In this Guest Blog, Bill Chisholm reveals the extraordinary story of how one former burgh in the Borders has outperformed all the rest in terms of its common good funds. That burgh is Berwick and it is now, of course, part of England.

Bill Chisholm was The Scotsman’s Borders correspondent from 1969 to 2005. He has taken a keen interest in the fate of the eight common good funds in the Borders burghs.

Scotland’s oldest and wealthiest burgh is thriving (in England)

Bill Chisholm 20 August 2013

Scotland has a very long history of community ownership of land and assets dating back to the founding of the Royal Burghs. The common good consisted originally of common land and grants of land by Royal Charter. Later in the 19th and 20th centuries additional land was acquired from neighbouring landowners and gifts of land were made by wealthy industrialists to form some of the famous parks in our towns and cities. In addition, a wide range of furnishings, paintings, regalia and other moveable property accumulated as part of the assets of the Common Good Fund.

The Common Good Act of 1491 remains on the statute book and states that the common good of all the Royal Burghs be observed and kept for the common good of the town and spent on the common and necessary things of the burgh.

Over hundreds of years, Scotland’s common good has been subject to poor management primarily due to the rampant municipal corruption and nepotism that prevailed as a consequence of town councils being responsible for electing their successors – a state of affairs that continued until the Burgh Reform Act of 1833. Genuine “local government” in Scotland was eventually abolished in Scotland in 1930 (parish councils) and 1975 (town councils) and responsibility for managing the common good passed first to District Councils in 1975 and then to the existing local authorities in 1996.

Scottish Borders Common Good Funds

Many people who take an interest in the status and performance of Scottish Borders Council Common Good Funds find it difficult to understand why an organisation with significant  land, investments and other assets consistently fails to achieve healthy annual profits. (1) This failure to secure a worthwhile financial return from the potentially lucrative commons means residents in the eight former burghs where the Common Good survives are missing out on their rightful inheritance. I thought it was perhaps a good time to take look at what has happened to these funds and as I did so, I made a remarkable discovery.

The unaudited accounts (1.3Mb pdf here) of the Council for 2012/13 reveal that the eight funds (Duns, Galashiels, Hawick, Jedburgh, Kelso, Lauder, Peebles and Selkirk) have combined net assets of £9.8 million and generated a collective deficit of £90,000. Of the eight, only Duns (£2000) and Lauder (£95,000) generated a positive return. By way of comparison, were the funds to generate a rate of return of 5%, this figure should be £490,000.

Burgh Income Expenditure Surplus/Deficit Net assets
Duns 2000 5000 -3000 30,000
Galashiels 2000 0  2000 26,000
Hawick 112,000 154,000 -42,000 3,032,000
Jedburgh 28,000 76,000 -48,000 1,371,000
Kelso 5000 35,000 -30,000 950,000
Lauder 269,000 174,000  95,000 1,031,000
Peebles 67,000 73,000 -6000 1,063,000
Selkirk 72,000 130,000 -58,000 2,336,000
TOTAL 557,000 647,000 -90,000 9,83,9000
No figures are reported by Scottish Borders Council for Coldstream, Eyemouth, Innerleithen and Melrose.
Income, Expenditure & Assets for 8 Border burghs
Source: Unaudited accounts 2012/13

It should be borne in mind that the sizeable areas of land held by the Borders Common Good Funds are, when taken together, equal in acreage to some of the larger privately owned estates in the region. Hawick has over 800 acres of farm land plus an unspecified acreage for the golf course and woodlands, Selkirk’s three farms alone cover 1300 acres while Lauder Common, one of the largest in Scotland, extends to some 1700 acres. The overall total possibly exceeds 5,000 acres.

Unfortunately, despite previous promises and pledges, there is still no sign of a public asset register clearly setting out everything that is included in the eight funds. However in February 2013 the council did, in response to a Freedom of Information request, provide details of the fixed assets (buildings and properties) and moveable assets (e.g. provost’s chains) in each of the funds. Perhaps the most striking aspect of this revelation was the fact that many of the items listed have been given no book value whatsoever, including Selkirk Town Clock, a number of common good open spaces, fishing rights on the Tweed at Peebles, and virtually all of the moveable assets.

