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.


(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]

It has been a rocky road for the Land Reform Review Group which was established in July 2012 and whose final report The Land of Scotland and the Common Good was published this morning (Low Resolution version – 13Mb pdf – on Scottish Government website here and 52Mb high resolution version on Scottish Government website here or my website here). A Scottish government press release is here. Response from Community Land Scotland here. Lesley Riddoch comments here. Scottish Tenant Farmers Association reaction here. Scottish Gamekeepers’ Association reaction here. Scottish National Party reaction here. Scottish Land and Estates reaction here. Community Energy Scotland here. Scottish Labour Party reaction here. Scottish Green Party reaction here. Lord Shrewsbury reaction here. Calum Macleod blog here and West Highland Free Press analysis here. Knight Frank reaction here. CKD Galbraith reaction here. Pinsent Masons reaction here. Brian Wilson reaction here. John Muir Trust here. Bell Ingram reaction here. Savills reaction here. Gillespie Macandrew reaction here. Scottish Conservative & Unionist Party reaction here. Scottish Liberal Democrats reaction here. Evidence submitted to Scottish Parliament’s Rural Affairs Committee here.

This blog provides a brief initial reaction to the report.

By the time the Group published its interim report in May 2013, two of its three members had resigned and the report itself was widely criticised (e.g. see here, here and here). The Group was then strengthened by an additional member and the appointment of a specialist adviser. This re-configured group has survived intact with the exception of one of the advisers, Andrew Bruce-Wootton, who resigned in April 2014.

Much of the turmoil reflects the fact that this is a controversial subject, it is complex and it has received scant academic or political attention for over a decade. The Final Report is thus something of a minor triumph. It is more comprehensive than anything that has gone before and it is detailed and thorough in its description and analysis of the topics covered. The 62 recommendations are wide-ranging. Some will be regarded as radical and perhaps even controversial in certain quarters but there is in fact not one which is anything other than plain common sense and certainly none that citizens of most other European countries would be surprised at.

The group’s remit was to make proposals for land reform measures that would,

1 Enable more people in rural and urban Scotland to have a stake in the ownership, governance, management and use of land, which will lead to a greater diversity of land ownership, and ownership types, in Scotland;

2 Assist with the acquisition and management of land (and also land assets) by communities, to make stronger, more resilient, and independent communities which have an even greater stake in their development;

3 Generate, support, promote, and deliver new relationships between land, people, economy and environment in Scotland.

If these ambitions are to be realised then big changes are needed in Scotland’s archaic and regressive system of land tenure. As the opening paragraph of the preface states,

This Report is entitled “The Land of Scotland and the Common Good”. It reflects the importance of land as a finite resource, and explores how the arrangements governing the possession and use of land facilitate or inhibit progress towards achieving a Scotland which is economically successful, socially just and environmentally sustainable.

Plain common sense.

What is notable about the report is that it helpfully defines what it means by land reform. For that past 15 years, politicians and others have been guilty of framing land reform as something exclusively to do with rural Scotland, with the Highlands and Islands in particular and with the affairs of tenant farmers and communities in these places. These are important elements to be sure but, as the report’s title indicates, the land of Scotland is  the totality of the sovereign territory. This is emphasised by the image on the cover which shows the legal boundaries of Scotland. (1)

The group’s defines land reform as

measures that modify or change the arrangements governing the possession and use of land in Scotland in the public interest.”

This relates to urban land, rural land and the marine environment. The recommendations reflect this comprehensive agenda. They include longer and more secure tenancies for private housing tenants, new powers of compulsory purchase, the establishment of a Housing Land Corporation to acquire land, new arrangements for common good land, the devolution of the Crown Estate, removing exemptions from business rates enjoyed by owners of rural land, giving children the right to inherit land, prohibiting companies in tax havens from registering title, protecting common land from land grabbing, reviewing hunting rights, limiting the amount of land any one beneficial owner can own and introducing a wide range of new powers for communities to take more control of the land around them in towns, cities and the countryside.

Of the 62 recommendations, 58 are within the full devolved competence of the Scottish Parliament. The four that are reserved relate to inheritance and capital taxation, State Aid rules and the Crown Estate – all topics which the Scottish Affairs Committee are examining in a parallel inquiry.

It is notable that this report is the first ever report into the topic since the establishment of the Scottish Parliament in 1999. It’s early work was informed by the Land Reform Policy Group, chaired by Lord Sewel which published its final report in January 1999. In the foreword, Lord Sewel wrote,

“It is crucial that we regard land reform not as a once-for-all issue but as an ongoing process. The parliament will be able to test how this early legislation works and how it effects change. They will then have the opportunity to revisit and refine their initial achievement…..These present recommendations are therefore by no means the final word on land reform; they are a platform upon which we can build for the future”.

