18/19, R. Miller, ‘Managing Common Good Land: Sustainable Development as The New Common Good’

Author: Rachael Miller

 

Introduction

 

Common good land is an ancient concept; however the passage of time has led not to reverence, but neglect, both in terms of the outdated legal framework within which it exists and the instances of the land being left to ruin.[1] That such a situation has occurred is surprising, given that this land exists across Scotland and is supposed to be used for the common good of local communities. The unfulfilled potential of this land to benefit local people arguably justifies reform, both of the management framework and our understanding of what ‘common good’ means today.

 

The Community Empowerment (Scotland) Act 2015 represents a step towards such reform – the Act provides for the production of management guidance,[2] although this has not yet been acted upon. This article argues that such guidance should be used as an opportunity to institute sustainable development as an integral part of common good land. After a brief explanation of sustainable development and common good land, it will be suggested that sustainable development is particularly relevant to common good land, before offering proposals for its implementation as the new standard for common good land. Ultimately, it is argued that doing so would both promote sustainability, and preserve the value of the land.

 

Introducing sustainable development

 

Sustainable development has been firmly established as an important environmental law principle[3] since the 1987 Brundtland Report, which defined it as development which ‘meets the needs of the present without compromising the ability of future generations to meet their own needs’.[4] In addition to intergenerational equity, sustainable development also represents intragenerational equity, which denotes addressing injustices between communities and nations.[5] Sustainable development balances environmental justice, economic growth and social welfare,[6] sometimes depicted as three interlocking circles[7] or three pillars.

 

This holistic approach is important – economic growth is often prioritised by governments; and environmental protection groups are increasingly able to put pressure on authorities to enact change.[8] Incorporating social justice into sustainable development, and thus ranking all three concerns equally, draws attention to the issues affecting those least able to pursue change. In particular, ethnic minorities typically suffer the worst impacts of environmental degradation. Sustainable development offers a greater scope for acknowledging and addressing this than the narrower focus of traditional green groups.[9] However, some environmentalists argue that this dilutes the effectiveness of sustainable development, with criticisms such as that focus ought to be on ecological conservation,[10]  and that sustainable development is insufficiently grounded in science.[11] But it can also be argued that sustainable development is effective for environmental protection; both in its ability to tackle harms caused by demands for growth,[12] and in being politically acceptable – it encompasses environmentalism as as inciple to counter eing perceainable development,, it otection in that it can be an effective principle to counter eing percepart of a politically and socially necessary movement, so avoids presenting as idealism, or a fringe concern.

 

The practical and political benefits of sustainable development have led to its widespread adoption. The United Nations in particular supports sustainable development,[13] culminating in the 2030 Agenda for Sustainable Development, which sets out seventeen goals (each with their own targets) for sustainability. The UN’s use of sustainable development has been claimed to afford it the status of  an ‘unassailable … ideal’.[14] At EU level, the principle is elevated to a constitutional objective,[15] accompanied by an EU Strategy for Sustainable Development.[16] The benefits of sustainable development are also recognised in the UK, with a 2010-2015 policy on sustainable development establishing sustainability indicators.[17] Sustainable development also appears frequently in legislation, due to wide acceptance of the term and its status as an EU aim.[18] In Scotland, the approach of the government is somewhat inconsistent. Their economic strategy refers to ‘sustainable economic growth’, which may reduce the focus on the environmental and social aspects of sustainable development.[19] Despite this, sustainable development is an important part of many policies,[20] not least the alignment of the national outcomes with Agenda 2030,[21] indicating that sustainable development is viewed as key to the overarching aims of the government.

 

Overall, the popularity of sustainable development across international and domestic legal systems shows why it is considered ‘the most significant concept … of our time’.[22] It acts as a vehicle for ambitions to improve the three sectors most important to the success of society, and protects future needs as well as current needs. This suggests it is both feasible and desirable to apply it to new areas of law and policy.

 

Introducing common good land

 

Common good land is an ancient type of property in Scotland. From the 12th century, burghs were founded by royal charter,[23] entailing the grant of lands by the Crown to the burgh, for the use of all its inhabitants. These grants became known by the purpose for which they were intended[24] – the common good – and were used for recreation and domestic purposes. After a period of corruption between the 15th and 18th centuries,[25] common good land was apparently forgotten, and with the local government reorganisations in 1975 and 1996, local authorities were generally unable to identify common good land.[26] However, reform in 2015[27] has brought common good back to the fore, requiring from June 2018 that local authorities assemble registers of their common good property.

