Summer is almost upon us and, for residents of Edinburgh, there are few better ways to spend a sunny evening than to gather over a barbeque in The Meadows or to hack a small ball around the Bruntsfield Links. To lose the opportunity to enjoy these simple pleasures would be unthinkable, so the knowledge that these are two of a number of areas throughout Scotland that benefit from protection as "common good land" is comforting. So what exactly is common good land in Scotland?
It is not unusual for local authority land to be sold off, for instance to private builders, or to be used for the development of affordable housing. As the continued freedom to use common good land - which derives from the establishment of Scotland's Royal Burghs in the 11th century - is regarded as being for the benefit of the community a local authority is restricted in how it is able to use property that benefits from this protection.
The ability of a local authority to dispose of any common good land is unclear, although the Local Government (Scotland) Act 1973 enables this to be done in certain circumstances by reference to the courts. Unsurprisingly, disputes do arise when a local authority wishes to use land for a purpose different to that which is held as part of the common good. A recent case saw the City of Edinburgh Council defeated in its attempt to build a new school at Portobello Park after the court ruled that the park, as part of the common good, could not be used for this alternative purpose. The twist in the tail, however, is that the Council have now successfully circumvented the court's decision by promoting legislation (despite significant opposition) that allows the land to be appropriated for use as a school as originally intended.
Clearly there is a trade off to be made in these circumstances. Whilst it is, of course, understandable that the residents of Portobello will be disappointed to see their local green space reduced it would be difficult to argue that the development of a new school will not advance the "common good" of the local community in some form too.
Whilst it is unlikely that an examination of your title will reveal that your property forms part of an area of common good land, interpreting title deeds can be complex. If you are looking for advice on the terms of your title our property department would be delighted to help.
