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

I was quoted in the Evening news yesterday as arguing that if the people of Portobello decide that Portobello Park is the best site for a new school, then the Court of Session ruling could be countered by a “Private Act of Parliament”. Some confusion has arisen as to what I meant because of a difference between the terminology used by Westminster and Holyrood.

The UK has its own terminology. Private and Personal (the term used after 1948) relate to legislation covering private affairs. A list of the Acts passed between 1539 and 2006 is listed here. Local Acts are legislation promoted by an organisation in order provide specific powers to, for example, build roads, railways canals, harbours etc. A full list since 1797 can be found here. The Scottish Parliament calls all Private, Personal and Local Acts “Private Acts”. Further details can be found here.

Over the years, a number of Local Acts have been passed dealing with the affairs of Edinburgh. Many of these are relevant to the debate over the Waverley Market with clauses dealing in great detail with the use and function of land in the city. Other clauses deal with the display of registration certificates for hairdressers, ear-piercers and electrolysists (Section 18 of City of Edinburgh DIstrict Council Conformation Act 1991). Section 22 of that Act deals with buildings in certain parks in Edinburgh.

This is the kind of legislation that could be used to permit the construction of a school in Portobello Park. For interest, I have included links to some extracts of these Local Acts (which relate to Waverley Market).

Edinburgh Corporation Order Confirmation Act 1933 includes s.278 permitting the Council to make alterations to the Waverley Market including very precise measurements (not be at a greater distance than 880 yards – s278(2))

Edinburgh Corporation Order Confirmation Act 1967 which includes the provision in s.145 that “The markets and slaughterhouses shall cease to form part of the common good.” This is an example of legislation over-riding centuries of case law on the definition of common good.

City of Edinburgh District Council Confirmation Act 1991 referred to above.

National Galleries of Scotland Act 2003 which repealed the restriction contained in s.22 of the 1991 Act (referred to above) relating to Princes Street Gardens.

The town where I grew up. Kinross Town Hall forms part of the common good of the people of Kinross and yet lies derelict and abandoned due to the incompetence of Perth & Kinross Council.

I have received a number of emails from people in Portobello who have queried my commitment to the cause of the common good of Scotland’s burghs. They complain that I have “switched sides” and that they “deeply regret my involvement in the issue”. These are people with whom I have developed a mutual respect over the years. I am sorry if they feel that I have somehow betrayed the cause of Common Good. In this post I want to explain exactly what I do think. Feelings are running high on both sides of the debate over a site for a new Portobello High School and the future is uncertain for everyone. But I remain as dedicated to restoring Scotland’s common lands to their rightful place in Scotland’s communities as ever and continue to work with many people to this end.

In a typical case in Scotland, folk are trying to reclaim control over common good land that is now the responsibility of a Council that takes in many former burghs. So, for example, Kinross, Dumfries, Forfar, Leven etc. are are now all subsumed into much larger local authority areas. In all of the cases I have been involved in, a small number of people are fighting an at times heroic battle to seek redress for past wrongdoings. One such is the late John Wilson of Greenock interviewed here who sadly passed away in 2011. His struggle is immortalised in Wilson vs Inverclyde 2003 and I wrote a short blog following his death.

These cases all involve attempts to identify and secure the proper administration of common good land against an often hostile and obstructive local authority. History is full of legal cases where citizens have gone to court to challenge Councils that have exceeded their powers (e.g. Murray v. Magistrates of Forfar 1893) or to protect their common good from a successor local authority to the Town Council (e.g. Cockenzie & Port Seton Community Council v. East Lothian District Council 1997).

My basic position is that I believe that the people of Kinross, Maybole, Langholm and such places should be the ones who are in charge of their common good and take decisions about how it is administered. Thus when I was originally asked for advice in relation to Portobello Park I willingly gave it to those who asked. Since 2006 PPAG have asked for advice on occasions and I have done my best to provide what assistance I could.