Given the dearth of public information concerning millions of pounds worth of land holdings, investments and buildings, and the lack of detail of the charges levied on the funds by council officials, it is difficult to pinpoint what has gone wrong. But it would certainly seem elected councillors have played their part in allowing the Common Good estate to decline. It seems clear that the administration and development of Common Good assets is nowhere near the top of SBC’s list of priorities. That means the true potential of the multi-million pound operation will never be realised even at a time of austerity when every last penny is vital in sustaining local economies. Just this week, it was revealed that the £2 million cash balance was to be transferred to a “private firm of global fund managers.”

A similar regrettable pattern of Common Good neglect appears to have been developing right across Scotland ever since the abolition of town councils in 1975. A 2009 account of Common Good Funds in Scotland included some 1,600 assets in 144 separate funds with a reported value of £2.5 billion. Yet at national level too these huge assets failed to break even on the income and expenditure front. The Scottish Government’s official financial statistics for local government in 2011/12 showed gross expenditure on Common Good Funds to be £13,696,000 as against income totalling £11,540,000. That equates to an operating loss of £2,156,000.

Would these valuable assets have been better looked after had they remained in local control over the past 38 years? it is impossible to say for sure but it is fascinating to look at what has happened in one instance where that has happened.

Scotland’s first burghs four burghs – Roxburgh, Berwick, Stirling and Edinburgh – were established in 1125.

Roxburgh now lies in ruins.

Stirling and Edinburgh’s common good funds are, in the words of Thomas Johnston, “mere miserable starved caricatures of their former greatness.”

But Berwick is interesting and it is possible to compare the performance and fortunes of the region’s funds with a nearby charitable trust which administers the Common lands presented to this former Scottish burgh more than 600 years ago.

Berwick-upon-Tweed

The burgesses of Berwick-on-Tweed together with their contemporaries in Peebles, Hawick, Selkirk and the other Borders burghs received their Common lands from the Scottish king at around the same time. Today, the acreage under the control of the Berwick-upon-Tweed Freemen Trustees (Charity Commission No. 222154) is 2250 acres.

From the accounts (which can easily be downloaded from the Charity Commission’s website), we can see that the capital value of the investments at March 2011 stood at £4.896 million, and the total funds stood at £17,927,611. That’s almost double the £9.8 million valuation of the combined eight Borders Common Good funds.

Total income for 2010/11 was £437,448 (2009/10 £411,678). Rents yielded £280,853 while investments brought in £147,676. The Trustees generated a 2.4% return on capital

At the same time, the total income of the combined eight Scottish Borders funds in 2012/13 was £557,000 while expenditure totalled £647,000 – a deficit of £90,000.

As stated earlier, the common lands at Berwick-upon-Tweed were transferred to the burgesses and freemen of the then Scottish Royal Burgh at around the same time as the lands which now form part of the eight Borders common good funds.

The 3,280 acres of Common conveyed by a special Berwick Royal Charter of 1604 following the Union of the Crowns was vested with the freemen of the now English borough in perpetuity, although the acreage had gone down to 2,250 by the early years of the 20th century, thanks in part to the involvement of the town council which took control of the lands in 1843. The 1604 Charter had “granted to the burgesses the fee simple of certain lands over which the inhabitants had for centuries previously exercised rights of Common, grazing and other rights”.

But the introduction of statutory local government did nothing for the fortunes of the Berwick estate. The first elected town council melted down all of Berwick’s historic collection of silver, including the town mace…a sign of things to come.

During the 19th century the council often failed to pay the income from the estate to the freemen; financial accounts were not made available for public inspection; the town council attempted to alter some of the farm leases, and even leased farmland without advertising the leases.

By 1909 income was reduced and by now the local authority was spending all of the money it collected from the estate on council matters. The history of the estate also records that in 1916 the council wanted to lease the town’s ancient market rights to themselves at a rent of £5 per annum although the annual profit to the estate was £150. Such was the scale of council mismanagement that the estate fell into debt and by the 1950s the financial position was so dire one of the farms had to be sold for £9,000.

The local authority and the freemen were engaged in numerous legal disputes in the 20 years up to 1994 as the Borough Council attempted to plunder estate assets and proposed radical increases in annual administration fees from £5,000 to £18,000. Since 1994 the freemen Trustees and the Borough Council and Town Council have worked well together and as a result the estate has flourished. (2)

The retiring and new Town Mayor of Berwick-upon-Tweed. Note the “Scottish”purple ceremonial robes dating back to granting of Royal Charter by David I in contrast to English red robes.
© 
All rights reserved by Berwick-upon-Tweed Town Council

Map of Town Council of Berwick-upon-Tweed which includes the 2250 acres of land owned by the Freemen Trustees.

