The Highland Council (the 'Council') is consulting on a proposal regarding an area of undeveloped land at Longman Drive in Inverness.
The land sits between 17 Longman Drive and an electricity substation site, with restricted access for pedestrians only. The tenants of 17 Longman Drive wish to lease the land and use it for commercial purposes in connection with their landscaping business, such as the storage of plant, equipment, vehicles and materials.
The community is being consulted about the proposal because this land forms part of the Council's 'Common Good Fund'.
What is a Common Good Fund?
Common Good Funds date back to the establishment of Scotland's Royal Burghs in the 11th century and may be considered an ancient form of community ownership, significant to the historic, cultural and economic heritage of Scotland's towns and cities. This distinct type of ownership consists of property which belonged to one of 196 former burghs - including land and buildings, together with moveables such as paintings and furniture.
Royal Charters granted Burghs special rights and privileges, as well as land to provide space for civic buildings and markets, areas for recreation, grazing livestock and other activities, all for the benefit of the Burghs' inhabitants. Mismanagement and corruption in the late medieval period led to the Common Good Act 1491 which remains in force today, giving the property special status and protection. However, over time, many Common Good assets were sold, misappropriated or lost from records, and the status of 'Burgh' has been abolished.
Local government reforms in 1947, 1973 and 1993 brought about changes in ownership of Common Good Funds adding further complexity to an already uncertain picture; and in 2014, the Scottish Government's Land Reform Review Group reported that there were 54 former Burghs for which no assets had been documented.
The last Royal Burgh Charter was granted in 1700, and as a result, there are a number of large Scottish towns without a Common Good Fund despite all having property that would be considered Common Good if they had been Burghs - such as town halls, council buildings and parks. (To establish and properly deal with new Common Good assets, new legislation would be required to provide a modern and fit-for-purpose framework.)
Managing Common Good Funds
Today, Scotland's local authorities are responsible for managing the Common Good Funds of the former Burghs – each council area has at least one, a few have more than ten, and Fife has more than twenty. In managing these Funds, income generated from Common Good assets may be distributed to local causes or used to fund local events.
Local authorities have a duty to take account of the interests of residents in their management of Common Good Funds, but there is great variation in the way local authorities have interpreted this duty. The Community Empowerment Act (Scotland) 2015 (the '2015 Act') imposed new duties on local authorities relating to registration, use and disposal of Common Good assets. In addition to Scottish Government guidance on these duties, the Scottish Land Commission published a protocolin March 2023 which sets out how local authorities should act to meet their statutory duties, and steps which should be taken to improve transparency and community involvement in decision-making.
Expectations include local authorities establishing and maintaining a register of Common Good property which is easily accessible online, and providing details on the current use and management of assets - including whether land is being used, leased or is vacant, and whether its status is alienable (i.e. can be disposed of) or not. Community engagement should feature in local authorities' management of Common Good land, with involvement in decision making processes encouraged. In particular, when considering a disposal or change of use, a local authority should consider whether this will deliver public good and consult the community. Processes, timescales and costs should be transparent and information about income generation should be clear and accessible.
The Council's proposal
The land at Longman Drive being consulted upon by the Council, is understood to form part of the Inverness Common Good Fund by virtue of a Royal Charter granted by King James VI in January 1591.
The 2015 Act requires the Council to consult the community about the current proposal because it is considering both disposing of a Common Good asset (by granting a lease for a period of more than 10 years) and changing the use of the asset. As set out in the consultation document, it is suggested that the proposal will allow a currently vacant piece of Common Good land to be used and to generate income which will benefit the Inverness Common Good Fund.
The consultation - which relates only to the Common Good aspect of the proposal and not to planning or any other permissions which may be required - seeks views on the proposed lease, including potential benefits and any issues or concerns. Responses submitted to [email protected] by 23 June will be considered by the Council before a decision is reached.