Consultation on common good property guidance: analysis of responses

2 Common Good registers

2.1 The consultation document explained that section 102 of the Community Empowerment (Scotland) Act 2015 requires local authorities to develop and publish Common Good registers. Before publishing the final version of the register, each local authority must publish a list of property which it proposes to include on its Common Good register and consult on this list.

2.2 The draft guidance includes recommendations that the public should be able to view the draft list free of charge; be able to access it electronically (preferably on the local authority’s own website); and be able to request the list in alternative languages and formats. It should be available for comment for at least eight weeks and presents a range of information that should be included. Question 1 asked respondents for their views on any further suggested recommendations for where and how to publish the list, with accompanying rationale. Question 2 asked for thoughts on the time available for comment and Question 3 asked about whether any further information should be provided about the Common Good property listed.

Question 1: If applicable, where or how else should this information be published as a minimum requirement?

Why is this needed in addition?

2.3 Forty two answered this question. A range of additional options were suggested, although several respondents felt the suggestions already made in the draft guidance were sufficient. The additional options included making the draft list available:

• in all libraries (including mobile vans)
• at central and local Council offices
• in all public sector buildings
• at sports centres, job centres, community centres
• in the same venue as the electoral register
• at the Registers of Scotland (land and property only) and in GIS format

2.4 Respondents also made the suggestion that the list should be actively sent out, primarily to Community Councils, but other suggestions included all registered community groups; burgh Councils and Parishes; and all council tax payers. The suggestion to send to all council tax payers was around a concern that not all individuals have connections with community groups.

2.5 There were calls for the list to be made available on various websites: Registers of Scotland; all local authority websites (including via their consultation portals), clearly signposted; Scottish Government website and Tell Me Scotland.

2.6 Other suggested routes for publication included via: social media; in local newspapers and via local news groups; billboard advertising; programme of engagement events and meetings. Social media was supported due to its potential to get the message out more widely and because it was viewed as the future of communication.

2.7 A particular concern was that copies should be made widely available in paper format, such as at libraries and local offices, for those who do not have access to or who are not comfortable with using computers. Libraries and mobile vans were also seen as important locations for those for whom travel may be an issue, such as rural residents.

2.8 Further comments included the recommendation that the list should be published digitally to high ‘Open Data’ standards to enable open access and collaboration; that a map based list is insufficient alone because Common Good includes items that are moveable and funds; Councils should list Common Good as one of their services on their websites to help with awareness raising as well as conduct an advertising campaign to alert people to the publication of the list. Finally, that the register of Common Good should form part of a register of all local authority assets so that the information is in one readily accessible location.

Question 2: What are your views on the timescale of eight weeks for people to comment on the list of Common Good property?

2.9 Forty two answered this question. Opinions were mixed with 24 responding they thought it was about right and 18 that it should be longer. No-one suggested it should be shorter.

2.10 Amongst those who thought it should be longer, suggestions ranged from three months up to six months with the following arguments proffered for why the time should be longer:

• Common Good properties are important to communities. The importance may not be apparent immediately (or awareness of the list) and more time is appropriate to fully understand and allow more people to be able to comment.
• Eight weeks could fall during school or festive holiday time and this needs to be taken into account, even if a longer period is in place.
• Community Councils may only meet every couple of months or so and may have recess periods. Time is required to allow the Community Councils to properly consult on and consider their response.
• Time is required to perhaps investigate certain items on the list with possible historical research, site visits, meetings and local consultation involved. There may be many items on a single list to consider in this way and some will be more complex than others.
• To give time for legal action.
• A longer time is required to allow community groups time to consult with their members.

2.11 It was certainly felt by many that decisions should not be rushed and that enough time should be given to consideration of the items on the list. In addition, a concern was raised that there should be more of a focus on the quality of consultation and not just the time period, with inclusion in the guidance of more details on what local authorities are expected to do, ideally with reference to standards for community engagement.

Question 3: What, if any, further information about Common Good property should be provided?

2.12 The draft guidance recommends that the list of Common Good property should include as a minimum: the name of the asset, a brief description of what the asset is, the location of the asset, the name of the burgh to which the asset formerly belonged and any additional information about the asset which may be of use to a reader. However, there is no requirement on local authorities to make checks or confirm title before including assets on the list.

