Managing Common Good Land
Common good land is an ancient concept, but the passage of time has led not to reverence, but neglect, both in terms of the outdated legal framework within which it exists and the instances of the land being left to ruin.[1] That such a situation has occurred is surprising, given that this land exists across Scotland and is supposed to be used for the common good of local communities. The unfulfilled potential of this land necessitates reform, both of the management framework and our understanding of what ‘common good’ means today. The Community Empowerment (Scotland) Act 2015 represented a step towards such reform, making provision for the Scottish Ministers to produce guidance on common good land, including its management.[2] Disappointingly, however, the recently published guidance[3] does not mention this crucial aspect of the law. This blog-post will therefore attempt to explain the current law on the management of common good land, before suggesting that future guidance could institute sustainable development as an integral part of common good land.
Common good land dates to the 12th century, and derives from the grant of land by the Crown to newly established Royal Burghs.[4] These grants became known by the purpose for which they were intended[5] – the common good – and were used for recreation and domestic purposes. Case-law has determined that any land owned by the burghs which was not acquired under statutory powers, or held under special trust, is common good land.[6] The exact extent of common good land in Scotland is presently unknown,[7] although local authorities have recently undertaken the compilation of registers of their common good land.[8] We do know, however, that common good land can include parks, woods, fishing rights, mussel beds, the foreshore, and also buildings like town halls, museums and churches;[9] this broad range of land classified as common good, alongside the close connection of the land to the community in which it is situated, highlights the significance of this property.
Despite the importance of this land, however, prior to the 2015 Act there had been no statutory provisions regarding its management and, without the guidance provided for in that Act, local authorities still remain under no obligation to maintain common good land to any particular standard.[10] The only requirement, therefore, is the historic doctrine that the land should be used for the common good of the people of the burgh. This raises the question of what we consider to be the common good of local communities today. Recent case-law on this point has led to some discouraging results. For example, in Portobello Park Action Group Association v City of Edinburgh Council[11] the issue was whether the appropriation of common good land for the site of a new school would be consistent with using the land for the common good of the community. The court ultimately held that it would not, as it would restrict public use of the land, but the case demonstrates the difficulty in balancing competing community interests without any substantive guidance on what ‘the common good’ means. As Combe noted, ‘Some residents of Edinburgh may be happy with the outcome… others will only be happy when Portobello gets a new school’.[12] Another example of judicial consideration of the use of common good land is East Lothian District Council v National Coal Board,[13] in which local opposition to construction on common good land on the basis of the protection of wildlife was dismissed on economic grounds, and because of pre-existing decline of that type of habitat. This approach suggests the law around common good land has not kept pace with increasing concern for biodiversity and the environment. Overall, such decisions on the use of the land may be at odds with the requirements of modern society.
These difficulties faced by the courts, combined with instances of local authorities neglecting the land,[14] underscore the disappointment in the failure of the new guidance on common good land to discuss management, an omission criticised by the Development Trusts Association Scotland.[15] My argument in light of these problems is that such guidance is essential to help local authorities, the courts, and communities understand what common good land should be used for; and further, that any guidance ought to place sustainable development at the centre.
There are several justifications for doing this. Firstly, sustainable development aligns with the common good aim of benefitting communities, as it is most effective at the local level,[16] where it can have positive impacts on the community as a whole, in areas such as health, transport, and neighbourhood cohesiveness.[17]
A further reason to integrate sustainable development into common good land is the connection between property and sustainability. Management of land affects the social, economic and environmental interests of the community in which it is situated,[18] and these interests will be recognised as the three elements of sustainable development. Despite this intrinsic link between land use and sustainable development, however, our conception of property is often as a collection of rights, detached from any responsibilities.[19] Initial steps have been taken to reform this, with the Scottish Government’s new framework for landownership which contains both rights and responsibilities, including responsibilities in relation to each element of sustainable development. It would be easiest to begin to implement this policy change in relation to land owned by public authorities, and thus guidance on common good land could be used to bolster ongoing reforms to clarify landowners’ responsibilities. The contribution of sustainability is intensified in cities, where urbanisation poses huge challenges to the environment, and as all of Scotland’s cities are former burghs, the potential role of common good land in making cities more sustainable should not be overlooked.
