I will be in Parliament tomorrow (Tuesday 18 January) giving evidence to the Justice Committee on the Long Leases (Scotland) Bill. I will be seeking to exempt common good land from the provisions of the bill which allows for all land held on a lease of over 175 years and with over 100 years left to run to be converted automatically to full ownership.
The case which inspires my interest in this is that of the Waverley Market, referred to in a previous post. I remain of the view that this land forms part of the Common Good of the City of Edinburgh but, in their evidence (available here at LL5), the Council continue to refute this. What is interesting about the Council’s evidence is that it contines to avoid specifying the precise legal grounds, either statutory or derived from case law, upon which its position rests. Attempts are underway to find out what these grounds are but until they become clear, I have good authority for my assertion that the site is common good.
The Council’s argument (which is laid out plainly in their evidence) is that because it was a fruit and vegetable market, hence it was common good. Accordingly, in 1938, when it ceased to be a market, it ceased to be common good.
My argument is that the market has nothing to do with this. The site became part of the common good as a consequence of being acquired by the Common Good Fund as part of the land assembly for the New Town in the late 19th century. Furthermore, markets were speficially removed from the common good by Section 145 of the Edinburgh Corporation Act 1967 (by which time Waverley Market was no longer a market). This highlights my argument that common good status can only be removed by statute, by court order, or by selling the property outright to a third party.
Incidentally, what really happened in the 1930s was that the Edinburgh Corporation Act of 1933 provided that all market rights (which were held by citizens and gave them legal rights to take their produce to market) would be abolished if and when the market was closed. It was then closed and moved in 1938 which is the point at which the Council claims that the common good status disappeared. In fact, all that happened was that it ceased to be a market and was still common good (and is referred to as common good in a later Act of 1950).
Despite the specific disagreement over the Waverley Market, I welcome the fact that the City of Edinburgh Council support the exemption of common good land from the provisions of the Long Leases Bill. They also argue for an exemption for where the grassum (an initial payment on a long lease) divided by the term of the lease is over Â£100. This matches the existing exemption for all commercial leases with an annual rent of over Â£100. This suggests that such a situation applies to the Waverley Market but I do not know since I have not seen the lease for a long time.