Until April 20102 (when I signed the petition asking PPAG to drop their appeal) I never took a view on whether there should or should not be a school built on the site. I have always been of the view that this is a matter for the people of Portobello. I still hold that view. At the moment there are those opposed to building  a school in the park, those in favour, and a lot of people who have never expressed an opinion.

Common good law evolved over centuries to protect the interest of citizens against often corrupt, nepotistic and undemocratic Town Councils. Such protection is still needed today 30 years after Scotland’s 196 burghs lost their local government because for 192 of these 196 burghs, decisions are not in their hands but in the hands of a much larger Council elected and accountable to people in other burghs in Fife or Angus for example. But where a community clearly wishes to do something with it’s common good and the Council agrees, the law should be there to facilitate this not to prevent it. Equally the law should be there to stop the Council over-riding the rights of the citizens. The law in this case is doing neither.

It follows that IF …… IF the people of Portobello wish to build a school in the park, they should be able to do so. If they don’t wish to do so, then that’s fine too. There is no point, however, in common good law which prevents a community doing what it expressly wishes to do.

At the moment, we don’t know what the people of Portobello think. Those opposed to the school in the park have spent a lot of time and money on a successful legal challenge. But, equally there are others more determined than ever to press ahead. There remain a number of options for doing so.

And that is why I believe that the residents of Portobello should be given the chance to express their view on the available options in a referendum.

Neil King (a retired lawyer) has drafted a bill – the Local Government Amendment (Common Good) (Scotland) Bill – to amend the Local Government (Scotland) Act 1973 to remedy what he considers to be a deficiency in the drafting of the Act that meant that the Inner House of the Court of Session had no option but to uphold the appeal by Portobello Park Action Group. He suggests,

“that the omission of the words “or appropriate” from section 75(2) of the Local Government (Scotland) Act 1973 is a pure drafting error and is it credible that Parliament meant to provide a mechanism for the outright *disposal* of inalienable common good but not for the lesser step of retaining it for an alternative use?”

He has written to Keiza Dugdale MSP as follows,

“Dear Ms Dugdale

I gather there is talk of a private act of parliament to authorise the construction of a new school on Portobello Park in the wake of the Council being blocked by the Court of Session decision.

I personally feel that private acts are effectively saying “change the law for me” whereas the law should only be changed for the benefit of everyone.

Also, it could set a dangerous precedent in that, each time someone comes up against a legal obstacle, they might be tempted to say “Oh well, no problem, we’ll just get a private act of parliament!”

I think there is a preferable solution which avoids these criticisms and is just as simple. It is a public act to amend the general law relating to all common good (not just Portobello Park) to remove the obstacle highlighted by the Court of Session in its recent judgement. In this way no other communities could find themselves thwarted in the way Portobello has and find themselves having to promote private acts.

As I’m sure you know, the nub of the court’s decision was that, the Council having conceded that Portobello Park is inalienable common good, section 75 of the Local Government (Scotland) Act 1973 gives the Council power to dispose of the park if it obtains the consent of the court (which may impose conditions) but not to “appropriate it” – i.e. retain it but change its use (with court consent).

That is indeed what the section says but it must have been a drafting oversight because it seems inconceivable that Parliament intended to provide a mechanism for the disposal of inalienable common good but not for the less extreme step of retaining it but changing its use.

And as someone observed, what could be a more fitting use of common good than its retention by the Council for the building on it of a school for the benefit of the local community?

Hence what I think is required is a very short (public) act to amend section 75 to add in references to appropriation (retention and change of use) alongside the references to disposal. I have drafted a bill and attach it for your use in case you wish to promote it as a private member’s bill. If it would help, I’d be happy to draft an explanatory note and policy memorandum to accompany this bill.

Regards

Neil King
CC. Kenny MacAskill”

This information is derived from posts by Neil King at 1500 today on the Talk Porty Forum.