Moreover, local authorities already have duties relating to sustainable development in their other roles, such as planning,[20] and land like national parks[21] and forests[22] which are under public authority control are already managed in line with sustainable development. Common good land is thus arguably an anomaly in not being subject to obligations relating to sustainable development. A final justification relates back to the aim of contributing to the common good. The recent report of the Land Reform Review Group considered that ‘central parts of the common good are environmental sustainability… economic success… and social justice’.[23] The three pillars of sustainable development can therefore be understood as a contemporary explanation of ‘the common good’.
In conclusion, until recently the law on common good land has been neglected, and remains reliant on the ancient requirement that it is used for the common good. Given the potential importance of this land to the community within which it is situated, and the historic lack of legal development on common good, it was arguably an obvious subject of reform in the Community Empowerment (Scotland) Act 2015. However, the subsequent failure to produce any guidance on management of the land is disappointing, and it is suggested that such guidance is necessary in order for all stakeholders to understand how the land should be used today. Given that sustainable development is now a common aim in land use by public authorities, the principle could also be incorporated in to any future guidance on common good land. This is particularly justifiable in relation to common good land because of the links between sustainability, communities, and land. Overall, a new framework is required to enable this ancient type of land to best serve the needs of modern communities, and regain its status as an essential part of community life; sustainable development could be central to these aims.
~ Rachael Miller
Rachael Miller is a 4th year law student. She received funding from The Carnegie Trust Vacation Scholarship Scheme this summer for a research project entitled “Common Good Land and Sustainable Development”. Her research was supervised by Dr Jill Robbie.
[1] See e.g. Grahame v Magistrates of Kirkcaldy (1879) 6 R. 1066; Motherwell District Council, petitioners 1988 GWD 15-666
[2] The Community Empowerment (Scotland) Act 2015, s.105(2).
[3] Available at https://www.gov.scot/Publications/2018/07/9700/1.
[4] Customary Rights in Scots Law: Test Cases on Access to Land in the Nineteenth Century, A.L.Jarman, 28 J. Legal Hist. 207, 2007, p.209.
[5] Common Good Law, A.C.Ferguson, Avizandum Publishing, 2006.
[6] Magistrates of Banff v Ruthin Castle Ltd. 1944 SC 36.
[7] Common Good Land in Scotland: A Review and Critique, A. Wightman & J. Perman, Caledonia Centre for Social Development, Commonweal Working Paper No. 5., 2005, p.10.
[8] Under obligations in the Community Empowerment (Scotland) Act 2015, s.102.
[9] List compiled based on Common Good Land in Scotland: A Review and Critique, A. Wightman & J. Perman, n.7, Annex III.
[10] Common Good Law, A.C.Ferguson, Avizandum Publishing, 2006, p.48.
[11] [2012] CSIH 69.
[12] Lessons in Scots law: the common good school, M. Combe, Edin. L.R. 2013, 17(1), 63-68, at p.68.
[13] 1982 S.L.T. 460.
[14] n.1.
[15] Analysis of consultation on draft guidance, p.20.
[16] Understanding Sustainable Development, J.Blewitt, Routledge, Second Edition, 2015, p.99.
[17] Conflicting Perceptions of Neighbourhood, H.Barton in Sustainable Communities, ed. H.Barton, Earthscan Publications, 2000, p.10.
[18] The Land We Share: Private Property And The Common Good, E.T.Freyfogle, Island Press/Shearwater Books, 2003, p.16
[19] Property Rights and Sustainability: Can They Be Reconciled?, K.Bosselmann in Property Rights and Sustainability, eds. D.Grinlinton and P.Taylor, Martinus Nijhoff Publishers, 2011, p.25.
[20] The Planning etc. (Scotland) Act 2006, Part 2.
[21] The National Parks (Scotland) Act 2000, s.1.
[22] The Forestry and Land Management (Scotland) Act 2018 s.2.
[23] The Land of Scotland and the Common Good, Report of the Land Reform Review Group, 2014, p.22, available at: http://www.gov.scot/Publications/2014/05/2852/downloads.
