Friday, 5 September 2014

Common Good - Barrhead High School and Cowan Park

East Renfrewshire Council (ERC) wants to build a new £22m high school in Barrhead to replace the decrepit existing one built in the 1970s. They have planning permission and funding but there’s a problem – the site of the new school is in a public park called Cowan Park which is inalienable common good (CG) land. That means the Council cant change its existing use even though they have planning permission. There’s a statutory procedure which enables a council to apply to the courts for permission to dispose of inalienable CG but there’s no procedure to permit them to retain it but change its use.

But theres a glimmer of hope. The new school is to be built as a public private partnership involving ERC leasing the site for 25 years to a private sector partner which will then sublet the new school back to the Council for the same period. If ERC can convince the court that this arrangement amounts to a disposal then considering the Council is also proposing to demolish the old school, landscape the site and add it back to Cowan Park so there’s no net loss of green space – the court should look favourably on the application.

ERC lodged its application with the Court of Session in February 2014 and the Lord Ordinary (Lord Tyre) issued his judgement on 19 August: he did not agree that the PPP arrangements amounted to a disposal. This, therefore, stops the new school project in its tracks because, as already noted, there is no procedure for a Council to retain inalienable CG but change its use.

There are various options now open to ERC in light of this setback. They could do what both North and South Lanarkshire Councils did when faced with a similar dilemma some years back and go ahead and build the school anyway in the hope nobody will object. Or they could do what Edinburgh Council did in the face of a legal challenge to building a new school on inalienable common good (Portobello Park) and obtain a private Act of Parliament to authorise the project. But the point of this blog is to question whether Cowan Park – the site of the new Barrhead High School – is common good land at all. Because, if it’s not, there’s nothing to stop the project going ahead right now. To begin with, it’s indispensably necessary to do a bit of history.

Medieval Origins of Common Good 

Nowadays, government finances its expenditure by tax. But in the Middle Ages, the authorities were supposed to “live off their own”, that is finance their official functions from their own property. Burghs were a sort of medieval equivalent of today’s Enterprise Zones or Freeports and, when they were established in Scotland from the 12th century onwards by the Crown (“royal burgh”) or a lay or ecclesiastical magnate (“burgh of barony”), they were given by their patron an endowment, the income from which was meant to finance their running expenses. 

Today, if you wanted to endow something, you’d give a sum of money to fund managers to invest in a portfolio of stocks, shares and other investments. But in the Middle Ages, the stock market didn’t exist and the only thing which yielded an annual return was land in the shape of the rent paid by its tenants. Thus, the endowment of medieval burghs was land and this land is a burgh’s “common good”.  

The rent the common good land yielded funded the services the town provided although in a pre-industrial era these were pretty minimalist and dated by today’s standards: they did not, for example, include housing. Many burghs provided a school although they were not obliged to and not all did: many considered provision of a burgh kirk of greater importance. Beyond that, the services provided often amounted to little more than a bit of rudimentary street sweeping if there was anything left over after repairing the mercat cross and the tolbooth.

There was a sub-set of common good: property used by the town or its citizens. These included things like the tolbooth (town hall & gaol) and such medieval arcana as public bleaching greens and market stances. These were inalienable in the sense that the magistrates couldn’t sell them on a whim and so deprive the citizens of their use. (There’s a complicated area of law around the right to sell an inalienable CG asset in the context of replacing it with a better facility but I don’t want to go there just now.) But the rest of the common good – the majority of it which was just the assets in the portfolio of the burgh’s endowment, so to speak – was freely alienable by the council. Thus, if Blackburgh Town Council happened to own the lands of Whitecraigs, it could sell them and invest the proceeds in the lands of Greenriggs instead just as the trustees of a modern endowment might sell shares in Company A to reinvest in Company B. 

Another feature of burgh life in times gone by was the “special trust”. Nowadays, if you want to donate money for a purpose not catered for by one of the numerous established charities, you would nominate your own trustees. But in previous centuries (when there were few charities as we now understand them), donors tended to nominate their local burgh council as trustee. Again, the principal investment was usually land but the magistrates had to apply the rents to the particular local purpose directed by the donor – frequently educational or care of orphans or the elderly etc. (These trusts were often known as “mortifications”.)

Industrial Revolution – statutory powers and rates 

The arrangements described above were barely adequate in the pre-industrial era but cracked fatally under the strain of the onset of the Industrial Revolution in the second half of the 18th century. The meagre resources of the common good supplemented by trusts (i.e. charity) proved totally inadequate to finance the new challenges faced by rapidly growing towns such as improved water supplies, sanitation, street lighting etc. 

