Peebles Civic Society

“PEEBLES COMMON GOOD FUND”

Since 1999 Peebles Civic Society has been making representations to Scottish Borders Council about Peebles Common Good Fund, particularly about the composition of its land and buildings asset list, but with little success.  The only notable step forward was the provision of maps of the listed Common Good properties in 2003.  Is the Society’s concern justified?

The Common Good Fund comprises monetary assets, moveable assets and fixed or heritable assets.  Legal opinion, confirmed in a Scottish Parliamentary answer in 2006, is that “all property of a royal burgh or burgh of barony not acquired under statutory powers or held under special trusts forms part of the common good”.  Its ownership is vested in the local authority which, for the Peebles Common Good Fund, is now Scottish Borders Council, but by statute the fund is ring-fenced for use in the interests of the inhabitants of the area to which the Common Good Fund related prior to 1975 – that is, Peebles. Whilst the local authority has considerable discretion over the management of a Common Good Fund, if it sells any of the Common Good Fund assets the proceeds have to be credited to that Common Good Fund, not to any of the Council’s other funds.  Also, some Common Good property, such as property gifted to the Common Good, is inalienable and can only be disposed of with the consent of the courts.  Clearly, therefore, if property is not correctly classified as Common Good it will not be managed solely in the interests of the inhabitants of the area to which the Common Good related prior to 1975.

Whilst all the members of Scottish Borders Council are trustees of all eight Common Good Funds within the Scottish Borders and are responsible for major management decisions, the six local Tweeddale councillors make up the Peebles Common Good Fund Working Group.  In practice, the Working Group deals mainly with applications to the Fund for financial grant aid.  However, as trustees of all the Common Good Funds in the Scottish Borders, and as trustees of the Peebles Fund in particular, the local councillors have a duty to ensure that the Peebles Fund is managed in the best interests of the inhabitants of Peebles, not in the best interests of Scottish Borders as a whole.  As already stated, the best interests of the inhabitants of Peebles clearly require that all property that should be part of Peebles Common Good is classified as such.  Unfortunately, the Peebles Common Good Fund Working Group has shown little interest in this requirement, and its chairman has said that the matter is not important.

There are, however, several examples demonstrating that the correct classification of property is very important.

The land upon which the March Street Lane flats are built was previously Common Good but had been sold to DS Motors by the Council as Council land.  Despite representations from the Society the Council did not acknowledge it to be Common Good until shown to be so by the title searches of the subsequent developer.  The outcome was the necessary transfer of the £50,000 sale price, together with an £11,242 settlement for encroachment, from Council funds to the Peebles Common Good Fund.  Without transparent verification of what constitutes Council and Common Good Fund property respectively, it is impossible to know how often such cases of wrongful appropriation of the proceeds of sale by the Council occur, to the detriment of the Common Good Fund and the inhabitants of Peebles.

The new Kingsland School was built partly on “Neidpath Grazings”, which was recognised by the Council as being Common Good property because it was part of the Kirklands and Jedderfield title, which was included in the Royal Burgh’s Common Good asset list.  It therefore draws an annual rent of £3,630 to the Common Good Fund.  However, Glen Craig Nurseries and the adjacent car park area, also used for the school development, are part of the same title, and therefore must originally have been Common Good.  The question of whether or not they are still Common Good, and should be providing additional rent to the Fund, has never been answered.

Since 1999, Scottish Borders Council has repeatedly amended the asset list of Peebles Common Good Fund without explanation.  For instance, “The Gytes” was included in the Common Good asset lists of the Royal Burgh from 1901 to 1974 and subsequently by Tweeddale District Council until its demise in 1994, but in 2003 it was removed from the asset list by Scottish Borders Council.  Clearly, because of the sports development at The Gytes, the correct allocation to the Council or to the Common Good Fund is important.

Similarly, the substantial property “Land and Buildings at March Street” was included in the Royal Burgh’s asset list from 1964, and whilst it is recognised that parts may have been disposed of by the Royal Burgh it remains questionable that those disposals have reduced it to the very narrow strip currently recorded as “Land at March Street” along the western edge of Eddleston Water.  The question arises, therefore, of whether or not the old Roads Department depot, now being redeveloped for sheltered housing, was part of the original “Land and Buildings at March Street” and is still Common Good, although not recorded as such.

Some other properties that have disappeared from the1994 Common Good asset list are:

            Tennis Courts

            Eliot’s Park

Burgh’s Interest in Veteran’s Garden City Association houses in Rosetta Road

Feu Duties.

