeating itself!
Assuming building the school on a different site isn’t an option, I suspect that, of the remaining two options, the “just go ahead and do it anyway” one is most unlikely because the funders’ lawyers just won’t allow them to part with a penny piece in a situation where they can’t get a marketable security and an interdict by a member of the public could stop the project in its tracks at any moment.
That just leaves the private act of parliament route and that’s why I argued at the time of the Portobello debacle for a *public* act of parliament giving the courts power to authorise an appropriation of inalienable common good so that Councils aren’t forced into all the delay, hassle and expense of obtaining private acts (which are ethically dubious anyway).
There’s another parallel with Portobello as well which is that Cowan Park has never been judicially declared to be common good (CG). The Council have just assumed that it is. I have my doubts about that. To my mind (easy to be wise with hindsight, of course), the Council should have spent its legal budget on a court declarator as to whether the park was CG or not – if it wasn’t, they could build the school and, if it is, they’d be exactly where they are today anyway.
I am in full agreement with Andy that there needs to be a change to CG law. First, to identify what is or isn’t CG once and for all. This could take the form of each Council having to produce a draft inventory of CG assets which was put out for consultation to resolve any issues (including adding in anything the Council had missed). Resolution by Lands Tribunal for any disputed cases. Then, once the inventory is final, all CG land to be registered as such in the Land Register. Thereafter, if it aint registered in the LR as CG, then it aint CG. End of.
Then (although this could happen in parallel with the above or even before it), the Local Gov Act 1973 is amended to allow the courts to authorise appropriation of inalienable CG as well as disposal.
The Cowan Park is a part of Barrhead and a part of our heritage. East Renfrewshire Council decided they would replace the existing school within the park without any proper Public Consultation. I became very concerned at the end of December 2012 when i read an article in our local paper regarding the site of the Replacement School. Telephoning E.R.C. to view plans and gain information regarding exactly where the proposed site was did not amount to anything. They were very evasive from day one. Which led to many local people wondering WHY !! Although, we really could not understand HOW a school could be built on gifted land ERC insisted they were owners of that said land. As the months went on i learned more regarding the COMMON GOOD LAND status and that we were not alone regarding councils proposing to build schools in parks i.e. Portobello. I have remained in contact with the PORTOBELLO ACTION GROUP and vica versa. It was beneficial to me throughout our own campaign that i could pick up the phone and speak to someone when the pressure was bad and believe me several times that was exactly the case. But, why did E.R.C. not realise the Status of the land in question ? Lessons have to be learned here . Especially, for other councils, to have proper consultation with the general public before they try to build on land that they do not own. I hope the Scottish Government take note of this case and insist that all councils should. by law. declare common good land on a general register.
The Council do own the land but if it is common good land that affects what they can do with it.
OK folks. We were in a similar position in Dumbarton where the council wanted to build a school on our only park. I think they were in collaboration with your council in order to save money by getting a discount from BAM construction. We took them on and beat them. People power!! You have to do it, be tenacious, argue with them til you are blue in the face. Do not let up on your councillors and remind them that they are elected to serve YOUR interest and don’t be beaten down by people who will say that you are anti childrens education, that you are a tree hugging freak 😀 We ran a campaign via Facebook, Save Posties Park, and have 1600 members, we had the biggest public meeting Scotland has ever seen when 400+ piled into our local theatre in protest. We’ve kept the FB page as a reminder to our councillors that we might have voted them in, but if they EVER dare to look after their own interests instead of ours, then we will boot them straight back out again. And they bloody well know it. there will be plenty of waste ground to build on. The Portobello protest was doomed from the start because there were too many wanting the school on it. No matter what law/bill is passed in Edinburgh, ignore it. Seriously get right intae your councillors, hound them and make them back down. Make sure you have some viable alternative space to argue your point about where the school should go. Good luck.
“The Portobello protest was doomed from the start because there were too many wanting the school on it.”
Which bit of that don’t you agree with Gail?