The end of April saw the presentation of a Private Bill to the Scottish Parliament to reclassify part of Portobello Park in Edinburgh as alienable common good land. This marked the latest stage in the City of Edinburgh Council's well-publicised efforts to build a new school on part of a public park, which at first sight was in the Council's ownership.
A local pressure group has successfully relied on the legal classification of the park as being held by the Council for the common good to effectively block it from appropriating the land for the development. This was done following the pressure group's failure to prevent the development through planning objections. It was also in the face of a significant degree of public support for the school being built on the park for the common good of the children who currently attend the dilapidated building which houses the existing Portobello High School.
Back to basics then - how can common good land be identified?
How easy this will be varies across the different Scottish Local Authorities and depends largely on the records which were held or compiled at the time of the Local Government reorganisation in 1973 when the new authorities acquired the common good assets of the former burghs. It also depends on whether they have researched their land holding since then - which will not always be a priority for limited resources. The differences were shown in 2005 when researchers carried out a survey of local authorities to establish what each one had as a record of its common good funds. There was wide variance across the different authorities. The Portobello case will undoubtedly lead many local authorities to review this again.
On a high level project, title deeds and historical records will be subject to scrutiny. The designation as common good land might not be apparent on the face of the title deeds - sometimes a purchase price could have been paid from money gifted to the burgh, rather than the land being gifted directly by the former landowner. To dispose of common good land existing legislation provides for a Court Order to be obtained to allow this. The Portobello case involves the Council itself appropriating the land - rather than a disposal to a third party - and so this is led to the need for a Private Bill to reclassify the land.
What then for more low level transactions involving green space which a local authority fully knows it holds for the common good?
Often these will be areas where rights are granted to third parties by way of temporary licences for music and other festivals or wayleaves for utility suppliers. This is not necessarily a disposal which would breach the legislation, but given the profile of the recent case law it is not beyond comprehension that this could be objected to by a body of members of the public. Licences and other agreements conferring rights over common good land should be granted "without prejudice to common good rights and obligations" and "only so far as the local authority can competently grant those rights in view of the fact the land as held is common good land". Basic clauses such as these can be included to make the type of land holding apparent to the third party granted the rights. This would assist if the local authority's actions were ever subject to challenge, by limiting the possibility of a further claim being available to the third party who was granted those rights.