At first, individual burghs responded by obtaining private Acts of Parliament authorising specific projects paid for by levying a tax – a “rate” – on the citizens. There was also the problem of towns which were not burghs (royal or baronial) and so had no resources to fund improvements at all: some of these (Airdrie is an example) responded by seeking an Act to incorporate themselves as a burgh, conferring statutory powers of management and to levy rates to pay for them. These statutory developments continued and grew until they reached a culmination in the Burgh Police (Scotland) Act 1892 (the word “police” used there in its original sense of civic government generally rather than just law enforcement). This Act gave the local sheriff power to declare any town with a population over 700 a burgh and gave all burghs – existing and new, royal or baronial – a vast range of powers of management ranging down to minutiae such as bathing machines, shoeblack stands and abuse of steam whistles and trumpets. In a parallel development, general Acts of Parliament were passed on subjects of more general import – e.g. education and housing – giving burghs the power – and, increasingly in the 20th century, the duty – to provide these services. And all of this legislation was underpinned by powers to pay for everything through rates imposed on the citizens.

So far as burghs’ property portfolios were concerned, therefore, by the 20th century, the common good (and land held by trusts administered by burghs) had become a historical legacy dwarfed by the vast extent of the schools, reservoirs, sewage works, council house estates etc. etc. acquired as a result of these statutory developments. This led to a famous dictum by Lord Wark in the 1943 case of Magistrates of Banff v Ruthin Castle Ltd which analysed burgh property into three mutually exclusive categories thus:-

“… all property of a royal burgh or of a burgh of barony not acquired under statutory powers or held under special trusts forms part of the common good.”

Before Cowan Park - OS 6 inch map, 1896

Back to Barrhead 

Where does Cowan Park fit into this historical matrix? 

It was acquired by Barrhead Burgh Council (BBC) in 1910. That date sets off an immediate alarm bell – this is not some piece of ancient burghal patrimony like Glasgow Green or Edinburgh’s Meadows but a late acquisition firmly in the “statutory era”. That’s not to say Cowan Park can’t be common good: it might be if, for example, it had been bought with a cash surplus on the common good account. But it wasn’t. It was acquired after a local businessmen, James Cowan of Ross Hall (now a private hospital), bequeathed money to create a public park in Barrhead. His trustees carried this out by buying land from local brothers Joseph and John Turner for £4,200 which the Turners, at the request of the Cowan Trustees, conveyed directly to BBC by a Feu Disposition. This contained a real burden (title condition) to the effect that the land conveyed be held by BBC as a public park for the use and enjoyment of the inhabitants of Barrhead in all time coming and for no other purpose. 

Now, remembering the mutually exclusive “trichotomy” of burgh property per the Wark dictum of common good, statutory acquisition or trust property, we need to mention the Public Parks (Scotland) Act 1878 which gave burgh councils statutory power to provide parks. So the possibility of a statutory acquisition is very much in play. And here we need to consult Barrhead’s burgh archives because, if it was minuted that the town council had resolved to accept the Cowan bequest and fund the maintenance of the park from the common good fund or, alternatively, accept it in virtue of statutory powers under the Parks Act and fund it off the rates, then that would be almost conclusive. These enquiries need to be made but let’s assume meantime that the Council minutes are silent and we need to tease out the answer from other more circumstantial evidence. 

At first sight, it looks like a no-brainer that this is common good. First, there’s the precedent of the Banff case already mentioned. This concerned the gift by the Duke of Fife to the councils of Banff (royal burgh) and Macduff (burgh of barony) jointly of Duff House (above) and its policies. The possibility of a statutory acquisition under the Public Parks Act wasn’t argued to the court – perhaps because, ever since the gift, the property had been let commercially, first as a hotel and then as a private clinic. That just left a choice between common good and trust and what was fatal to trust was that (in contrast to the Cowan bequest to Barrhead which decreed a public park) the Duke of Fife’s gift to Banff and Macduff had been unconditional with no particular trust purposes imposed. Hence it was CG. 

Second, there’s another even closer precedent. The 1952 case of McDougal’s Trustees v Inland Revenue concerned the gift to Edinburgh Corporation of the Hermitage of Braid (below) in very similar circumstances to James Cowan’s gift to BarrheadMr McDougal had bought the land from a third party and directed them to convey it directly to the Corporation subject to a real burden that it be used as a public park for the benefit of the citizens of Edinburgh and for no other purpose. Again, the possibility of a statutory acquisition under the Parks Act wasn’t argued (it’s harder to understand why not) so it was a contest between common good and trust. But what proved fatal to trust this time was that the transaction had been specifically linked to the common good in that the Edinburgh CG fund had lent Mr McDougal the price of the land on the basis it would repaid when he died.