However, as the Land Reform Review group note in their own Preface,

As a time limited Review Group, we are acutely aware that Government approaches to land reform, when there has been a political will to engage with the issue at all, have traditionally been characterised by periodic review and piecemeal intervention. Given the importance of land reform to delivering societal aspirations, we recommend that the Scottish Government regard land as a separate, well supported area of policy, to ensure that the common good of the people of Scotland is well served by its land resources.

As the report notes,

The first session of the Scottish Parliament had a land reform programme established by the Scottish Executive. In contrast, since 2003, there has been no land reform programme. The land reform measures after 2003 have therefore tended to be specific responses to particular issues, rather than part of any wider land reform strategy or programme.

Hopefully, this report will serve to shift the baseline – to move the agenda forward and to deliver a consensus that these recommendations provide the minimum necessary to re-frame and modernise Scotland’s stystem of land governance to one which is people-centred and in which the land of Scotland serves the common good of all of its citizens. The report does not cover a range of important topics but if all of its recommendations were to be implemented over the coming 5 years, we would be living in a country with a far more democratic and equitable distribution of land and power. The report concludes thus.

The Group recognises that this is a critical time for the future of Scotland. Along with the people of Scotland, land is the most important resource in the nation. How it is owned, managed and used is of fundamental importance to Scotland’s future prospects, whatever constitutional direction the country chooses. The Group believes that we have reached a critical point in relation to land issues. We offer the Scottish Government, a range of recommendations, summarised in Section 34, and we encourage it to be radical in its thinking and bold in its action. The prize to the nation will be significant.

UPDATE 1240 23 May

The Scottish Government’s press release contains this statement from Minister for Environment and Climate Change Paul Wheelhouse.

“I am pleased to read the recommendations on improving the availability of land, both rural and urban, and the need to increase access to rural housing, these are issues that will have a direct impact on many people’s lives. The Group have also highlighted the need to address transparency of land ownership in Scotland which I believe is crucial to taking forward this agenda.

“I also welcome that the benefits of community ownership have been highlighted within the report. We have always said that community ownership empowers communities, sparks regeneration and drives renewal which is why we have an ambitious target to get one million acres of land into community ownership by 2020.

“I am pleased to announce that I agree with the Review Group’s recommendation for a working group to develop the strategy for achieving the million acre target and I will shortly be forming a working group to achieve just that.

“Land Reform not just about land ownership but how that land is used and managed and the benefits it can bring to the people of Scotland. I look forward to considering how the recommendations in this report can further benefit the people in Scotland through the relationship with our land.”

But in the Notes to Editors, the release states that,

The Scottish Government recently completed a review on business rates. This Government is committed to maintaining the most competitive business tax environment anywhere in the UK through our business rates policies and we can confirm there are no plans to make changes to the position of agricultural business rates relief.

So a major Review is published and within 3 hours, the Government flatly rejects a key recommendation because of a previous review that was not concerned with land reform – a statement not even consistent with its statement at the time.

In November 2012, the Scottish Government launched a public consultation on how the non-domestic rating and valuation appeals systems can support businesses and sustainable economic growth and on how to improve transparency and streamline the operation of the rating system. As the analysis of consultation responses noted:

Agricultural land and sporting estates are exempt from business rates and the comments on this issue were mixed with some supporting the exemption because of the benefit to the rural economy, and others opposed because they felt all businesses should be treated in the same way.

In its response to the consultation, the Scottish Government said that it had “committed to use the period until the next revaluation in 2017 to conduct a thorough and comprehensive review of the whole business rates system.” In relation to existing reliefs and exemptions, the consultation response said: “All rates reliefs will be kept under regular review to ensure that benefit is directed where it is most needed. Although views were mixed, the Scottish Government has on balance decided that all current exemptions provided, including to agriculture, should be retained.”

So, despite saying today that there are no plans to make changes, in September 2013, Ministers said that the “period to 2017 would be used to conduct a thorough and comprehensive review of the whole business rates system“. Confused?


(1) Note the controversial sea boundary off Berwick where the sea boundary as defined by the Scottish Adjacent Waters Boundaries Order 1999 contrasts with the boundary of Scotland’s civil jurisdiction.

Some Minor Gripes

The footnotes are a mess. One simply states “SAC ref” Others note speeches by give no reference other than a date. Another is “Wightman (blog re commonty at Biggar)” – no link and it is Carluke not Biggar. Hopefully these can be sorted.

The recommendations are not numbered.

There is no executive summary.

The good citizens of the Royal Burgh of Auchterarder face being banned from walking across their common land because of the risk that they might choose to stop and gaze across at the Ryder Cup golf competiton taking place on the neighbouring golf course at Gleneagles. Safety and security are being cited as reasons why part of the Auchterader Golf Course (which is part of the common good land of the Burgh) and a public footpath are to be closed for the duration of the competition.

This is a bizarre state of affairs. Let me explain why.

