UPDATE: Common Good - Barrhead High School and Cowan Park

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Further to my post about this in September - when I said that I didn't think that Cowan Park was common good meaning that there was therefore no reason why East Renfrewshire Council couldn't build a new Barrhead High School on it - I subsequently sent the following Freedom of Information request to ERC:-

"I am concerned that an error has been made by the Council in assuming that Cowan Park, the site of the proposed new Barrhead High School, is common good land.

In 2004, ERC reported to an enquiry by Andy Wightman and James Perman that it had no common good (CG) and it seems that Friends of Cowan Park were told as recently as October 2012 by Head of Planning Iain Maclean that there was no CG in E Renfrewshire.

Therefore, this FOI is to request all correspondence, e-mails and/or notes, records or minutes of meetings, conversations etc. which led to ERC changing its position and concluding that Cowan Park was CG after all.

I realise that legal advice may be immune from FOI but (without prejudice to the generality of the previous sentence) I want to know who asked what and when and from whom in relation to whether Cowan Park is CG and who replied to any such questions and when.

I also want to know (also without prejudice as above) what, if any enquiries were made to the Council archivist (or other person) to search the minutes/records of Barrhead Town Council at the time of acquisition of the original Cowan Park in 1910 to see what light contemporary record may have shed on the legal status of the park."

In reply to this, ERC said:-

"Following on from the Portobello decision in [September] 2012, and with that decision not being appealed, the Council reconsidered this issue from 2013. 

Our Legal Services provided internal advice on this matter in June 2013. The same month the Council approached Shepherd and Wedderburn for their opinion. They instructed Counsel [subsequently confirmed to be James Findlay] and provided an opinion in July 2013. 

The Council had also asked for further expert opinion and received this from Professor Rennie in October 2013"

Unsurprisingly (and not unreasonably), ERC were not prepared to waive immunity and reveal these various opinions. But the fact they had one from as august a lawyer as Professor Robert Rennie does tend to make me look a bit of a lone voice in the wilderness that Cowan Park isn't common good. That said, it's important to know what the question the lawyers were asked was. For example, was it "Is Cowan Park common good?" or was it "Cowan Park is common good, what do we do now?" If it was the latter, then the question of whether the park is CG is still open.

As to enquiries made in the Council's archives, three were revealed:-

The first is intriguing - apparently no record of a Barrhead common good fund discovered in post 1970 records. The second two were more disappointing, though: a member of the public had apparently found reference to a CG fund in 1967 and something relating to it was retrieved and scanned in response to a request from the Council's legal department in November 2013. So it was beginning to look as if, contrary to my theory (that a statutory burgh like Barrhead, as a mere "creature of statute", can't have such an essentially common law thing as a common good fund), there might have been a CG fund after all.

Now you can't use FOI to force a Council to supply you with material from its publicly accessible archives. I can't afford to commission research in ERC's archives and, as I live in Portugal, I can't go along to look in them myself. However, their archivist, Craig Geddes, was kind enough to copy to me free of charge some material he had already scanned and had on file in response to these earlier enquiries. These were very revealing.

Firstly, there were copies (above) of Barrhead Burgh Council minutes relating to the 1968/69 sale of 8.14 acres from Cowan Park to Renfrew County Council for the current school and the purchase by BBC of 13.2 acres from neighbouring Dubbs Farm to add back to the park in compensation. There was no mention of common good in either transaction. Neither, it must be admitted, was there any mention of the purchase being made under the Public Parks (Scotland) Act 1878 as ERC stated in its recent petition to the Court of Session for authority to dispose of the land for the new school. [1]

Secondly, was a copy of the index to Barrhead Burgh Council's minutes for 1909-10 covering the period of the original acquisition of the park under the Cowan bequest (below). Observe the absence of reference to common good under the heading of "Cowan Park" or indeed anywhere under "Cl-" to "Cr-" in that year's alphabetical index:-

    
But perhaps most revealing of all was the material retrieved and scanned in response to ERC legal department's request of 28 November 2013. These were copies of the front pages of the Abstract of the Accounts of BBC from sample years 1965 and 1975. I'm only reproducing (below) 1965 because the scan is a bit clearer but 1975 is identical:-

Note how this appears to show that there was a common good account but nothing in it. However, my guess is that this format of abstract accounts was a pro forma common to all Scottish pre-1975 burghs, including common law ones which indubitably did have CG accounts. So Barrhead, not having one, inserted "NIL" under this heading as it might have inserted "Not applicable". And I would also guess that what the member of the public discovered in the second of the three enquiries in the archives was a similar "NIL" entry in 1967.

Now, I readily admit that this is all a huge pile of guesswork based on the slenderest of evidence. But the fact remains that there has not yet been a knockout punch that Barrhead did have a common good account: just because it was a burgh which existed before 1975 doesn't necessarily mean it had to have one. Or, if it did, that Cowan Park was part of it (particularly considering that another scan from the burgh accounts I was sent shows that Barrhead appears to have had a separate public parks account). There is, obviously, further more methodical research to be undertaken.

I'll take the opportunity to repeat a point made in my previous post, which is that, in ERC's petition to the Court of Session for authority to dispose of part of Cowan Park for the new school, it was explicitly stated that the 13.2 acres bought from Dubbs Farm to replace the 8.14 acres sold to Renfrew CC for the current school had been bought under the Public Parks (Scotland) Act 1878. Yet the petition also claimed these 13.2 acres to be common good. But if it was bought under the Public Parks Act, then, per the Wark dictum in the case of Magistrates of Banff v Ruthin Castle, it cannot be CG. This is evidence of muddled thinking about CG on the part of ERC and/or its lawyers on at least one aspect of the case and one can't help wondering if there might also be other mistakes being made. 

    
Meanwhile, Barrhead News has reported that ERC's case is back in the Court of Session on 20 November. This is a hearing to plan the future progress of the case rather than the actual hearing of the appeal against Lord Tyre's decision in August. (Which was that ERC's proposals did not amount to a disposal of the site of the new school and therefore he had no power to authorise them. Note also that his name is Lord Tyre - not Tyne - and he did not rule in August that Cowan Park is common good: ERC went into court taking that as read (wrongly IMO) and asking him to rule on that footing.) I know nothing about court procedure but I wonder if it's not too late to use the opportunity of next week's hearing to convince the court to allow ERC to amend its pleadings so as to seek a declarator (a court order making a declaration of legal status) that Cowan Park is not CG (and, only if it is, an appeal thereafter against Lord Tyre's ruling in August.)

Footnote

[1] The minute did however confirm that the sale of 8.14 ac. to RCC was to be effected by way of a "conveyance" (as opposed to the more usual "disposition") which confirms my suspicion in regard to how the condition in the original 1910 acquisition restricting use of the land to a public park (i.e. not a school) was circumvented.