The above photograph was taken earlier today (Saturday 10 August 2013) in Inverleith Park, Edinburgh. It shows members of the public queuing up to pay money to enter a part of the park that has been fenced off for a “Foodies Festival”.

They are being held to ransom.

Three years ago, a similar event, Taste of Edinburgh, set up in Inverleith Park and once again held the public to ransom with no legal authority to charge people to cross that part of the park. I attempted to do so and was threatened with arrest for breach of the peace even although the same police officer had earlier re-asured me that, were I to enter the festival area, it would be a straightforward civil matter. I later wrote up the story in a piece for the Guardian.

The issue centres around the interpretation of the public access provisions in Part 1 of the Land Reform (Scotland) Act 2003. This Act provides members of the public with a legal right of responsible access to land in Scotland. There are some areas of land that are exempt from this legal right but public parks are not one of them.

Thus the first thing to establish is that I and others have the legal right to walk across public parks subject to any local bye-laws (which may provide for example, that parks can be shut at night-time). These legal rights therefore apply to Inverleith park and to the land occupied by commercial festivals that charge an entrance fee.

If anyone wishes to exclude the public from an area for more than six days (which was the case in 2010 and is the case with Foodies which is a 3-day festival with 2 days before and after for setting up and clearing the site during which time the public is excluded), then they can apply for a Section 11 Order under the Land Reform Act which will entitle the occupier to exclude the public. This is commonly used for car rallies and such activities. Having excluded the public from access, the organisers of such events are able to charge an entrance fee. It goes without saying of course that any commercial operator needs also to obtain the agreement of the landowner – in this case the City of Edinburgh Council.

My issue in 2010 was that no Section 11 Order had been sought and thus I was perfectly within my rights to enter the festival area and the organisers have no legal authority to charge me money for doing so. Park rules that were drawn up for Dundee and Glasgow made it explicit that commercial events that charged an entrance fee required a Section 11 Order or they would be in contravention of the Land Reform Act.

Back in 2006, the Local Access Forum in Edinburgh noted that existing park rules at the time conflicted with access legislation on ten points and yet, by 2010, nothing had been done to update them. The Council, in response to my complaint in 2010, asserted that it had the authority under the Local Government and Planning (Scotland) Act 1982 to set aside any area of land for an appropriate purpose and any such land would be covered by Section 6(d) of the Land Reform Act which states that access rights are not exercisable over and land “to which public access is by, or under any enactment other than this Act, prohibited, excluded or restricted“. It went on to claim that nothing in the 2003 Act gave me the right to act in the manner I proposed (entering Taste of Edinburgh) and “which may constitute a criminal offence“. This latter claim was, I believe made to intimidate me as such matters have nothing to do with the criminal law as the Police informed me at the time.

The following year, in 2011, I inquired again of the Council whether the Taste of Edinburgh festival (which had by now moved to the Meadows) was subject to a Section 11 order. This is what the Council told me.

In our opinion the event: 

 – does not significantly affect access rights within the Meadows;

- has the broad support of the community & the Council;

- does not warrant the additional bureaucracy/costs required by a section 11 application.

Section 11 guidance states that ‘if you are organising a corporate, community, or social event such as an agricultural show, car boot sale, wedding reception, music festival or a car rally, you can ask people to avoid using a particular route or area for the duration of the event.  Informal arrangements will be sufficient to ensure that any interference from the exercise of access rights is kept to a minimum.’

Given this guidance and the advice from the National Forum, which has reaffirmed that a section 11 notice is not needed in most cases, we feel that a common sense approach should be taken in this and future events in parks and other city spaces.  In this case the common sense view is not to require an event taking up a relatively small part of a public park andfully supported by the Council to apply for section 11 exemption.

Now of course a Section 11 Order is not mandatory. The Act merely states that it “may” be applied for. However, if it is not, then my argument is that access rights apply and no-one has any lawful authority to hold the public to ransom. In the context of this weekend’s event therefore, we are back at the position argued in 2010, that the 1982 Act constitutes an enactment for the purposes of Section 6(d) of the Land Reform Act. I contend that it does not. It merely gives authority to the Council to set aside land for an appropriate purpose. The one further development since 2010 is the adoption of new park rules which, unlike Dundee and Glasgow, say nothing about Section 11 orders.