Concluding thoughts

What is fascinating about the above is the fact that one of Scotland’s oldest burghs survives today with a self-governing town council, £17 million of assets and an annual income of £437,000. At the same time, eight neighbouring burghs have half the assets and lost money last year.

The difference between this successful and relatively prosperous burgh (or borough) and the burghs of the Scottish Borders is that Berwick-upon-Tweed is in England. That simple fact raises all sorts of interesting questions about how local democracy and the commons have survived on both sides of the border.

So, perhaps as the Scottish Government holds one of its summer cabinets in Hawick, it might reflect on 900 years of Scottish history and ponder how to rebuild democracy in Scotland’s communities.

(1) All 8 Scottish Borders Common Good Funds are administered collectively as a charity No. SC031538

(2) Following the abolition of the Borough Council in 2009, a new Town Council was established.


The City of Edinburgh Council has advertised its intention to introduce a Private Bill to enable it to build a new Portobello High School on part of Portobello Park. This follows a meeting of the Council on 14th March which agreed to this course of action as outlined in the Council paper for the meeting. See earlier posts for background to this controversial project (select “Portobello” from blog categories on right).

On 12 September 2012, in a case brought by Portobello Park Action Group (PPAG) against the Council, the Court of Session ruled that the Council did not have the legal power to appropriate (to use for another purpose) any of Portobello Park for the construction of a school. The reason was that the park was deemed to be inalienable common good land. I remain skeptical as to whether in fact the land is indeed common good of any kind (see this post in particular) since no court has ever ruled on the matter, it being simply an uncontested assertion by both PPAG and the Council. But this point is academic now.

It is proposed that the private bill the legislation should “reclassify Portobello Park as alienable common good land for the purposes of Part VI of the Local Government (Scotland) Act 1973, but only in so far as permitting the appropriation of the Park for the purposes of the Council’s education authority functions.

This is an interesting approach since the normal way of removing any common good restrictions from land is simply to declare that the land in question is no longer common good. This is what has happened in the case of the markets and slaughterhouses which were declared to no longer form part of the common good in Section 145 of the Edinburgh Corporation Confirmation Act 1967. (1.7Mb pdf). Similarly, the National Galleries of Scotland Act 2003 simply removed the statutory restrictions on building on the common good land of East Princes Street Gardens.

Were a similar approach to be adopted in the case of Portobello Park, a private bill would simply remove the site for the new school entirely from the common good (whilst perhaps at the same time confirming or dedicating the remainder of the park as inalienable common good). Perhaps the Council has decided that by affirming the whole park as alienable common good and seeking specific permission to appropriate a part solely for education, the bill will be better received by MSPs for whom removal of the site from the common good might be seen as a step too far. In this respect it is worth noting that the 1967 Act received little if any scrutiny from the citizens of Edinburgh, it being debated and passed in a faraway Parliament in London.

The private bill is to be introduced to Parliament on or around 22 April 2013.

Rather surprisingly, there is very little scholarship on land relations in Scotland. There are a few academic papers  on some topics (such as the legals scholarship of Malcolm Combe) but much less than I certainly think there should be. So it is welcome to note the arrival of a new book (further information here) by Fiona MacKenzie from Carleton University in Ottowa. Fiona has a deep interest in ideas of place and identity in a globalising world and has conducted research in Scotland over many years. Her new book is a masterly account of what community means in the context of land relations in the Outer Hebrides. It is available to order directly from the publisher at a 20% discount (further details of the book and order form here).

Another book to look forward to is from another scholar from outwith Scotland, Andrea Loux Jarman from  Bournemouth University. Her book Custom, Community and Common Land provides an in depth historical study of community land rights in Scotland’s towns from 1707 to the present day. it is due to be published by Dundee University Press in early 2014.

The City of Edinburgh Council is consulting the citizens of Edinburgh about whether it should promote a Private Bill in the Scottish Parliament to build a new Portobello High School on Portobello Park. As previous posts have discussed, the Court of Session has ruled that it is illegal to construct the school on the park because it is (allegedly) inalienable common good land (see previous posts here and here).

The residents of Portobello are thus engaged in two energetic campaigns.

The “yes” campaign – New Porty High – has published a very smart website and produced the rather engaging video (further details here).

The “no” campaign is run by Portobello Park Action Group. It has not produced a video (yet) but is no less energetic.

