Common Good & the Law

Posted On: 30 June 2009

Author: Scott Blair

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Scott Blair spoke at the conference on Common Good organised by Environmental Law Centre Scotland (ELCS) held in Lanark on 27 June 2009.  The event reflected on the growing awareness of how common good law can be used to protect important aspects of our environment, including sites of public, historic or natural importance. 

Scott has practical experience of common good cases and his talk covered the legal framework for common good and included detailed consideration of the caselaw.  An excerpt from his paper entitled "Common Good and the Law" can be found below and his full paper can be viewed by clicking on the link at the top of the page.

For more information on ELCS visit www.elcscotland.org.uk

COMMON GOOD AND THE LAW

Scott Blair, Advocate

What is Common Good?

The common good is a fund of money or assets administered by a Scottish local authority in respect of each former burgh within the area of the local authority.

Common good is owned by the local authority although it is administered separately from other local authority funds for accounting purposes. Ownership is absolute in the strict sense that the authority holds legal title to it. However what the authority can do with the property is subject to a system of statutory control. This control has the potential to limit the extent to which the authority can dispose of or deal with the property and on what terms.

Some notion of common good has existed since at least the middle ages. Most common good is in the form of land although some common good property could be in the form of assets other than land. In one old case a set of books by a local historian was said to be part of the common good. However for the purposes of today, land is what we are about as it is by far the most common form of common good property. 

Identifying what is and what is not part of the common good is not always easy and has been the subject of much litigation.

Common good is not owned by the community nor is it held in trust for the community. It is not owned by the Community Council nor does the Community Council enjoy any special legal status in relation to decisions made in relation to common good land. 

Ownership and trust are legal concepts and there is no doubt that common good land is owned by the local authority albeit that ownership is subject to legal restriction. Common good land can be sold even if at some point in the dim and distant past the donor of the land declared that it could never be sold. We will look at more of this later.

Broadly speaking common good is a fund of money and assets, formerly owned by the burgh, and now owned by the relevant Scottish unitary local authority. The fund is in turn administered under rules both in relation to the interests of the people who live in the former burgh and in  relation to the disposal of the common good.

Common good can include former burgh buildings, common land, gifts and essentially any property which is administered as part of the common good.

Statutory Framework

There has been some form of statutory control of the common good since at least the end of the 15th century.  The first piece of legislation was the Common Good Act 1491.  More modern controls came in the 19th century under the then prevailing local government legislation and many of the leading cases on common good were decided under the 19th century statutory frame work.

The modern statutory frame work is contained in the Local Government (Scotland) Act 1973.  This abolished the old burgh system, county councils, and district councils and so on.  A two tier system of government was set up consisting of district and regional councils.  Of course as a result of further reforms under the Local Government etc (Scotland) Act 1994 the regional councils have been abolished and local authorities are now entirely unitary.

(Continued.  For full paper please click on the link at the top of the page.)