To conclude, the Council has the authority to set aside part of the park for commercial events. it does not, however, have the authority to allow commercial operators to charge the public a fee for entering that part of the park unless there is a Section 11 Order in place. This is an argument accepted by other local authorities. North Ayrshire Council, for example, takes the view that a Section 11 Order is necessary where “there is a requirement to enforce the exclusion of land from access rights”

And that is why the public are, this weekend, being held to ransom in inverleith Park.

Anyone fancy a walk in the park tomorrow?

The City of Edinburgh Council is consulting the citizens of Edinburgh about whether it should promote a Private Bill in the Scottish Parliament to build a new Portobello High School on Portobello Park. As previous posts have discussed, the Court of Session has ruled that it is illegal to construct the school on the park because it is (allegedly) inalienable common good land (see previous posts here and here).

The residents of Portobello are thus engaged in two energetic campaigns.

The “yes” campaign – New Porty High – has published a very smart website and produced the rather engaging video (further details here).

The “no” campaign is run by Portobello Park Action Group. It has not produced a video (yet) but is no less energetic.

The consultation runs until 31 January 2013 and is open to all residents of Edinburgh. Somehow I doubt there will be much of a break for Christmas or Hogmanay.

By way of introduction to this blog, I should stress that I have no interest one way or the other in whether Portobello Park is common good. I am, however, interested in the law relating to common good and this case is interesting. Previous blogs contain background to the story (including 22 Sep 2012 which examines whether the park is common good).

On 5 December2012, Edinburgh Council published the legal advice it obtained in November 2012 as to whether Portobello Park forms part of the common good of Edinburgh or not.

The question as to whether the park forms part of the common good was not put at issue in the Court of Session cases. Both Portobello Park Action Group and the Council both agreed that it is common good. The fact remains, however, that only a court can answer this question and to date none has. The illegality of building a school on the park rests upon the presumption that the land is common good.

I am not legally qualified but I have been in and around common good issues for the best part of a decade. I am going out on a limb here in querying the opinions of a prominent Edinburgh law firm and a QC. I do so, however, in the full knowledge that I may be proved wrong. Anyone who thinks I am wrong is welcome to says so by commenting on this post.

BACKGROUND

Portobello Park was acquired in order to fulfil the statutory obligations contained in Section 74 of the Edinburgh Extension Act 1896 which stated that,

”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.” (see image above)

Following Lady Paton’s ruling in the Court of Session on 12 September 2012 that the Council could not build a school on the park because it was “inalienable common good land”, the Council has since been exploring ways of overcoming an outcome that they view as “extremely disappointing and entitrely unexpected”. At the Council meeting on 25 October 2012, Councillors agreed to explore afresh the question of whether the park was common good. Brodies were asked for their view and they, in turn sought advice from Gerry Moynihan QC. The advice was reported to the Council on 22 November 2012 and published on 6 December 2012.

The legal opinions both conclude that the park forms part of the inalienable common good of Edinburgh. In so far as both opinions derive from a mis-reading of two leading common good cases, I argue that they are flawed in coming to this view.

BRODIES OPINION (link here)

Brodies argue that the Magistrates of Banff vs Ruthin Castle SC36 1944 case provides the litmus test of whether land is common good or not. This is correct. Moreover, the test has most recently been upheld in Wilson v Inverclyde 2003 SC 366.

Lord Wark in the Ruthin Castle case observed 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” (my emphasis)

Brodies reference and articulate this view (para 4.2) that assets are not common good if they are held in a trust or if

(ii) they were acquired or dedicated by the Burgh for specific statutory purposes or specific statutory powers …...” (my emphasis)

But Lord Wark said nothing about “dedication for statutory purposes” in the Ruthin Castle case.

Brodies then go on to review the documentation surrounding the acquisition of the park before turning to their analysis of the matter. At paragraph 6.1.1 they argue that,

the initial assumption is that the Property is assumed to be Common Good unless (i) it is held in a specific trust; or (ii) it has been acquired or dedicated for specific statutory purposes or powers.” (my emphasis)

Again, however, Lord Wark says nothing of the sort.

Brodies proceed to argue in 6.1.3 that the wording of the 1896 Act “dedicate and thereafter maintain for public use a public park … would, on the face of it, appear to be a clear obligation .. to dedicate the property to common good use.” They further argue that “we are of the opinion that Section 74 could be seen as a statutory provision requiring the purchase of land specifically for the common good” although “we are not aware of any court authority that either supports of contradicts this view.”

They conclude in para. 6.2 that “the property became common good when it was purchased..We cannot, however, be certain of this – the law relating to common good is, unfortunately, sparse and largely historic in nature.”