The consultation runs until 31 January 2013 and is open to all residents of Edinburgh. Somehow I doubt there will be much of a break for Christmas or Hogmanay.

08. December 2012 · Comments Off on Is Portobello park common good (2)? · Categories: Common Good, Democracy, Edinburgh, Legal affairs, Portobello

By way of introduction to this blog, I should stress that I have no interest one way or the other in whether Portobello Park is common good. I am, however, interested in the law relating to common good and this case is interesting. Previous blogs contain background to the story (including 22 Sep 2012 which examines whether the park is common good).

On 5 December2012, Edinburgh Council published the legal advice it obtained in November 2012 as to whether Portobello Park forms part of the common good of Edinburgh or not.

The question as to whether the park forms part of the common good was not put at issue in the Court of Session cases. Both Portobello Park Action Group and the Council both agreed that it is common good. The fact remains, however, that only a court can answer this question and to date none has. The illegality of building a school on the park rests upon the presumption that the land is common good.

I am not legally qualified but I have been in and around common good issues for the best part of a decade. I am going out on a limb here in querying the opinions of a prominent Edinburgh law firm and a QC. I do so, however, in the full knowledge that I may be proved wrong. Anyone who thinks I am wrong is welcome to says so by commenting on this post.

BACKGROUND

Portobello Park was acquired in order to fulfil the statutory obligations contained in Section 74 of the Edinburgh Extension Act 1896 which stated that,

”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.” (see image above)

Following Lady Paton’s ruling in the Court of Session on 12 September 2012 that the Council could not build a school on the park because it was “inalienable common good land”, the Council has since been exploring ways of overcoming an outcome that they view as “extremely disappointing and entitrely unexpected”. At the Council meeting on 25 October 2012, Councillors agreed to explore afresh the question of whether the park was common good. Brodies were asked for their view and they, in turn sought advice from Gerry Moynihan QC. The advice was reported to the Council on 22 November 2012 and published on 6 December 2012.

The legal opinions both conclude that the park forms part of the inalienable common good of Edinburgh. In so far as both opinions derive from a mis-reading of two leading common good cases, I argue that they are flawed in coming to this view.

BRODIES OPINION (link here)

Brodies argue that the Magistrates of Banff vs Ruthin Castle SC36 1944 case provides the litmus test of whether land is common good or not. This is correct. Moreover, the test has most recently been upheld in Wilson v Inverclyde 2003 SC 366.

Lord Wark in the Ruthin Castle case observed 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” (my emphasis)

Brodies reference and articulate this view (para 4.2) that assets are not common good if they are held in a trust or if

(ii) they were acquired or dedicated by the Burgh for specific statutory purposes or specific statutory powers …...” (my emphasis)

But Lord Wark said nothing about “dedication for statutory purposes” in the Ruthin Castle case.

Brodies then go on to review the documentation surrounding the acquisition of the park before turning to their analysis of the matter. At paragraph 6.1.1 they argue that,

the initial assumption is that the Property is assumed to be Common Good unless (i) it is held in a specific trust; or (ii) it has been acquired or dedicated for specific statutory purposes or powers.” (my emphasis)

Again, however, Lord Wark says nothing of the sort.

Brodies proceed to argue in 6.1.3 that the wording of the 1896 Act “dedicate and thereafter maintain for public use a public park … would, on the face of it, appear to be a clear obligation .. to dedicate the property to common good use.” They further argue that “we are of the opinion that Section 74 could be seen as a statutory provision requiring the purchase of land specifically for the common good” although “we are not aware of any court authority that either supports of contradicts this view.”

They conclude in para. 6.2 that “the property became common good when it was purchased..We cannot, however, be certain of this – the law relating to common good is, unfortunately, sparse and largely historic in nature.”

Brodies thus proceed from an erroneous interpretation of Ruthin Castle (which never said anything about dedicating land to common good) to conclude that Section 74 represents an obligation to dedicate the land as common good and thus its acquisition is a statutory provision requiring the purchase of the land for the common good.

Section 74 obliges the Council to dedicate the land for use as a park but does not oblige them to dedicate it as common good. The term common good is never once mentioned in any of the paperwork surrounding the transaction. Indeed the Ruthin Castle test makes clear that statutory acquisitons are by definition not common good. I know of no case where any statutory power has been used to acquire land for the common good (though there are statutes that remove land from the common good).

