On 8 February 2017 The Local Government and Communities Committee of the Scottish Parliament launched a call for written evidence in relation to “common good property and funds”. This closed on Wednesday 22 March 2017 and the 18 responses it garnered can be found here.
I did not put in an individual response. I had a very small role in relation to the response (PDF) put in by the Law Society of Scotland (and my role really was very small – the draft response was passed to me in advance for comment and I offered a couple of thoughts, but the draft was largely unchanged at submission). Of the other responses, the joint response (PDF) by Fife Council and the Society of Local Authority Lawyers and Administrators in Scotland deserves a special mention, penned as it was by Andrew Ferguson (the author of the core text in this area). I also enjoyed Neil King’s response, which he has posted on his blog.
One of the points I did ponder that did not quite make it into the Law Society of Scotland’s response related to access to justice, especially as community instigated challenges in this area might (as the law stands) face the hurdle of judicial review at the Court of Session. There are cost and Edinburgh-centric issues in raising such an action, which could be as much of a headache for some communities as any quirky common good issues (say uncertainty around disposal conditions relating to items of property) would be. Where an environmental angle could be found, perhaps in a situation where the use of sensitive land was at issue, communities might be able to shoehorn into the Aarhus Convention side of things, but otherwise communities would need to consider potentially hefty legal bills for probing legitimate issues. I am happy to note that these points have been developed a little in the Fife/SOLAR response by Andrew Ferguson that I have already referred to.
What comes next? I suppose we wait to see what the Committee says. In the meantime, a Scottish Government consultation which has opened today, this time triggered by Part 4 of the Land Reform (Scotland) Act 2016, is of more than passing interest.
Section 44 of that legislation is about “engaging communities in decisions relating to land”. This related consultation exercise will, in due course, frame guidance that is to be issued about “the circumstances in which persons with control over land (for example, owners and occupiers) should carry out community engagement”. There is no carve out for local authorities, so the guidance as to engagement that should be undertaken in terms of the 2016 Act will run alongside any other duties a local authority owner of common good property will find itself under (in terms of section 104 of the Community Empowerment (Scotland) Act 2015). Mind you, it should be stressed that this new guidance will be for all persons with control over land. As such, the responses to that consultation, and the Government’s response to those responses, will be of more than niche interest.