The proposed Portobello High School

The fallout from the Portobello Park decision (see previous post) has got me thinking. For a long time I, along with others, have been working to secure better protection for common good land and property in Scotland. This has mostly involved working with communities in small towns in Scotland to defend their interests against remote and distant decision making in a faraway place where the Council HQ is based. This work brought me into contact with those in Portobello who have been campaigning against building a school in Portobello Park. I first met them at a public meeting in Cupar in April 2006 and agreed to provide advice and assistance as I do to all who are concerned with common good matters. I consciously do not take sides in local disputes but the Portobello Park is different.

Virtually all the cases I have been involved in concern a local community that wishes to decide for itself  how common good land should be managed and used. This is hardly revolutionary since this is the land that they once held title to and manage before the Town Councils were abolished in May 1975. Portobello, however, is the first instance where the community and the Council all appear to be agreed that a school should be built on the park and the ones seeking to defend the common good land are in the minority. Their tenacity in this case has provided a very useful clarification of common good law but at a huge price to community cohesion and the future of children and their education in Portobello. In short, I find myself welcoming the legal decision because it clarifies the law but at the same time lamenting the outcome because I believe that this is a good site for a new school.

The wider lessons I think are twofold.

Firstly, the law on common good is complex and in some cases perverse. As Neil King comments in the last post, is it credible that “Parliament meant to provide a mechanism for the outright *disposal* of inalienable common good but not for the lesser step of retaining it for an alternative use“? No land should be frozen for ever by events of decisions taken centuries ago. Of course, it is important to have arrangements whereby the Council cannot, for example, contemplate building a new headquarters on the Meadows in Edinburgh. Common good law needs to be brought up to date and provide greater clarity about what it is trying to achieve. Above all, where a community expresses a clear desire to do something different with common good land through a referendum or resolution of the Council, then the community should have the legal powers to pursue their desired ends. Of course, in this case it should really be the community of Portobello who make the decision and it was their incorporation into Edinburgh in 1896 started this whole saga since the park was acquired for £25,00 as part of that agreement.

Secondly, and following on from the above, we need to restore local government and local democracy in Scotland. This will form part of a proposed new bill I hope to develop to secure a future for common good. It really is better that decisions about common land in Kirkcaldy are taken by the people of Kirkcaldy through open, transparent and participative democratic processes. If this were to happen, it might not matter so much whether land is common good or not. Deciding where a new school should be sited should not be that difficult a decision. Unfortunately that has not been the case in Portobello due to the unfortunate juxtaposition of a legal framework that is not fit for purpose, a Council that ignored all the signs of trouble brewing and the determination of a small number of people to protect their greenspace/property values (delete as appropriate).

Meanwhile there are solutions available. A private Act of Parliament seems the best option and was the means by which the National Galleries of Scotland obtained a small part of Princes Street Gardens to build a new cafe. This would take a year or two to achieve. Alternatively there are legal appeals available to the Supreme Court possibly on the grounds raised by Neil King.

Meanwhile none of this helps to heal the divisions in Portobello or to give the young people of the town the kind of excellent school facilities that they all deserve.

UPDATE OR (and here’s a thought), the Council could go to the Sheriff Court to seek authority to dispose of the land to a third party (say the Portobello Education Foundation). Remember, the law states that it cannot USE the land for another purpose while it remains in its ownership but it can (if approved by the Courts) sell the land. If this is successful the Council then takes out a 175 year lease of the land and builds the school.

Lady Paton handed down a dramatic decision of the Inner House of the Court of Session today and ruled that Edinburgh Council does not have the legal authority to build a new school on Portobello Park. This has been a long-running saga and has, tragically, caused very deep divisions in Portobello which I will come to in a moment. Briefly the story is as follows.