There is also the probability that some property that was not on the Royal Burgh’s Common Good asset list should have been on it, according to the appropriate legal criteria.

In 2003, Scottish Borders Council added “Walkershaugh” to the Peebles Common Good asset list, but removed it in 2008. The reason given was that as it had been acquired as part of the Walkershaugh/Whitestone/Kerfield property in 1926 for £3,630, with the benefit of a £2,000 loan raised under the statutory authority of the Public Parks (Scotland) Act, it could not be Common Good.  However, the Society’s searches of the Royal Burgh’s Annual Abstract of Accounts have revealed that 54% of the total purchase price was raised by public subscription, not funded by rates revenue, a fact either overlooked or not disclosed by the Council.  This would seem to suggest that at least half of Walkershaugh/Whitestone/Kerfield is Common Good.

These examples demonstrate, at the very least, well-founded suspicion that significant properties have been omitted by the Council from the land and buildings asset list of the Peebles Common Good Fund, to the detriment of the inhabitants of Peebles.  Moreover, as to whether or not it is important, a letter in March 2007 from the Scottish Executive to Councils’ Directors of Finance said:

“It would appear evident that, for council’s to fully maximise the potential of their assets they must hold accurate records of the assets they are responsible for.  This would include those assets held for the Common Good.”

The same letter, in addressing the question of the accessibility of Common Good information to the public, urges local authorities to recognise the level of public interest in the Common Good when considering how they fulfil their duty of Public Performance Reporting under section 13 of the Local Government (Scotland) Act 2003.  In addition, the local authorities’ own Improvement Service report, ‘The Management of Common Good Assets and Funds’, in 2008 says:

“The asset register should be published and the public invited to challenge and correct perceived defects in its scope and coverage.”  “Publicly testing the register will contribute to a culture of openness around the common good.”

Accordingly, the Society has pressed the Council, in respect of all property being assessed as to whether or not it is Common Good, to agree that:

i)          in each case the various details and conclusions of the assessment will be set out and made available for public scrutiny and challenge, together with a map of the property and a summary of the conveyance to the burgh and any subsequent deeds;  and

ii)         those details of all property investigations, whether for or against Common Good status, will be retained together on permanent record in the public domain.

Peebles Civic Society believes that the correct classification of property as being, or not being, Common Good, is not only important but essential for the correct management of the Peebles Common Good Fund in the interests of the inhabitants of Peebles.  It also believes that the only way to resolve the often recurring and time consuming doubts and challenges involving the composition of the Common Good asset list is to put the whole matter permanently in the public domain.

Anyone wishing to discuss aspects of this should contact the Society’s Chairman, Ronald Ireland, telephone 01721 720592, e-mail [email protected] .

Peebles Civic Society/01.11.2010

COMMON GOOD REFERENCE DOCUMENTS


1. 23 January 2004
Enquiry – Common Good Funds
Scottish Parliament Information Centre reply.

2. November 2004
“Scottish Borders Council – Investigation into complaints surrounding the stewardship of the Common Good Fund”, commissioned by Audit Scotland and undertaken by Scott-Moncrieff.

3. November 2005
“Common Good Land in Scotland – A Review and Critique” by Andy Wightman and James Perman.

4. 2006
“Common Good Law” by Andrew C Ferguson.
The textbook recommended by Scottish Borders Council.

5. March 2007
Letter from Scottish Executive to local authority Directors of Finance with guidance following Public Petitions 875 (Miss M E Mackenzie), 896 and 961; and associated letter from Deputy Minister for Finance.

6. March 20076
Audit Scotland’s Code of Audit Practice.

7. December 2007
“Accounting for the Common Good Fund – A Guidance Note for Practitioners” by LASAAC (The Local Authorities (Scotland) Accounting Advisory Committee)

8. 6 December 2007
“Common Good – A Quick Guide” by Andy Wightman.

9. June 2008
“The Management of Common Good Assets and Funds” by the local authority Improvement Service.

10. August 2008
“A Review of Common Good Funds in the Scottish Borders” by Scottish Borders Council.

11. “A Research Guide to Community Land Rights” by Andy Wightman (?) is expected to be available autumn 2009.

12. Websites:
http://www.scottishcommons.org/commongood.htm A comprehensive website providing information.
http://www.scottishcommons.org/news.htm A website providing news of Common Good activity.

13. E-mail addresses:
[email protected] and [email protected] Contacts for Andy Wightman and James Perman, leading authorities on and activists for the Common Good.

JBT/12.06.2009

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