Is Portobello park common good (2)?

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.