Edinburgh Council is keen to replace the ageing and decrepit Portobello High School and build a new school fit for the 21st century. After examining a variety of sites, it chose Portobello Park as the preferred site. This led to a the Portobello Park Action Group (PPAG) being formed to campaign against the building of the school in the park. They complained of the loss of greenspace and also brought into the debate the fact that Portobello Park is common good land (a fact initially disputed by the Council). Common Good land is subject to a range of restrictions on how it can be disposed of and used. The Council sought it’s own legal opinion on whether it had the authority to go ahead and satisfied itself that it did. Planning consent and contractual matters where then agreed. In July 2011, PPAG sought a judicial review of the Council’s decision to build the school and on 7 March 2012, Lady Dorrian rejected the pleas of PPAG and gave the green light for the Council to build the school. Her grounds were that the PPAG were too late in bringing their case and that, in any event, the law on common good gave the Council a wide discretion to appropriate common good land. PPAG appealed and today Lady Paton upheld the appeal and concluded that PPAG were not too late and that the Council have no authority to build a school on common good land.

I offer a few brief observations.

I was wrong when I offered the view that this appeal was unlikely to succeed. My view at the time was informed by the narrow point in law and the lack of much legal precedent for situations where a local authority was “appropriating” as opposed to selling common good land. Lady Paton’s ruling makes it very clear that there are significant hurdles to overcome before inalienable common good land can be appropriated for another use.

The law on common good is vague and always open to the interpretation of the Courts. Several attempts since 2004 to persuade the Scottish Government to review the law have fallen on deaf ears. The law does need placed on a new statutory footing. Common Good features as a modest part of the consultation on the Community Empowerment and Renewal Bill but what we need now is a new statute. I and others are working on such a statute and hope to have the draft outlines of a Bill ready by the end of 2012.

Citizens of Scotland’s burghs should have the right to take legal action in defence of their common good. However, the appeal by PPAG was, in part I believe, driven by the self-interest of property owners in the vicinity of the park.

The City of Edinburgh Council should have known that this land was common good. That they did not is a reflection of a long history of neglect in the stewardship of the Common Good Fund. At an early stage the Council should have sought legal authority for their proposals. This is common practice. Their failure to do so contributed to today’s outcome.

The community of Portobello has been left deeply divided. This is tragic when the matter at hand is the building of a much needed news school.But the reasons for this division is not the need for a new school but the inadequate legal framework governing common good and the arrogant behaviour of the Council.

Local government needs reformed. Indeed, we do not have local government – merely a poor form of regional government. Decisions about common good in, say Pittenweem or Perth should not be taken by Councillors representing the whole of Fife or the whole of Perth and Kinross. Edinburgh, admittedly is a bit different in that its government is solely concerned with the City (though South Queensferry’s Fund is distinct and historically Portobello and Leith have been absorbed).

Lady Paton’s ruling misses out an important fact. The 1898 disposition that transferred the park to Royal Burgh of Edinburgh was a feu disposition. The burdens narrated at [2] are therefore feudal burdens. Section 17 of the Abolition of Feudal Tenure etc. (Scotland) Act abolished all feudal burdens unless any Superior took action to preserve them. No such action was taken in this instance and thus the restrictions are, in my view, irrelevant. Yet, they have been brought into play by Lady Paton. Was she right to do so given that they have been extinguished? Does this have a bearing on the ruling? (1)

Finally, let us not forget in this whole sorry tale the young people of Portobello who deserve a new school. It is tragic that this now seems as distant a prospect as it did at the beginning of this saga.

(1) 1417hrs Robert Sutherland, advocate rightly points out that the abolition of feudal tenure has no bearing on the status of land as a common good. This is correct. He goes on to point out that feudal burdens are not always lost if not preserved. I will encourage him to elaborate further by way of comment on this post.

UPDATE 15 September The Legal Opinion obtained by City of Edinburgh Council dated 19 November 2008 which was ordered to be released by the Information Commissioner in Decision 079/2009

UPDATE 1 October At the time tis blog was written, I accepted as fact that Portobello Park was common good since it was agreed between PPAG and CEC that it was. Subsequent evidence has cast doubt on this matter.