Brodies thus proceed from an erroneous interpretation of Ruthin Castle (which never said anything about dedicating land to common good) to conclude that Section 74 represents an obligation to dedicate the land as common good and thus its acquisition is a statutory provision requiring the purchase of the land for the common good.

Section 74 obliges the Council to dedicate the land for use as a park but does not oblige them to dedicate it as common good. The term common good is never once mentioned in any of the paperwork surrounding the transaction. Indeed the Ruthin Castle test makes clear that statutory acquisitons are by definition not common good. I know of no case where any statutory power has been used to acquire land for the common good (though there are statutes that remove land from the common good).

The Brodies Opinion starts out from an erroneous interpretation of Lord Wark’s words and concludes with the novel idea of the statutory acquisition of land for the common good – an oxymoron as far as the Ruthin Castle case is concerned.

GERRY MOYNIHAN QC (link here)

Gerry Moynihan QC also proceeds from an erroneous interpretation of a leading judgement. In a series of ten short paras (4-13) that contain little by way of detailed argument, he asserts that “Dedication to public use is the paradigm indicator of common good land: Lord Maclean in Murray vs Mags of Forfar (1893) 20R 908 at 918-919.” (para. 8)

He then concludes (para. 13) that “the default positon applies here: the park is part of the common good of the council” and concludes that the common good is inalienable.

There are three problems with his argument. The first is that he does not even cite the Ruthin Castle case. The second is that he appears to think that the statutory powers test relates to how land is held and owned by a Council on an ongong basis (see para. 7 for example). It does not. It relates to how land was acquired (a point which he actually acknowledges in para. 7 where he notes that the land was acquired “under the Edinburgh Extension Act 1896, Section 74″).

It is the third problem, however, that is fatal to his argument.

Lord Maclean in the Magistrates of Forfar case did not say that dedication to public use is a paradigm indicator of common good land. Murray vs Magistrates of Forfar (in which dedication to public use was indeed a critical issue) was not a case that sought to define common good land. It was a case concerning whether land which was indisputably common good was alienable or inalienable. In other words it was a case about the classification of common good and not about whether land was or was not common good in the first instance.

Brodies and Moynihan also discuss (having concluded that the park is common good) whether it is inalienable common good as opposed to alienable common good.

CONCLUSION

Both Brodies and Moynihan appear to misunderstand the two leading cases of Ruthin Castle and Magistrates of Forfar and proceed on this basis to conclude that the park is common good (and then further that it is inalienable). I concede that if the park is indeed common good then the arguments that both make about inalienability are probably correct. But I reject the reasoning adopted to classify the park as common good in the first place since it proceeds on a false premise.

The park was acquired using a very specific statutory power to acquire land for a park.  Admittedly this opens up the very interesting question posed by Andrew Ferguson in his book Common Good Law (Avizandum, 2006) in which he points out the difficulty in common good definition in cases where statutory and common good purposes appear to coincide.

More extreme difficulties of proof will arise, of course, in relation to the types of statutory purpose which could also be said to be common good purposes, such as the provision of public recreation spaces, and there the burden of proof might be said to shift towards showing that the property had not simply fallen into that public use rather than having been specifically acquired under statutory purposes using rates income for that purpose.” (page 83)

If Ferguson’s line of reasoning were to be followed, I suspect a court would rule that Portobello Park is not common good.

To conclude, these two opinions may well be correct. I don’t know since only a court can resolve this question and it has never yet been faced with this particular set of circumstances. What I do assert, however, is that in reaching the views they have, both opinions rely on a misreading of existing cases. If read correctly, the Ruthin Castle case suggests that Portobello Park is not common good since it was acquired using a very specific statutory power. The fact that Section 74 mandated the council to then “dedicate” the park to be used as a park would make the park inalienable common good only if the land was already common good.

As a coda, I am intrigued by the claim in Brodies opinion that such is the strength of Gerry Moynihan’s opinion (that the land is inalienable common good), that “he has confirmed he would decline to act for the council should it seek to assert that the Property is not Common Good or that it is not inalienable Common Good.” (para. 6.5)

It is an important principle that an Advocate “should not, when available to accept instructions, refuse to accept instructions to act for any litigant” (Fifth Edition of the Guide to the Professional Conduct of Advocates, Section 8.3). I am unclear what exceptions contained in Section 8.3 to this general principle could apply that would support such a refusal.