Can Common Good assets deliver greater public benefit?

In this blog, Policy Officer James MacKessack-Leitch looks at the role Common Good Land has in Scotland today and how it can deliver land reform objectives.

Following the publication of the report looking at ‘Delivering Greater Benefit from Common Good Land and Buildings’ some key questions are posed in how to modernise Scotland’s Common Good land and property.

In many respects urban land reform – particularly community ownership – has proven more challenging to foster than its rural partner. There are, however, across Scotland, often significant portfolios of urban land and assets that represent arguably the oldest (if not original) form of community ownership – the Common Good of the Burghs.

This land and property – granted to, or acquired by the Burghs from the medieval period until their abolition in 1975 – was intended to help support the running of the Burgh, as well as provide amenity space for the citizens of the Burgh, and resources such as grazing land and woods.

However, by the 19th century many of these assets had been sold, appropriated, or simply lost from records, and by the time the Land Reform Review Group (LRRG) published their report in 2014, of the original 197 Burghs, 54 were recorded as having no Common Good assets at all.[1]

The abolition of Burghs, and subsequent local government reforms in the second half of the 20th century, further weakened links between Common Good assets and local governance and management. This has led to a confusing picture where in many cases it’s not clear when an asset is part of the Common Good.

Nevertheless, many of the remaining assets are cherished by local residents, and are often of significant heritage value. This leads us to our first question. Few, if any, residents of former burghs will be grazing livestock in their local park, and with modern local government reform there’s little call for using former burgh chambers for their intended purpose – so what is the 21st century purpose for such assets?

In reality if we’re looking at Common Good through the lens of community ownership, then the answer lies with the community. But drawing on our review of community ownership from last year we can expect that “whether intended to deliver employment, housing, education, recreation or amenity, asset ownership is typically a means to an end: addressing community decline and furthering sustainable development.”[2]

Fundamentally, the Common Good is a portfolio of land and property in our cities, towns and villages that is held for the benefit of the community, but this can be hard to see after centuries of mixed perceptions and legal interventions. For example, some of the thorny legal issues that cause confusion are: alienability (whether an asset can be disposed of – i.e. sold or leased long term); whether an asset is alienable or inalienable; what is Common Good; what are the rights and responsibilities of the custodians (Local Authorities); and what involvement the community has in day-to-day management or any decision making. Which takes us to the next question, how do we strip away the confusing legal framework?

Perhaps the simple answer is with new legislation. Only a new legal framework can cut through the existing morass of legislation and case law, and address some of the most problematic issues, like alienability. This view was also shared by the Land Reform Review Group who recommended, “a new statutory framework should be developed to modernise the arrangements governing Common Good property.”[3]

Taking the concept of alienability as an example, with the rise of community empowerment and participative democratic engagement, alienability can look increasingly archaic and unfit for purpose. In the 21st century it may make more sense to empower the local community to help govern, manage, and ultimately decide the future of their Common Good assets, than rely on legal precedents set decades or centuries earlier.

This is also where things get very interesting. If it is agreed that new legislation is required, then there’s also an opportunity to look beyond the technical fixes, to a vision of a modern 21st century Common Good – not least by extending the concept beyond the former Burghs.

As the last Royal Burgh Charter was granted in 1700 there are a number of substantial Scottish towns with no Common Good assets – settlements that developed during the industrial revolution, and the five post-war New Towns, have no Common Good despite being some of the largest population centres in the country.

However, they do all have property that could, or would, be considered Common Good had they been Burghs – town halls, council chambers or other civic buildings, parks and greenspace. It’s difficult to see why such cherished and communal assets should not receive the same sort of status afforded to Common Good elsewhere, and allow the residents a measure of influence over what is, and certainly will become, their local heritage.

Creating new Common Good – also enabling former Burghs to rebuild and expand their Common Good portfolios – would require new legislation. But if done carefully and with a view to sustainability and long term prosperity, it could facilitate the preservation of built heritage and greenspace, and cultivate a flourishing of community led development throughout urban Scotland.

Like rural community owned estates, which are at heart a portfolio of assets, a modernised Common Good could cross subsidise activities and investment, take a lead on local housing and infrastructure, and become a champion of sustainable development.

This leads to the final question (for the moment), and perhaps the question with most options as answers – how should Common Good be governed?

Given the scale of some Common Good portfolios, and the fact they would serve populations of tens of thousands, or more, who makes the decisions, how and why, and with what level of scrutiny, transparency, and accountability, become very serious considerations.

One possibility might be to draw upon examples of hybrid governance models. One option, for example, might be a tripartite model where seats on the board are equally split between residents, service users (such as sports clubs and community groups), and the local public authorities (the council, but also perhaps enterprise agencies or others). Such models are used in similar settings outwith Scotland, and if managed well they allow every voice to be heard – and give every party a real stake.

To explore the potential opportunities to achieve greater benefit from the Common Good land and buildings we will be investigate three areas over the coming months:

• the purpose of Common Good, and whether the concept could or should be applied beyond historic burghs
• whether there is a need for new legislation, and if so, what other opportunities this option presents
• the development of a protocol to help promote understanding of, and good practice in Common Good management.

Fundamentally, Common Good represents an extensive property portfolio from which it should be possible to derive significant community, local economic, and environmental benefit, with the right governance and legal framework. It could also be a game changer for urban land reform and community development, and a catalyst to deliver the benefits of community empowerment and ownership in urban areas that have so far been unrealised.

To find out more about this work, read the latest Land Focus and visit our website.

[1] https://www.gov.scot/publications/land-reform-review-group-final-report-land-scotland-common-good/pages/36/

[2] Review of the effectiveness of current community ownership mechanisms and of options for supporting the expansion of community ownership in Scotland

[3] https://www.gov.scot/publications/land-reform-review-group-final-report-land-scotland-common-good/pages/36/