Local authorities in Scotland have powers to take certain land that they hold for the benefit of a local community, known as “common good land”, and use it for a purpose other than the purpose for which it is being held.

A recent Court of Session appeal, Portobello Park Action Group Association v The City of Edinburgh Council [2012] CSIH 69, has clarified the scope of these powers in circumstances where a proposal by the City of Edinburgh Council to build a new high school on Portobello Park in Edinburgh was challenged by a local action group.

PPAGA contended that Portobello Park was common good land, and that the Council had no power to appropriate it for the purpose of building a new school.  The Council accepted that the park was common good land, but argued that it did have the power to appropriate it.

What is common good land?

Broadly speaking, common good land is land that was held by burghs, except land that was acquired under statutory powers or held under certain trusts, and which is now held and administered by local authorities.  The land is held by local authorities subject to certain controls.  For example, in administering common good land, local authorities must have regard to the interests of the inhabitants of the area to which it formerly relates.  There are also statutory controls over the ability of local authorities to appropriate or dispose of common good land.

Appropriation and disposal of common good land

The Local Government (Scotland) Act 1973 gives local authorities power to appropriate for the purpose any of their functions, land that they currently hold for the purpose of any of their other functions.  They also have power under the Act to dispose of land held by them in any manner that they wish.  The Act provides that these powers to appropriate or dispose of land apply to common good land, where no question arises as to the right of the authority to alienate the land.  Where a local authority wishes to dispose of common good land and such a question does arise, the authority may apply to the Court of Session or the Sheriff Court to authorise it to dispose of the land, subject to such conditions as the court thinks fit.  The precise meaning of these provisions was considered in the action by PPAGA.

The scope of the power to appropriate common good land

Portobello Park had been conveyed to the Council’s predecessors in 1898 subject to the condition that it “shall be used exclusively as a public park and recreation ground for behoof of the community”.  In the action by PPAGA, the Council accepted that the park was common good land, and that it had no right to alienate the land.  The central question was whether the Council had the power, under the 1973 Act, to appropriate the land from one of its functions to another.  The circumstances of this case, in which the Council wished to appropriate common good land that it had no right to alienate, was not covered by the provisions of the Act relating to common good land.  The Council argued that this meant that their general power to appropriate land under the Act was unrestricted by those provisions.

The appeal court (disagreeing with the views expressed by the judge at first instance on this issue) decided that the Council did not have the power to appropriate the land under the 1973 Act.  It was held that the effect of the provisions of the Act relating to common good land (section 75) was to limit a local authority’s general powers of appropriation and disposal in the case of such land, so that:

  1. where there is no question that the authority has the right to alienate the land, it may appropriate or dispose of the land; and 
  1. where there is a question as to whether the authority has the right to alienate the land, it may dispose of the land, but only with the authority of the court and subject to such conditions as the court thinks fit.  

Accordingly, a local authority only has the power to appropriate common good land under the 1973 Act if it undoubtedly has the right to alienate the land, and there is no mechanism for the court to authorise appropriation under the Act.  Since the Council did not have the right to alienate the land, it had no power to appropriate it under the Act, and could not apply to the court to authorise appropriation.

The immediate impact of the court’s decision is that, unless the Council appeals to the Supreme Court, it will have to reconsider how to provide a new and improved high school for Portobello, for which it has determined there is a need.  It appears that many residents of Portobello strongly wished the park to remain as such for the benefit of the community.  However, it is also apparent that many residents supported the Council’s plans for the new school, which would also be of benefit to the community, and they will be disappointed that those plans have been set back.  The impact of the decision may well be wider, however, in that other local authorities may also have taken the view that they had wider powers of appropriation of common good land, and their plans may also be affected.

To read the appeal court’s decision, click here.

To read the court’s decision at first instance (which was reversed by the appeal court), click here.