11. December 2011 · Comments Off on Give the folk of Perth a referendum · Categories: Common Good, Governance, Land Rights, Legal affairs, Politics, Poor had no Lawyers

The Whin Park controversy (see previous post) is merely the latest of a number of controversies brewing across Scotland in relation to common good land. In Perth, the Council is proposing to demolish the Perth City Hall. Amidst all the objections, no-one seems yet to have raised the fact that the City Hall is part of the common good of the Royal Burgh of Perth and thus belongs to the citizens of Perth. As the text accompanying the Perth & Kinross Archives page makes clear, the land upon which the City Hall sits was granted to the City of Perth in 1604 by Queen Anne, later confirmed in a further charter by King James VI. Further background to common good can be obtained in Common Good – A Quick Guide.

Like Inverness, the townspeople are having decisions made about their common land by Councillors who represent constituents in places far, far away from Inverness or Perth. It is long past time that the guid folk of Scotland’s 197 burghs wrested control of their affairs back from the undemocratic behemoths of Highland Council and Perth & Kinross Council who seem to have little knowledge, understanding or appreciation of the legal history of the towns they claim to govern.

Perth, like Inverness, should be given a referendum on the matter.


Railway Bridge in Whin Park (Peter Moore) / CC BY-SA 2.0

Highland Council are proposing to build a new road – the West Link – to provide a southern bypass for Inverness and allow traffic travelling from the A82 to the A9 and vice-versa to avoid the town centre. I have no view on the merits or otherwise of the proposal or any of the particular options. I do, however, have a view on the fact that Highland Council are in a state of denial that part of the land required for the new road belongs to the Common good Fund of the Royal Burgh of Inverness. This does not, of itself, prevent a road being built but it may require the Council to seek the approval of the courts and would certainly entitle the Common Good Fund to be receive a capital sum by way of compensation. The story has unfolded in an interesting fashion.

First of all, congratulations are in order to BBC Radio Scotland journalist Andrew Thomson who did what more journalists should do and that is investigate the stories behind the headlines. Andrew’s investigations were published online on 29 November 2011 and broadcast on Radio Scotland’s Good Morning Scotland the same day. The title deeds revealed that the Whin Park forms part of the former Bught Estate which the Inverness Town Council acquired in 1923 from Colonel Alexander RB Warrand.

The response of Highland Council to this story was to deny that any land involved was common good.

A further statement was made to the BBC on 1 December in which Councillor John Laing, Chair of the Transport Committee claimed that he had been given a “categorical assurance that on the face of the titles neither Whin Park or Bught Park are held on the Inverness Common Good account.”

This is statement designed to spread confusion. I have examined over 100 titles of common good land. None of them admitted on the face of the title that they formed part of a Common Good Fund. This is not something that is proclaimed in bold letters on the title. Rather it is a status that is inferred from the specific circumstances of the transaction.

The fact that neither park is held on the Common Good Account is also irrelevant. The central claim of the BBC story is that the parks are Common Good so of course they don’t appear on the Common Good account – if they did, there would be no story. Local authority’s accounts of common good are notoriously inaccurate.

Drew Hendry, the leader of the SNP opposition on Highland Council then tabled a question on the matter and asked what legal advice had been sought. In their response, the Council expanded on their previous statement and claimed that,

“..there was no formal legal advice sought in relation to the ownership of land.” but that, “Following a question raised during the public consultation in relation to the ownership of the land in the areas of the Canal Pitches and Whin Park, a detailed check of the Council’s Titles has confirmed that no part of the ground owned by the Council within the possible routes identified for the Inverness West Link Road is held under the Inverness Common Good, except for the bed of the River Ness.”

Thus the Council is now clearly stating that it has examined the titles and concluded that the land is not common good. Now, the criteria for deciding whether or not land forms part of the common good is reasonably straightforward. All land acquired by Scotland’s burghs is common good unless it was acquired using statutory powers OR was held in a special trust (Magistrates of Banff v Ruthin Castle Ltd 1944 SLT 373). This leading case was recently upheld by the Inner House of the Court of Session in Wilson vs Inverclyde, 2003 and cited by Scottish Ministers as the appropriate definition. Further background can be obtained from Common Good – A Quick Guide.

Highland Council thus now need to answer the following question.

What criteria did you apply in your examination of the title deeds that led you to conclude that the land is not common good?

As far as I can tell, the application of the appropriate legal test would suggest that it is. I may, of course, be wrong but the Council now need to tell the citizens of Inverness how they have arrived at this conclusion. Meanwhile, you can make up your own mind by reading the title deeds which can be downloaded from the links at the foot of this post.

On the evidence available, it is clear that the parks belong to the citizens of Inverness and any proposals to alienate their common land should only be done after obtaining their consent – through a referendum.

NOTE – I will be giving a public lecture in Inverness on Tuesday 13 December at 7pm at Royal Highland Hotel. Tickets £5 on the door

UPDATE OCT 2012 Professor Rennie has prepared a legal opinion which concludes that “In my opinion no part of the Bught Estate as now vested in the Highland Council forms part of the assets of the common good fund of the Royal Burgh of Inverness.” (at 2.11)

Bught Estate Title Deeds

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11. December 2011 · Comments Off on 100 years of waiting for the land · Categories: Democracy, Farming, Land Reform, Land Use, Politics, Poor had no Lawyers

One hundred years ago, the Small Landholders (Scotland) Act 1911 was passed by the Liberal Government of Herbert Henry Asquith, 1st Earl of Oxford and Asquith. It was a bold and radical reform designed to allow families to obtain landholdings across Scotland on the same basis as the crofters had achieved in 1886. It thus, in effect, extended crofting tenure across the whole of Scotland. Subsequent Acts of 1916 and 1919 provided greater powers for state intervention to acquire land in response to promises that had been made to men who enlisted for the Great War that they would receive land on their return. The story of land settlement is told in the late Leah Leneman’s comprehensive account, Fit for Heroes, Land Settlement in Scotland after World War I (Aberdeen University Press, 1989).

I recall this groundbreaking legislation prompted by an interview I did for BBC Scotland’s Out of Doors programme on 10 December 2011 (funnily enough I was last interviewed – on the topic of farm subsidies – exactly a year ago). The programme interviewed Chrissie Sugden from Acorn Co-operative, an organisation with is trying to obtain land in Argyll to create crofts and allow young people and families to get hold of land to build an home and livelihood. It turns out that the co-op is having difficulty finding land to buy. I was asked to respond and frankly, I wish I had been a bit more frank about the ongoing scandal that is land in Scotland.

How is it that 100 years after an aristocratic Liberal Prime Minister finds the will to intervene in the land market in order to provide land to those who need it, a succession of Labour/Liberal coalitions and now SNP governments in Scotland have singularly failed?

How is it that the Russian Mafia can buy as much land as they want in Scotland and hold it secretly in offshore tax havens in the Caribbean but a group of enterprising people in rural Scotland who are looking for land to make a home for themselves and their families cannot?

I think it is rapidly getting to the stage where we need to get back to the tactics of the late 19th and early 20th century in the form of land occupations, rent strikes and civil disobedience.

It’s not hard to distribute land more fairly and equitably. It just requires a bit of political backbone.