Proposals for the development of Craighouse Campus in Edinburgh were reported in the Scotsman today. The developers. Craighouse Partnership is proposing to build 116 houses on the site. A local campaign, Friends of Craighouse, has been opposing the proposals. I do not have a view on the proposals but was curious as to who owned the site.

It turns out that it is owned by Craighouse Ltd., a company incorporated in the Isle of Man (No. 006516V) and with its registered office at Fort Anne, Douglas, IM1 5PD, Isle of Man. The title is available here and a plan here. In a letter written by the developers, Sundial Properties to the Friends of Craighouse, they assert that this company is 100% owned by Mountgrange Real Estate Opportunity Fund. The Fund in turn is 90% owned by overseas investors.

This development adds to a growing list of property in Edinburgh owned by companies registered in offshore tax havens. I do not think it is acceptable that owners of land in Scotland should be allowed to record titles to land in the name of companies registered in tax havens. The Land Registration etc. (Scotland) Bill is currently going through Parliament and is the ideal opportunity to crack down on tax avoidance. I outlined the arguments in this post and have submitted evidence to the Scottish Parliament Committee.

Fergus Ewing, the Minister in charge of the Bill has indicated he is not interested in making any such provisions in the Bill. The Economy, Energy and Tourism Committee has, however, recommended in its Stage 1 report (paras 214 – 219) that the Scottish Government should consider options for cracking down on the scope for tax avoidance.

 

I will be in Parliament tomorrow (Tuesday 18 January) giving evidence to the Justice Committee on the Long Leases (Scotland) Bill. I will be seeking to exempt common good land from the provisions of the bill which allows for all land held on a lease of over 175 years and with over 100 years left to run to be converted automatically to full ownership.

The case which inspires my interest in this is that of the Waverley Market, referred to in a previous post. I remain of the view that this land forms part of the Common Good of the City of Edinburgh but, in their evidence (available here at LL5), the Council continue to refute this. What is interesting about the Council’s evidence is that it contines to avoid specifying the precise legal grounds, either statutory or derived from case law, upon which its position rests. Attempts are underway to find out what these grounds are but until they become clear, I have good authority for my assertion that the site is common good.

The Council’s argument (which is laid out plainly in their evidence) is that because it was a fruit and vegetable market, hence it was common good. Accordingly, in 1938, when it ceased to be a market, it ceased to be common good.

My argument is that the market has nothing to do with this. The site became part of the common good as a consequence of being acquired by the Common Good Fund as part of the land assembly for the New Town in the late 19th century. Furthermore, markets were speficially removed from the common good by Section 145 of the Edinburgh Corporation Act 1967 (by which time Waverley Market was no longer a market). This highlights my argument that common good status can only be removed by statute, by court order, or by selling the property outright to a third party.

Incidentally, what really happened in the 1930s was that the Edinburgh Corporation Act of 1933 provided that all market rights (which were held by citizens and gave them legal rights to take their produce to market) would be abolished if and when the market was closed. It was then closed and moved in 1938 which is the point at which the Council claims that the common good status disappeared. In fact, all that happened was that it ceased to be a market and was still common good (and is referred to as common good in a later Act of 1950).

Despite the specific disagreement over the Waverley Market, I welcome the fact that the City of Edinburgh Council support the exemption of common good land from the provisions of the Long Leases Bill. They also argue for an exemption for where the grassum (an initial payment on a long lease) divided by the term of the lease is over £100. This matches the existing exemption for all commercial leases with an annual rent of over £100. This suggests that such a situation applies to the Waverley Market but I do not know since I have not seen the lease for a long time.

I have today submitted written evidence to the Scottish Parliament’s Justice Committee on the Long Leases (Scotland) Bill. It focusses on the impact the Bill will have on common good land.

Those following this matter may also be interested in this extract from the papers presented at the 11 January 2001 Justice Committee meeting which contains a dismal letter from Fergus Ewing, Minister for Community Safety and a good analysis of the links between the Bill and common good prepared by Scottish Parliament Information Centre.

Earlier post on this topic here.