Common good property: statutory guidance for local authorities

Introduction

Guidance

1. Part 8 of the Community Empowerment (Scotland) Act 2015 (the Act) imposes duties on local authorities in relation to common good property. Sections 103 and 105 of the Act require local authorities to have regard to any guidance issued by Scottish Ministers in relation to those duties. This document provides such guidance.

Overview

2. Common good is property owned by a local authority which has been passed down, through local government reorganisation, from former burghs. Those burghs would have received it as a gift or purchased it. It includes land and buildings, and moveable items such as furniture and art. It may include cash where property has been sold and income received.

3. The use or disposal of an item of common good property can be subject to conditions imposed by those who gifted or sold the property. In some cases, whether or not a property can be sold may have to be decided by the courts.

4. It is worth noting that, due to the time which has passed since property was first acquired by a burgh, it can be difficult to establish whether property is common good.

Community Empowerment (Scotland) Act 2015

5. Part 8 of the Act seeks to increase transparency about the existence of common good assets and to ensure there is community involvement in decisions taken about their identification, use and disposal.

6. The Act places new duties on local authorities in relation to common good property:

• Section 102 places a duty on local authorities to “establish and maintain a register of property which is held by the authority as part of the common good.”
• Section 104 places a duty on local authorities that, “Before taking any decision to dispose of, or change the use of, such [common good] property the local authority must publish details about the proposed disposal or, as the case may be, the use to which the authority proposes to put the property.”

7. Part 8 of the Act does not define or redefine common good or remove or alter any restrictions on the use or disposal of common good property.

8. The Act does not make a distinction between alienable and inalienable common good property and therefore should be taken to cover both types.

Related Legislation and Guidance

9. When considering this guidance, local authorities should also be mindful of other legislation and guidance which may have an impact upon decisions about the use of common good property.

10. The two key pieces of legislation which set out the framework for dealing with common good property are:

• Local Government (Scotland) Act 1973 ( Section 75)
• Local Government etc. (Scotland) Act 1994 ( Section 15)

11. Local authorities should also have regard to the principles set out in the Scottish Land Rights and Responsibilities Statement, the Scottish Government’s Guidance on Engaging Communities in Decisions Relating to Land, and any advice about common good land which may be issued by the Scottish Land Commission.

12. Local authorities will also want to be aware of the guidance on community asset transfers. Communities may request the transfer of common good property, but agreement to an asset transfer request would not override existing restrictions, such as requiring the agreement of the courts for disposal when the property concerned is classed as inalienable common good property.