08. December 2012 · Comments Off on Is Portobello park common good (2)? · Categories: Common Good, Democracy, Edinburgh, Legal affairs, Portobello

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.

I do not know whether Portobello Park forms part of the common good of the City and Royal Burgh of Edinburgh. Portobello Park Action Group (PPAG) do not know whether the Park is common good and the City of Edinburgh Council do not know either. Nobody knows in fact and only the Courts can rule on this matter. It is one of the stranger aspects of this case that this vital question has never been resolved since the current legal impediment to building a school on the park is predicated on the assumption that the park is common good.

PPAG asserted that it was common good and when I first looked at the title deeds of the land in May 2006, it certainly appeared that there was a prima facie case that it was. The Council initially refuted the assertion but in a paper to Council in January 2008 (in which the whole question of common good was discussed), it was asserted (on page 2) that “Facts and circumstances indicate that Portobello Park is common good”

In the two Court of Session cases on the matter, both parties (PPAG and CEC) agreed that Portobello Park was inalienable common good. I do not know the basis upon which they reached that conclusion but evidence unearthed in the last week suggests that both parties were wrong to arrive at such a view without testing the matter in Court. In all my work with communities on matters of common good, I always advise them to conduct sufficient research to establish a high degree of confidence in their own minds that any land at issue is in fact common good. I do not know how confident PPAG were in their view and I am at a loss to understand why the Council took the view they did.  So what is the evidence that Portobello Park is not common good?

 What is Common Good?

Before outlining the argument, it is important to note the broad definition of what constitutes common good which was first articulated in an Inner House decision by Lord Wark in the case of Magistrates of Banff v. Ruthin Castle Ltd. SC36 1944 at 384 in which he observes 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.”

This view of what constitutes common good was most recently upheld in the Inner House of the Court of Session in the case of Wilson v. Inverclyde 2003 (for example Lord Drummond Young at [4]). Thus, if it can be shown that the land on which Portobello Park is located was acquired using statutory powers, then it cannot form part of the common good and Lady Paton’s decision has no relevance. What then is this evidence?

Portobello Park

Portobello Park was acquired by the Lord Provost, Magistrates and Councillors of Edinburgh as part of the negotiated agreement to merge the burghs of Portobello and Edinburgh. The merger was given statutory force by the Edinburgh Extension Act 1896 which incorporated the agreement to create a park into section 74 of the Act.

 “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.”

On 20 July 1898, at a meeting of the Sub-Committee of the Lord Provost’s Committee, it is minuted that.

“The Sub-Committee have carefully considered the provision of a Public Park at Portobello. They have through the Town Clerk been in communication with the Agents of several proprietors of lands in the District. They have carefully considered the offers made and they are of opinion that a field extending to 56 acres or thereby on the estate of Sir James Miller of Manderston and situated to the south of the Railway Station would be a most suitable one for a Public Park. It can be acquired at the price of £25,000 and the Sub-Committee recommend that the Town Clerk should be authorised to accept the offer and to adjust the conditions of sale.”

By feu disposition of 12 November 1898, this land was acquired from Sir James Miller by the Lord Provost, Magistrates and Council of the City of Edinburgh. It contained the following condition.

“That the area or piece of ground hereby disponed shall be used exclusively as a Public Park and Recreation Ground for behoof of the Community of said City and it shall not be competent to nor in the power of my said disponees or their foresaids to erect or build or give liberty to any person or persons to erect or build houses or buildings of any kind whatsoever thereon except buildings to be used as a house or houses for the Park Officers and Gate Keepers to be employed by my said disponees or for other purposes appropriate to the uses of the area or piece of ground hereby disponed as a Public Park or Recreation Ground.”

These 56 acres were therefore acquired as a statutory obligation under the 1896 Act. But did the Council actually invoke statutory powers to buy the land? Arguably Section 74 of the 1896 Act is precisely that – a statutory power to acquire land for a park. But the Council could also credibly argue that it was using other statutory powers.

Section 58 of the Public Health (Scotland) Act 1867 provides that,

 “The Local Authority may provide, maintain, lay out, and improve grounds for public recreation, and support or contribute towards any premises provided for such purposes by any person whomsoever..”

Chapter 8 of the Public Parks (Scotland) Act 1878 gave powers to Local Authorities to “provide and maintain public parks and pleasure grounds..”

And Section 233 of the the Edinburgh Municipal and Police Act 1879 provides that the Magistrates and Council may,

 “…purchase, feu, lease, or otherwise acquire by agreement such lands in or adjacent to the burgh as they shall think suitable for public parks, gardens, and bleaching greens, drying greens, and grounds, and open spaces for the erection of public buildings, public wash-houses, baths, and gymnasiums, and other works of a permanent character, and such general improvements as may be conducive to the amenity of the burgh and the promotion of health, convenience, and recreation of the inhabitants, and lay out, form, and maintain such works and improvements, all proper and necessary access thereto, and support or contribute towards the support and maintenance of grounds provided for such purposes by any person whomsoever ……”

All of these Acts provide evidence that the land was bought from Sir James Miller using statutory powers conferred on the Council.

Where did the money come from?

In 1905, Thomas Hunter, the Town Clerk and Robert Paton, the City Chamberlain published a book entitled “Report on the Common Good of the City of Edinburgh”. Their remit, of 29 July 1902, was to “prepare and submit a report .. upon the Common Good of the City, its sources, of what it consists, its purposes, and the expenditure met from it during the past five years..”

The report presents the detailed Common Good accounts for the years 1894 to 1904. No common good funds were used to acquire the park. Instead, the £25,000 for the purchase of the park came out of the Capital Expenditure account of the Police Accounts of the City 1898-99. (1) Moreover, on a large, elegant map which shows the various common good properties in the City shaded different colours according to their origins, Portobello Park is marked as a park but not included as part of the common good.

What does this mean?

The above evidence of statutory powers and money coming from the Police Account suggest that Portobello Park is not, in fact, common good. Although at present nobody can know for sure, it is of such fundamental importance that it should perhaps be settled as quickly as possible.

Standing against the argument presented above is the fact that the Park was dedicated to public use as a park. Might this fact confer common good status? I know of no instance where this has been the case although dedication to a particular use is a factor in deciding whether or not common good land is alienable or inalienable. (2) It is therefore uncertain what legal weight would be given to this fact. If the park is common good then clearly the Court of Session decision stands but if it not, then the decision has no relevance.

How might this question be resolved? I am not a lawyer but I would have thought that a declarator in the Sheriff Court would be the route to take.

Who could take such an action?

Anybody who wishes to.

NOTES

(1) The term “police” in this context and “police burghs” has nothing directly to do with the Constabulary but is derived from the Greek word politeia, meaning the administration or government, especially of a city (polis).

(2) See Murray v. Magistrates of Forfar 1893 20 R 908, 1 SLT 105

FURTHER – as with all blog posts of a legal character, as a non-lawyer, I am happy to be corrected on any of the facts or opinions expressed.