The Brodies Opinion starts out from an erroneous interpretation of Lord Wark’s words and concludes with the novel idea of the statutory acquisition of land for the common good – an oxymoron as far as the Ruthin Castle case is concerned.

GERRY MOYNIHAN QC (link here)

Gerry Moynihan QC also proceeds from an erroneous interpretation of a leading judgement. In a series of ten short paras (4-13) that contain little by way of detailed argument, he asserts that “Dedication to public use is the paradigm indicator of common good land: Lord Maclean in Murray vs Mags of Forfar (1893) 20R 908 at 918-919.” (para. 8)

He then concludes (para. 13) that “the default positon applies here: the park is part of the common good of the council” and concludes that the common good is inalienable.

There are three problems with his argument. The first is that he does not even cite the Ruthin Castle case. The second is that he appears to think that the statutory powers test relates to how land is held and owned by a Council on an ongong basis (see para. 7 for example). It does not. It relates to how land was acquired (a point which he actually acknowledges in para. 7 where he notes that the land was acquired “under the Edinburgh Extension Act 1896, Section 74″).

It is the third problem, however, that is fatal to his argument.

Lord Maclean in the Magistrates of Forfar case did not say that dedication to public use is a paradigm indicator of common good land. Murray vs Magistrates of Forfar (in which dedication to public use was indeed a critical issue) was not a case that sought to define common good land. It was a case concerning whether land which was indisputably common good was alienable or inalienable. In other words it was a case about the classification of common good and not about whether land was or was not common good in the first instance.

Brodies and Moynihan also discuss (having concluded that the park is common good) whether it is inalienable common good as opposed to alienable common good.

CONCLUSION

Both Brodies and Moynihan appear to misunderstand the two leading cases of Ruthin Castle and Magistrates of Forfar and proceed on this basis to conclude that the park is common good (and then further that it is inalienable). I concede that if the park is indeed common good then the arguments that both make about inalienability are probably correct. But I reject the reasoning adopted to classify the park as common good in the first place since it proceeds on a false premise.

The park was acquired using a very specific statutory power to acquire land for a park.  Admittedly this opens up the very interesting question posed by Andrew Ferguson in his book Common Good Law (Avizandum, 2006) in which he points out the difficulty in common good definition in cases where statutory and common good purposes appear to coincide.

More extreme difficulties of proof will arise, of course, in relation to the types of statutory purpose which could also be said to be common good purposes, such as the provision of public recreation spaces, and there the burden of proof might be said to shift towards showing that the property had not simply fallen into that public use rather than having been specifically acquired under statutory purposes using rates income for that purpose.” (page 83)

If Ferguson’s line of reasoning were to be followed, I suspect a court would rule that Portobello Park is not common good.

To conclude, these two opinions may well be correct. I don’t know since only a court can resolve this question and it has never yet been faced with this particular set of circumstances. What I do assert, however, is that in reaching the views they have, both opinions rely on a misreading of existing cases. If read correctly, the Ruthin Castle case suggests that Portobello Park is not common good since it was acquired using a very specific statutory power. The fact that Section 74 mandated the council to then “dedicate” the park to be used as a park would make the park inalienable common good only if the land was already common good.

As a coda, I am intrigued by the claim in Brodies opinion that such is the strength of Gerry Moynihan’s opinion (that the land is inalienable common good), that “he has confirmed he would decline to act for the council should it seek to assert that the Property is not Common Good or that it is not inalienable Common Good.” (para. 6.5)

It is an important principle that an Advocate “should not, when available to accept instructions, refuse to accept instructions to act for any litigant” (Fifth Edition of the Guide to the Professional Conduct of Advocates, Section 8.3). I am unclear what exceptions contained in Section 8.3 to this general principle could apply that would support such a refusal.

Kinross Town Hall & Public Library lying derelict and abandoned.

Responses to a consultation on what the Scottish Government’s Community Empowerment and Renewal Bill should contain closed in September and will be published soon.

This is my response in which I open by placing concerns over community empowerment firmly in the context of Scotland’s failed democracy and the relentless centralisation of political power (see Campaign for REAL Local government). Without addressing such key governance issues, community empowerment risks becoming the same kind of sop that the creation of community councils were in 1975 when Scotland’s local government was eliminated, leaving us as the least democratic country in most of Europe as the table below illustrates.

