Hansard

Colleagues may be surprised that a member who represents a constituency in the south of Scotland should be taking part in a debate on a bill brought to Parliament by the City of Edinburgh Council to resolve a particular issue that prevents plans for a new school from progressing. However, I was brought up in Edinburgh and I have very pleasant memories of Portobello, particularly of the outdoor swimming pool with a wave machine, which most people here are probably too young to recall. However, that is not why I am speaking in the debate. I am interested in the issues around the common good land and the reasons why the bill was introduced. The obstacles preventing the plans for the new Portobello school from progressing have arisen because of what seems to be an anomaly in legislation that was passed over 40 years ago.

Common good funds are the assets and income of the former burghs of Scotland: portfolios of land, property and investments that by law exist for the common good of the inhabitants of the former burghs, not of the residents of the current local authorities. Title to common good assets is held by successor local authorities, so the Local Government (Scotland) Act 1973 transferred the assets that were held by the town councils to the new district councils that were formed in 1975; after that, the Local Government etc (Scotland) Act 1994 transferred them to the new unitary authorities in 1996.

Some town councils transferred the town’s common good assets in 1975 to new trusts in order to prevent them from being taken over by the new district councils, and properties were purchased or gifted to communities for specific purposes or for the benefit of a particular group of residents. Some common good assets were owned by burghs that did not have town councils prior to 1975. The situation is very complex, so knowledge of and documentation on common good properties is often very poor. For example, a number of properties in Dumfries were recently found to be common good properties, which people had not been aware of previously.

Portobello park is part of an area of land that was purchased by the council in 1898. That was two years after Portobello, which had been a burgh in its own right, was incorporated into Edinburgh by an act of Parliament, so the common good property is owned by Edinburgh rather than by Portobello. As we have heard, the land was sold on specific conditions, which has resulted in its having inalienable common good status.

The Local Government (Scotland) Act 1973 enables inalienable common good land to be disposed of with the consent of the Court of Session or a sheriff, and it enables the court to impose conditions that other land should be substituted for the land that is lost. However, as we have heard, inalienable common good land may not be appropriated—that is, used for an alternative use by the council. Although it can be sold off, it cannot be used for alternative uses by the same council. As we heard from Cameron Buchanan, that was not a problem before 1996 because education was the responsibility of the regional council, to which the land would have been disposed, but with unitary authorities the council is no longer able to do that. The bill seeks to address the anomaly that, in the case of this particular asset and this particular council, the inalienable common good land can be disposed of but not appropriated by the local authority for another purpose.

There is no doubt in my mind that the proposed school, which will be a community school, will be of benefit to the community. I am sure that that will be the case. I note that the bill does not circumvent the planning process in any way. However, there is still an issue about whether the 1973 act needs amendment, because we could have a whole load of other bills of a similar type coming along unless we look at the principle and the problem with that act. It will be interesting to see whether the proposed community empowerment (Scotland) bill contains a proposal on the matter.

Andy Wightman and James Perman undertook a review of common good land in 2005, and they recommended that we need a new common good act because the Common Good Act 1491 is still the main act that governs the use of common good land, obviously amended by all the subsequent bits of legislation. It may be that we need a consolidation bill on common good property.