2.13 There were 41 responses to this question. About a third indicated that the information suggested in the draft guidance would be sufficient, with a view expressed that this would be consistent with other parts of the Act e.g. Asset Transfer Requests. Also, the historical nature of many heritable property assets can make it difficult to identify anything more. One respondent did make the suggestion that a review of what is included may be warranted once it is clearer what the various types of assets are across Scotland.

2.14 A large number of suggestions were put forward of what else could be included in a register, ranging from “all information” or “as full a description as possible” to a variety of content that fell largely within the following broad themes:

Identification as Common Good – There was a call for the guidance to request that it is made clear in the register what and how items are verified as Common Good and what are under investigation; also to make it clear where only part of an asset is Common Good in instances (e.g. with respect to land assets) where the asset is made up of more than one title. It was suggested to include why and how the asset has been identified as Common Good and consider the detail required to be clear. The example was given of the instance of a park where there are monuments within it.

Linked to this issue was that of ownership/control. There was a desire expressed to see information included on proof of ownership and title; who currently owns/rents/leases the asset, along with the length of lease and when it is up for review; and the date the asset was acquired (whether bought, leased or gifted). There was concern expressed about the idea of including an asset on the register where proof of ownership or title was not clear and how, without this, the asset could be considered as Common Good.

“The majority of the work to determine the Common Good aspects of local authority assets will fall to the legal services of local authorities and it is recognised that given the historical nature of these assets it is difficult to ascertain the extent of the titles. It should be noted that it would be considered poor professional legal practice to consider adding heritable properties to the list of Common Good assets without noting the titles first. The titles, being the recorded acquisition of the assets, are the starting point of any review of Common Good assets and often forms the main evidence when determining whether such asset forms part of the Common Good or not.” ( SOLAR & Aberdeenshire Council)

There was also a plea for the guidance to provide greater clarification for authorities on what to do in situations where records or background information are limited or not available to inform an assessment of whether an item should be included in the Common Good register or not. This is in order to prevent excess burden associated with challenges and potentially resource intensive research expectations.

Financial Information – There was a desire to see information included in the register on value, income from properties, rents, costs for maintenance and upkeep; timescales for reviews of rent and information on how derived funds will be spent. There was also a call in general for clearer financial accounts, although it is not clear if this was expected to be part of what should be included in a register.

A concern was raised around blanket publication of the value of assets (particularly moveable ones), suggesting that making it widely known that a high value item existed, with details of its location, could present a security risk with respect to the items themselves and anything else that may be stored at the same location but was not considered a Common Good. It was suggested this should be reflected in the guidance.

Attributes of assets – Where applicable, it was suggested by a number of respondents to include details of the boundaries and a grid reference or Ordinance Survey parcel number. The latter was considered more relevant as they were used on map editions closest to the date of the 1975 local government reorganisation. One respondent thought it would be good to represent the location of Common Good items on a map. Another suggested including a photograph of items. Other suggested additional information included; address or postal code; a physical plan of properties; information on size and condition, particularly any problems such as state of repair, anything missing etc; also whether the asset is alienable or inalienable and why ^[4] .

Historical Information – The desire here was to have information on any general history of the assets included; any history of rights; prior ownership with date of donation to public use or change of hands; and previous boundary changes. It was suggested that including historical content may help to prompt others who have knowledge on the asset in question to provide further information.

Use, including plans for any change or disposal – It was suggested that current or established use should be included in the register; also any plans to dispose of an asset or forward plans for those assets where a change of use is already planned. There should also be information on any restrictions, or conditions attached to gifted items (asset burdens), around what the asset can be used for and, in the case of public parks, any byelaws should be included.

Miscellaneous – Other suggested information to include that do not fall under any of the above broad headings include:

• All the information in the land register (if registered)
• Impact assessment on flora, fauna and local people of proposed change/sale
• Whether being rented or leased
• How the asset can be accessed, viewed or made available to the public
• Name of person responsible for asset register

2.15 Some suggestions were made as to the format and structure of the register. Again, this was in part to help reduce burden and the risk of authorities receiving lots of requests for further information. The suggestions included:

• Splitting registers by former burgh
• Using sub-headings for the different types of assets e.g. buildings/land, funds, paintings, robes, other items etc.
• Ensuring the register is clear and searchable and not just a random list