Country No. municipalities Median population Sq. km.
France 36781 380 11
Germany 12013 6844 15
Spain 8112 564 35
Italy 8100 2343 22
Belgium 589 11265 40
Norway 431 4439 465
Sweden 290 15039 672
Scotland 32 115000 990

The saga of the Town Hall continues with the refusal of planning consent on Wednesday (it is interesting to note that Kinross-shire is now so insignificant politically that the Courier files the online story in the ../News/Fife.. directory.

UPDATE 3 SEPTEMBER 2013

Responses to the Community Empowerment and Renewal Bill are now published and can be found from a link on the Scottish Government’s website here. Today, Alex Salmond is expected to announce that the Bill will form part of the Scottish Government’s legislative programme for the coming year.

The Town Centres Review was published in July 2013.

On Thursday this week, Stirling Councillors meet to decide the fate of the King’s Park (item 19 on agenda). This is the first time the new Council has the opportunity to consider the plans developed by the last council. For a critique of these see this post and for background documents see here.

Since then, the historic importance of the site has been affirmed by a group of leading historians including the Historiographer Royal, Professor Chris Smout. The UK government has also responded to the recommendations of the Scottish Affairs Committee report (see quoted extracts here) and ruled out the transfer on the flimsiest of grounds. In its report of 10 July 2012, it claims at para 7.6 that,

The King’s Park, Stirling cannot, however, be among these. After lengthy negotiations, the Crown Estate recently agreed a market price for its sale to Stirling Council, so transfer at nil cost would be incompatible with the Crown Estate’s statutory responsibilities.

What this argument in fact reveals is that in fact it is only because Stirling Council agreed in the past to raid the Common Good Fund and buy the King’s Park that the UK Government and the CEC can even make this argument.
The straightforward answer for Stirling Council is to take the deal off the table on Thursday. Then proper negotiations can take place with a view to transferring the site to Scottish Ministers – discussions which, as this letter reveal, are already underway.
UPDATE 1019hrs 12 October 2012 – I understand that the Council has voted to defer any decision.

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 [4]). 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

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.

NOTES

(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.

Pictured: Holy Cross High School, Hamilton, South Lanarkshire.

The fallout from the Court of Session decision on Portobello Park rumbles on (see previous posts). The ruling that Edinburgh Council cannot “appropriate” (i.e. use for another purpose) inalienable common good land exposes common good law as flawed in its practical consequences. Consider the following three situations.

ONE
Lady Paton ruled that the City of Edinburgh Council has no statutory power under the Local Government (Scotland) Act to appropriate inalienable common good land. Such a course of action is simply not provided for under the Act and thus she struck down the Council’s decision of 26 April 2012 to appropriate part of the park as ultra vires (beyond its powers).

TWO
There are, however, statutory provisions covering the disposal of inalienable common good land by a local authority. Thus if Edinburgh Council wanted to sell part of Portobello Park, they could seek the Court’s permission. This may not be granted of course but the avenue is nevertheless open to make the request for disposal … but not for appropriation.

THREE
The Portobello decision took many by surprise because in two previous cases in South Lanarkshire and North Lanarkshire, the local authorities proposed to build new schools via a Public-Private Partnership (PPP). They petitioned the Court of Session for consent to dispose of the land under s.75 of the 1973 Local Government (Scotland) Act but in both cases the applications was dismissed as unnecessary because the proposals did not amount to a disposal – merely appropriation. There was no provision in the 1973 Act regarding appropriation and therefore the Court had no locus. As a consequence they never ruled on whether appropriation was lawful. A written judgement is available only for the North Lanarkshire case.

I don’t know about North Lanarkshire but the South Lanarkshire school – Holy Cross High School in Hamilton was then built (pictured above). Interestingly the Special Planning Committee report of 22 August 2005 notes at (5.1) an objection that the land was common good. The report states that “An application to the Court of Session to have the restriction removed from the application was successful.” (I do not think this is true – the only case is the one noted above and it ruled simply that the Court had no locus). Had this objector opposed the Council’s appropriation of inalienable common good land in the Courts, he or she would have won and the Court would have ruled that the decision of the Planning Committee was ultra vires and struck it down – just as Lady Paton did in Portobello. But no-one sought a judicial review of the decision.

And because of that absence of challenge, the school was built.

So is the school illegal?

All of which is to say by way of conclusion that if inalienable common good land is meant to be afforded maximum legal protection, the law has a funny way of going about doing so when three scenarios can throw up three different outcomes.

NOTE – 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.

UPDATE – minor edit 2308hrs