But to my mind, there’s a more fundamental distinction between Cowan Park in Barrhead and these cases: Edinburgh, Banff and Macduff are all burghs of great antiquity and existed as such at common law. But Barrhead only became a burgh for the first time in 1894 under the statutory procedures of the Burgh Police (Scotland) Act 1892. As a mere “creature of statute”, which can only do what a statute authorises it to do, any property acquired by Barrhead can only be – in the words of the Wark dictum – “acquired under statutory powers”.
(Against that, I would have to point out s.38 of the 1892 Act (which was repealed but substantially re-enacted by s.7 of the Town Councils (Scotland) Act 1900) which provided “The magistrates and Commissioners elected in virtue of this Act shall, within the limits of the burgh for the purposes of this Act, possess such and the like rights, powers, authorities, and jurisdiction as are possessed by the magistrates and council of royal … burghs in Scotland.” But I would emphasise the words “for the purposes of this Act” which do not include the acquisition of some sort of statutory common good fund.)

Entrance to Cowan Park
That’s all a very long and lawyerish way of saying I don’t think Cowan Park in Barrhead is common good at all. Or at least, that there are some very plausible arguments that it might not be. I’ll finish with a few more random points:

1. East Renfrewshire Council appears to have only recently started to believe that Cowan Park is common good. In response to Andy Wightman and James Perman's enquiry into CG in 2004, they reported that they had none and ERC’s Head of Planning told Friends of Cowan Park (FOCP) the same as recently as October 2012 [1]. ERC having no CG is, of course, entirely consistent with it having no common law royal burghs or burghs of barony within its boundaries. 

2. Consistently with the above, the building of the current Barrhead High School on Cowan Park in the early 1970s didn’t seem to be attended by any common good implications. Barrhead Burgh Council sold 8.14 acres of the park for the school to Renfrew County Council in 1968. (There is one curiosity about this transaction, however. There’s no sign in the public records [2] of the feudal superiors waiving the burden in the 1910 Feu Disposition by the Turners to BBC that the land could only ever be used as a park to allow it to be used for a school instead. However, that anomaly could be explained by the fact the BBC to RCC sale was effected by a deed sometimes used for sales to public bodies called a “statutory conveyance”: there’s a school of thought that a statutory conveyance washed the land it conveyed clean of any burdens restricting its use.) 

3. To replace the 8.14 acres sold out of the park for the current school in 1968, Barrhead Burgh Council bought 13.2 acres the following year from a neighbouring farmer. In East Renfrewshire Council’s recent petition [3] to the Court of Session for authority to dispose of part of Cowan Park for the new school, it was explicitly stated that this 13.2 acres had been bought under the Public Parks (Scotland) Act 1878 yet the Council also claim this to be common good. But if it was bought under the Public Parks Act, then, per the Wark dictum, it cannot be CG. This is evidence of muddled thinking about CG on the part of ERC and/or its lawyers and one wonders if there might not also have been mistakes made about the status of the original acquisition of the park from the Cowan trustees in 1910. 

4. A final little point is that, in ERC's Annual Accounts for 2012/13, there’s mention under the heading of Council administered trust funds (page 109) of a “James Cowan Bequest” (balance at 31/3/12 - £132) and a “Cowan Park Cropping Fund” (£9). The FOCP website tells us that James Cowan bequeathed £10,000 to a park and, as already seen, only £4,200 of that was spent on the actual land. Could these entries in the Council accounts represent the shrivelled residue of the balance of £5,800. The point here is, could this (despite the adverse dicta in the M’dougal (Hermitage of Braid) case) point towards Cowan Park being an asset of a special trust rather than common good? I’m no expert on trust law but I don’t think using a part of the park for an alternative use would offend against the terms of any such trust provided equivalent land were returned to the park in a way which didn’t destroy its overall integrity.

POSTSCRIPT – since I started typing this, East Renfrewshire Council has issued an obscurely worded press release from which it appears that, rather than moving straight to a private Act of Parliament (which the release wrongly calls a “Private Members Bill”), the Council is going to appeal Lord Tyre’s decision that the arrangements with their PPP partner do not amount to a “disposal”. I was going to type “Good luck with that” but I’ll replace that with a rather more humble suggestion that, if ERC are minded to spend more on legal fees, I think it would be a good idea to investigate whether an appeal could be combined with seeking a declaration as to whether Cowan Park is common good at all. Because if it’s not, there’s nothing to prevent the new school going ahead.

[2] Copies of the relevant Register of Sasines search sheets are available on Friends of Cowan Park's website  
[3] The petition can be seen on Andy Wightman's website

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