The Land of Scotland and the Common Good:Ownerless Land and Common Good Land

Robert Sutherland, Advocate

Terra Firma Chambers

Ownerless Land• bona vacantia – ownerless goods, effects or

property• originally referred to property of person who

died without any successors – property fell to King as ultimas haeres – only applied where no heir, however remote, could be found – see Stair, Institutions, III.3.47

• in modern law applies mainly to dissolved companies, but also to other ownerless land

Ownerless Land• see Scottish Environment Protection Agency v

Joint Liquidators of the Scottish Coal Co Ltd, 2014 SLT 259 at paras 104 – 109

• Crown (QLTR) usually sells on bona vacantia property it acquires – more of an administrative right – the ‘ultimate executor’

• right of Crown to waive or disclaim bona vacantia property it has a right to – potentially leaving land without an owner

Ownerless Land• abandoned land? - Scottish Environment

Protection Agency v Joint Liquidators of the Scottish Coal Co Ltd

• common land – greens, mosses, grazings; markets? - likely to have been held by burghs and others for the benefit of the public, see Green’s Encyclopaedia of the Laws of Scotland, Fairs and Markets; Blackie v Magistrates of Edinburgh, (1884) 11 R 783

Ownerless Land

• commonties – areas of land owned in common by certain landowners for use in common between them – either rural or urban – see, e.g., Anderson v Magistrates of Lauder, 1930 SLT 725 and 1933 SLT 190

Ownerless Land• very few areas of land actually likely to be

ownerless• likely to be some areas of common land and

commonties remaining – but difficult to identify

• once identified, what do you do with them?• abandoned or neglected land – clause 48,

Community Empowerment (Scotland) Bill – excludes bona vacantia and ultimas haeres

Common Good Landss 73-75, Local Government (S) Act 1973•s73 - subject to certain exceptions, can appropriate for any function land vested for purpose of any other function•s74 - can dispose of land held by it subject to best consideration requirements•s75(1) applies that Part of the 1973 Act to alienable common good land

Common Good Land• s75(2) - where LA desires to dispose of

inalienable common good land, may apply to Court of Session or the Sheriff to authorise disposal (and court may authorise disposal subject to conditions)

• s75(3) - court may impose condition requiring LA to provide land to be used for same purpose in substitution for land to be disposed

Common Good Land

• distinction between ‘alienable’ [e.g., former town hall?] and ‘inalienable’ [e.g., public park] common good land

• can dispose of ‘inalienable’ common good land, subject to court sanctioned conditions

• cannot alienate ‘inalienable’ common good land

Common Good Land

• past 200 years LA’s have freely alienated and disposed of ‘inalienable’ common good land

• assisted by removal of feudal burdens under Abolition of Feudal Tenure (Scotland) Act 2000

Common Good LandCommunity Empowerment (Scotland) Bill•clause 63 – common good registers•clause 65 – disposal and use of common good property – duty to consult•EN, para 281: “Common good property is usually of most interest to people in the immediate neighbourhood, and it would not be appropriate to consult community bodies from other parts of the local authority area.”

Common Good Land

• clause 66(2) – LA must have regard to SM guidance “in relation to the management and use of property that forms part of the common good”

Common Good LandChallenges to modernising protection of common good land

•definition?•exhaustive register?•LA conflict of interest?•policy conflicts and joined-up thinking?

Common Good LandChallenges to modernising protection of common good land

Policy Considerations•maintenance of distinction between alienable and inalienable?•what level of protection?•who decides?•short term interests v long term considerations?

The Land of Scotland and the Common Good:Ownerless Land and Common Good Land

Robert Sutherland, Advocate

Terra Firma Chambers