Please send me SCA's fortnightly briefing:

March 12, 2008

Common Good is supposed to safeguard civic spaces

Ancient laws, intended to restrict the use and disposal of `Common Good` land across Scotland, are being largely ignored by Local Authorities, who claim they are obsolete. Solicitor Jackie McGuire argues that the Scottish Parliament needs to debate this issue urgently


Like it or not, Common Good is back on the agenda for local authorities in Scotland. Ancient laws surrounding common good are under increasing scrutiny as pubtic interest in the treatment by councils of common good assets continues to grow. Little wonder, as urban regeneration, infrastructure and transport projects increasingly dominate council agendas. Scottish local authorities are under renewed pressure to account for the common good.

There is an urgent demand from some local authorities for expert advice in this area of law. At the heart of it are claims that failures on the part of some councils ‘to -account properly for the common good may be putting some of the country’s most prized civic assets at risk. Common Good laws apply to land which is cared for by local authorities and includes parks, civic buildings and monuments.

Rightly or wrongly, objectors to major redevelopment projects in Scotland’s 1owns and cities are now citing potential misuse of common good assets amongst other concerns such as planning and environmental issues. Witness the position of the Canongate Community Forum on the proposed land sale by Edinburgh City Council in connection with proposals for the redevelopment of Caltongate.

The Local Authority (Scotland) Accounts Advisory Committee has issued new guidance designed to establish consistency in the financial reporting arrangements for Common Good funds and the requirement for Common Good asset registers. Whilst commendable, the principal focus of the guidance is on accounting practice but, on its own, improved accounting practice will not fully address wider concerns about the state of knowledge on the current extent of Common Good land.

Critics may level claims at local authorities as being-less than fully informed as to what exactly constitutes Common Good – particularly with reference to heritable assets -let alone how to account for it. Whether or not this criticism can be justified, there has to be a question mark over the capacity of already stretched council services to address the wider range of concerns associated with the concept of Common Good.

Putting together a Common Good asset register involves more than an audit of land and buildings -it also involves an audit of title, something which councils may not be in a position to afford much in the way of priority. Knowing that there is a problem doesn’t necessarily mean that the resources can be made available to put it right. It’s hardly surprising that councils may deal with such issues on the basis of real need arising.

However, given the potential restrictions on the use and disposal of Common Good assets, local authorities being unaware of the Common Good status of their land and buildings should be a cause for concern, particularly where assets are being sold off to fund new ventures including the building of schools leisure centers. The authority (or rather the lack of it) of councils to dispose of Common Good assets should raise alarm bells not just internally or within their local communities but also with those who seek to purchase or lease property from them. Expert advice on such matters may be advisable as may be advice on the treatment of capital receipts generated from such transactions.
The bigger question is, of course whether the constraints on the use and disposal of assets held for the Common Good remain relevant to modern local government. Should councils promoting the economic development or regeneration of their areas be constrained in the disposal of common good and/or the use of funds generated from these disposals within a more limited geographical area? How do such restrictions sit with the statutory duties of community planning and best value, and with the local authority power to advance wellbeing?

Ultimately these are matters of public policy that need to be addressed by the Scottish Parliament. But this is unlikely to happen within a timesca1e that ensures certainty in the short term for local councils looking to make what they consider best use of assets that may or may not have Common Good status in what they consider to be in the best interests of the wider community, There are differing views on the shape that reform might take but there appeals to be little or no doubt that reform is required.

There is debate to be had in a modem democracy, Should these ancient legal restraints be clarified; regulated and effectively policed uniformly throughout Scotland, creating certainty for those involved in the business of urban regeneration, community projects, infrastructure projects and other economic activities necessarily involving local authority assets? Perhaps the concept might in future be confined to particular types of registrable trophy assets such as public parkland, monuments and significant municipal buildings, so as to act as an effective legal restraint upon the disposal of the civic family silver for the benefit of futon generations. Or should the concept itself be abolished, as with the feuda1
system itself?

Whichever route may be chosen there is an urgent need for local authorities throughout Scotland to get to grips with this issue. Many are doing so and our firm is actively involved in advising a number of local authorities on their legal obligations. It is to be hoped that the Scottish Parliament will, prioritize reform in this area in the interests of good governance, transparency and the requirements of modem democracy.