COUNCILS across the UK, under the mantra of good asset management, are increasingly looking to sell off or develop surplus or apparently non-productive land and buildings.
Inevitably with a proactive policy such as this, title issues come to the fore.
The press has been littered with cases where there has been public outcry that the council is trying to sell or develop ground that is not theirs to do so. Many of th
ese protests focus on land and property classified as "for the common good". Whether it is plans to develop Glasgow's Botanic Gardens or Edinburgh's controversial blueprints for Caltongate, there are persistent claims that councils are disregarding the safeguards surrounding common good assets.
The concept of land for "the common good" dates back to the 15th century and the grant of land and property to the burghs of Scotland. It is unique to Scotland and represents land and property held for all the people of that burgh. The burghs of Scotland are now gone, subsumed in various local government reorganisations, and title has now passed to the current unitary local authorities of Scotland.
But the rights associated with those original burghs still remain: a local authority, in administering common good land and property, must have regard to the rights of the inhabitants of the local area to which the common good originally related. The exception to this is the municipal authorities of Glasgow, Edinburgh, Aberdeen and Dundee, who must have regard to all the inhabitants in their area.
Legislation gives a local authority the power to do anything that it considers is likely to promote or improve the well-being of the area and/or people within that area, as long as it is not prohibited by existing legislation. Title to common good assets lies with local authorities, but it is the restrictions that come with the asset and the responsibilities to the local rights of the inhabitants that puts common good assets into a separate category. These responsibilities and restrictions are set out in myriad regulations and acts, some dating back centuries.
In theory, with common good assets protected in law, their use restricted and disposal often only permitted with the authority of the courts, why should there so much concern about the safeguards in place?
The two most significant reasons are the paucity of good-quality records showing precisely what land and property falls under common good, and a lack of consolidated legislation covering the local authorities' responsibilities in this area. Both of these issues can be addressed if local and central government have the will to do so.
Local government should have been maintaining appropriate asset registers covering all an authority's assets since the early 1990s. These registers are vital in ensuring the effective stewardship, control and management of council assets. However, it is clear that in some local authorities, appropriate registers covering the area's common good assets have not been put in place.
Yet the precise and effective recording of common good assets is at least as important as recording all other council assets, and arguably more so.
The inclusion of common good assets on these registers does present particular difficulties as a result of the historic nature of many of the assets and the numerous reorganisations of local government since these assets were endowed to the local inhabitants. But without a register that is supported by clarity over who has legal title, disputes and mistakes will continue to happen.
Listing and clarifying their ownership is not an insurmountable job, but it needs to be made a priority.
The Scottish Parliament has a role in this, too. Its petitions committee has seen a number of submissions from members of the public concerned about this area. It now requires the Scottish Parliament to act to bring together and clarify local government powers and responsibilities in relation to common good.
It is right asset management has become a hot topic for local and central government, but this needs to be accompanied by a focus on title, stewardship and responsibilities.
• Nick Bennett is a managing partner at chartered accountancy firm Scott-Moncrieff, and also the chairman of the Chartered Institute of Public Finance and Accountancy's Local Authority Scotland Accounts Advisory Committee.
The full article contains 712 words and appears in The Scotsman newspaper.