The right of responsible access to land is enshrined in Part 1 of the Land Reform (Scotland) Act 2003. It was always recognised, however, that there were circumstances in which areas of land could and should be exempted from these rights. If land was to be used for an agricultural show, a sporting event or a pop concert where attendees were to be admitted on payment of a fee, then it is perfectly proper that the public’s right of access should be suspended for a defined period of time. Section 11 of the Act provides that local authorities can make orders exempting land and where it is to cover a period of more than six days then Scottish Ministers must approve and the public has a right to submit objections.

The Act also placed a duty on local authorities to define Core Paths – routes along which the public could feel comfortable walking and enjoying their access rights. But Section 11 did not provide any means for exempting Core Paths and so, in 2013, the Scottish Government proposed the Land Reform (Scotland) Act 2003 (Modification) Order 2013 which would amend Section 11 and allow Core Paths to be closed because of animal disease outbreaks or because of an event taking place. Draft Guidance states that such exemptions would be limited to events where paid admission was charged and in the interests of safety and security involving “competition participants and spectators.”

The Draft Guidance noted that “We know that there will be requests for section 11 exemptions for two major events in 2014 – the Commonwealth Games and the Ryder Cup.”

So far, so good.

It is perfectly reasonable for the organisers of the Commonwealth Games to seek to exempt the shooting range at Barry Buddon from the legal right to walk across it and along any core paths for the duration of the Games. It is also reasonable in the context of the Ryder Cup venue at Gleneagles.

But it is one thing to seek to exempt land over which you have control and are managing for the purposes of an event open to the paying public. It is quite another indeed to seek to suspend the public’s right of access over other land – particularly over common land that belongs to the people of Auchterarder.

And that is what is being proposed in Auchterarder.

In a paper prepared for the Auchterarder Common Good Fund Committee on 26 February 2014, a map shows the extent of land over which the organisers of the Ryder Cup wish to apply for an exemption including Core Path AUCH/35/1 (see maps below).

It notes that the north east boundary of the Gleneagles land “abuts Auchterarder Golf Course and people standing on the Auchterarder course side of the boundary might be able to view the Ryder Cup action.”(1) The image below shows the boundary.


Oh dear! Folk might get to see some golfers without paying….

The report goes on to say that discussions are underway between Ryder Cup Europe, Police Scotland, Perth & kinross Council and Auchterarder Golf club “about how public order and safety can be maintained at this area during the event, as there is a risk that uncontrolled numbers of people may try to view the event from this location.”

If no restrictions are put in place there is a potential for a build up of people, seeking to use the Core Path/Right of Way in order to view the event, which creates a safety, security and public order risk.”

In order to obtain a Section 11 Order, an application has to be made to Perth & Kinross Council by the organisers. The Ryder Cup is a partnership between the Scottish Government, Ryder Cup Europe and Diageo. Such an application will be for a period of greater that six days and thus needs to be referred to Scottish Ministers. The public have the right make representations and objections and Ministers may hold a public local inquiry if they wish.

On 11 December 2013, the Minister for Environment and Climate Change, Paul Wheelhouse acknowledged such an application during evidence to the Rural Affairs, Climate Change and Environment Committee (Col. 3119).

I can assure the committee that if any proposal comes before me, I will take a balanced view on the need to ensure public access to land under the Land Reform (Scotland) Act 2003 and the strong sentiment across Scotland about ensuring the right to responsible access, while at the same time protecting the public interest and public safety and ensuring the security of the events themselves. It is a balancing act, but we will take all those matters into account.”

Scottish Ministers will thus be the decision-maker in an application for a Section 11 Order to which they (as one of the three organisers) are a party – which is in itself interesting.

It appears to me that this whole process is a gross over reaction to what is a real but managable possibility of public order problems. I am no expert in the law on such matters but I would be surprised if there were not already powers available to the police to deal with such an eventuality. In any event, exempting this land from access rights does not in itself prohibit anyone walking over it and thus potential public order issues may still arise. (2)

So here is what I think should happen.

If an application is made, the citizens of Auchterarder should register their objections to Scottish Ministers and the application should be refused.

Auchterarder Community Council should then, in association with the police and the Council, set up a viewing zone open to the public with associated refreshments and public entertainment. Mini-golf can be laid on for children (and adults). Spot the celebrity golfer competitions can be organised. Information can be provided about the history of the commons of Auchterarder. Such an event would be free but ticketed so as to avert any security and public order problems.

Commons are for the people and not for corporate elites.


(1) Auchterarder Common is leased to the Auchterarder Golf Club until May 2075.

(2) It is not commonly understood that Part I of the Land Reform (Scotland) Act 2003 confers rights which are there to be exercised and relied upon as people choose. Over areas of land where the rights do not apply (by being exempted from the scope of Act or by temporary suspension via Section 11), the Act does not prohibit or ban the public. In such circumstances they are, in effect, subject to the common law as it applied before the Act came into force.