This is a brief blog to note the fact that Glasgow City Council has advertised for lease 2.7 hectares of former playing fields in Victoria Park, Glasgow (top left in picture above and Rydens brochure here). The closing date for offers is 12 noon on 26 September 2014.

From the evidence I have seen, this park, which was acquired by the Town Council of Partick in 1887, appears to be inalienable common good land. A lease for a period of around 10 years or more would constitute a “disposal” for the purposes of Section 75(2) of the Local Government (Scotland) Act 1973 and thus require the approval of the Courts before it could be executed.

The Friends of Victoria Park group has raised this matter with Glasgow City Council on 8 September 2014 and awaits a response.

The law relating to common good is in serious need of modernisation. If this land in Victoria Park is indeed inalienable common good land then the City Council will be acting unlawfully if it attempts to lease it out on a lengthy lease.

The above is the audio-video commissioned from myself by Emma Rushton and Derek Tyman as part of their Flaghall installation in the Where Do I End and You Begin exhibition in the City Arts Centre, Edinburgh 1 August-19 October 2014 as part of the Edinburgh Arts Festival. (Click on ‘Vimeo’ and watch full screen for best effect).The exhibition features work by artists from across the Commonwealth exploring and interrogating the ideas, ideals and myths that underpin notions of community, common-wealth and the commons. This audio-video lecture explores these themes in the context of Scotland and the British Empire and invites the viewer to consider how we can reverse centuries of colonialism and ideas of exclusive possession and move toward a world in which our common-wealth is reconstituted and governed for the wellbeing of all.

There are three events on this Saturday 30 August discussing the UK work in the exhibition including a talk by myself at 2pm. Below is the extract from the exhibition catalogue.

CONQUEST, COLONIALISM & THE COMMONS

The Commonweal is an old Scots term meaning “wealth shared in common for the wellbeing of all”

In 1884 the Earl of Rosebery visits Australia and asks, “Does the fact of your being a nation… imply separation from the Empire? God forbid! There is no need for any new nation, however great, leaving the Empire, because the Empire is a Commonwealth of Nations“.

On the 22nd of August 1770, at Possession Island off the north coast of Australia, Captain Cook writes in his journal, “I now once more hoisted English colours and in the Name of His Majesty King George the Third, took possession of the whole Eastern Coast  .. together with all the bays, harbours, rivers and islands.”

In 1949, the people of Alyth in Perthshire, Scotland march to the top of the Hill of Alyth to destroy the fences that have been built to enclose their common land.

In 1955, the UK government decides to annex Rockall – a small rock in the North Atlantic around 187 miles west of St Kilda. Captain Connell of HMS Vidal is given the following order by the Queen. “On arrival at Rockall you will effect a landing and hoist the Union flag on whatever spot appears most suitable or practicable and you will then take possession of the island on our behalf.”

In May 1982, Eddie Mabo, on behalf of the Meriam people from the Mer Island in the Torres Strait off the north coast of Australia launches a legal action challenging the claim of the Crown to ownership of his land.

On the 3 June 1992, by a majority of six to one, the High Court upholds the claim of the Meriam people and overturns the legal fiction that the land of Australia was ‘terra nullius’ before colonisation.

On Tuesday this week, the Court of Session published its opinion by Lord Tyre on a petition brought by East Renfrewshire Council (4.2Mb pdf) seeking authority to build a school on common good land in Cowan Park, Barrhead. Given past blogs on the topic of common good and, in particular, the controversy over the Portobello Park proposals, I felt it would be useful to provide a brief response and commentary on this latest decision by the Courts.

East Renfrewshire Council plans to build a new high school in Cowan Park, Barrhead. The park consists of three distinct parcels of land (see map below). The first – areas 13/4 and the northernmost E157/3 form the original Cowan Park. James Cowan bequeathed £10,000 in 1910 to provide a park and directed his trustees to purchase the land and convey it to the Town Council to be held in “perpetuity as a public park … for the use and enjoyment of the inhabitants of the Burgh of Barrhead in all time coming.” In 1969 part of this original park (the northernmost area E157/3) was conveyed to the County Council and is the site of the current Barrhead High School.

An additional two parcels of land were added to the park in acquisitions by the County Council in 1969 (E157/3 to the south outlined in blue) and the Town Council in 1969 (area 13/8 outlined in yellow).

Of these parcels, only area 13/4 is common good land. Furthermore, given the terms of the bequest, it is inalienable common good land. This means that, unlike alienable common good land (which the council can dispose of as its sees fit), any disposal of such land requires the consent of the courts. (1) It was with this intention that East Renfrewshire Council petitioned the Court of Session in April 2014.

At this point it is worth revisiting the Portobello decision very briefly. In that case, the City of Edinburgh Councils wished to appropriate (that is, to use common good land for another purpose but to retain ownership) land in Portobello Park to build a new school. An action was taken against the Council by Portobello Park Action Group and the Court of Session found (on appeal to the Inner House) that the Council had no powers to appropriate inalienable common good land. This was because the Local Government (Scotland) Act 1973 which governs such matters is silent on the question of appropriation in these circumstances and thus the common law prohibition on appropriation of inalienable common good land prevails. The City of Edinburgh Council resolved the matter by seeking specific authority under a private act of Parliament to appropriate the necessary land.

The Cowan Park case turned on the question of whether the proposals for building a school constituted a disposal or an alienation. If such an arrangement is regarded as a disposal, the Court has the power to decide whether to grant authority to proceed. However, if the arrangement is considered an appropriation, the Court has no locus since there is no provision in the 1973 Act for it to take a view.

The plan is to lease the land to a special purpose vehicle which, in turn will sub-lease the site back to the Council and construct the school. The Court in this case found that, since the Council would retain possession of the land as the sub-leaseholder, there was no disposal involved and that “the petitioner’s proposals are properly to be characterised as appropriation.” (2) Thus, “as there would be no disposal, the petition must be refused as unnecessary“.

So where does that leave East Renfrewshire Council?

Well, the Court cannot provide the consent that was requested and thus there are three options available.

The first would be to seek the same remedy as the City of Edinburgh Council in the Portobello case and petition the Scottish Parliament for a private Act of Parliament.

The second would be to build the school on the southern half of the park which is not common good land (though I understand other factors mean that this is not a suitable site).

The third would be to do what South Lanarkshire Council did and go ahead and build the school anyway. As outlined in a previous blog, the Council in this case, having petitioned the court and having been advised that the court had no locus (just as in the present case), nevertheless went ahead and built Holy Cross High School. No-one raised an action against the council. Had anyone done so, then, the court would most likely have found that the Council was acting beyond its powers. This is exactly what happened in the Portobello case because, whilst the courts have no locus to approve such an action at the outset, they do have the power to rule it unlawful should it be contemplated AND someone takes an action against the Council.

In conclusion, this latest case demonstrates why, in my view common good law is in need of modernisation. The Community Empowerment Bill proposes some modest reform on transparency but fails to address the underlying complexity and the need for the law to be updated to reflect modern needs.

NOTES

(1) – In my opinion Lord Tyre is wrong at [5] where he claims that “As a general rule, a local authority has no power to dispose of common good land or to appropriate it for other uses“. On the country, if the land is alienable it is free to dispose of it or appropriate it. See Ferguson, Common Good Law (Avizandum) at foot of page 88.

(2) Lord Tyre at [16]