 

Whether land is categorised as common good depends on its history. Common good land is land which was not acquired under statutory powers, or held under special trust.[28] Significantly, within this category, land which came to be owned by the burgh by the grant of the Crown, or was otherwise within public use due to dedication by the burgh or historic use from time immemorial, is inalienable[29] – it cannot be sold, or appropriated for another purpose, without court permission.[30] The case law on this issue demonstrates attitudes to common good land. In the 19th century, there was a spate of cases as burgh residents tried to prevent development, a motive evident in the judgments. For example, in Sanderson v Lees,[31] the court held that common good land which had always been used for recreation could not be feud for another purpose. The courts’ protection of the right to continue longstanding practices on common good land remains a feature of contemporary cases. In Portobello,[32] the council were held to have no power to appropriate land for the site of a new school, in part, because it had always been a park. However, permission may be granted where the original purpose of the land no longer exists.[33] The weight afforded to the traditional use of land can be compared with cases raising other concerns. For example, in East Lothian District Council v National Coal Board,[34] opposition to construction on common good land on the basis of the protection of wildlife was dismissed on economic grounds, and because of pre-existing decline of that type of habitat. This approach suggests the law around common good land has not kept pace with increasing concern for biodiversity and the environment; and similarly, the aforementioned decisions on the use of the land may also be at odds with the requirements of modern society.

 

Recent reforms, however, do not address contemporary use of common good land. Local authorities are under no obligation to maintain common good land to any particular standard,[35] and the newly published guidance[36] makes no comment on the management of land, an omission criticised by the Development Trusts Association Scotland.[37] The historic requirement that land is used for the common good of the people thus remains the only standard. There is therefore a need for modern guidance, and the remainder of this article will argue that this should incorporate sustainable development as the new standard for common good land.

 

Justifying sustainable development as part of common good

 

The benefits of sustainable development considered above could be delivered in the context of common good land. Although a globally applied principle, sustainable development is particularly effective locally. It is often within individual communities that both the consequences of environmental degradation are most felt, and successful intervention has the greatest effect.[38] Sustainability at a local level arguably has positive impacts on the community as a whole, in areas such as health and transport, and promotes neighbourhood cohesiveness.[39] Moreover, in its Agenda 21, the UN acknowledges that sustainable development is most likely to lead to meaningful change at a local level[40], noting that many reforms require the support of local authorities.[41] Similarly, the Sustainable Development Commission encouraged local authorities to take action by, inter alia, monitoring the status of local assets; raising awareness; and leading by example in their management of buildings.[42] Each of these could be achieved in relation to common good land. Further, effectiveness at local level ‘may influence policy and practice at higher levels’[43] – so implementing sustainable development in the management of common good land could have wider impacts on the sustainable use of land.

 

The benefits of sustainability are intensified in cities, where urbanisation poses huge challenges to the environment.[44] The predicted expansion of cities in the next few decades[45] further underlines the importance of protecting cities’ green spaces. Blewitt argues[46] that current development plans in cities are unduly focused on economic targets, but a renewed focus on environmental and social aspects would improve the quality of life of those living there. All of Scotland’s cities are former burghs; therefore, when considering how to make cities more sustainable, their common good land should not be overlooked.

 

A further reason to integrate sustainable development into common good land is the connection between property and sustainability. Management of land affects the social, economic and environmental interests of the community in which it is situated.[47] The traditional conception of landownership as a collection of rights, with a ‘detachment’ of corresponding responsibilities,[48] allows environmentally harmful activities to be within landowners’ rights.[49] Sustainability has been said to require a shift towards a ‘perception that all property in land comprises … a form of delegated responsibility for land as a community resource’.[50] One reform which could achieve this is a requirement to work towards sustainability as part of owning land.[51] This is feasible in the context of common good land for two reasons – firstly, the Scottish government are creating a framework for landownership which includes both rights and responsibilities, and is intended to ‘support sustainable economic development, protect and enhance the environment, [and] help achieve social justice …’.[52] Landownership therefore includes responsibilities in relation to each element of sustainable development. A requirement to use common good land to support sustainable development is therefore in line with ongoing reforms to clarify landowners’ responsibilities. Secondly, local authorities already have duties relating to sustainable development in their other roles, such as planning.[53] Furthermore, most land in Scotland under some form of public ownership benefits from sustainable development obligations – for example, national parks,[54] forests,[55] and land owned by communities.[56] Common good land, owned by local authorities is thus arguably an anomaly in not being subject to obligations for sustainable development.

 

A final argument for requiring common good land to be managed sustainably can be derived from the notion that ‘Land is an economic resource, but it is also more…”Who gets what?” is an important question in land use, but so is “what do we want?”’.[57] This question is particularly relevant to common good land, which has never been a purely economic commodity. The traditional answer to ‘what do we want?’ of common good land was ‘use for the common good of the burgh’. This raises the question of what ‘the common good’ means today. The recent report of the Land Reform Review Group considered that ‘central parts of the common good are environmental sustainability … economic success … and social justice’.[58] The three pillars of sustainable development can therefore be understood as a contemporary explanation of ‘the common good’.

 

Suggestions for implementation

 

If sustainable development is accepted as the desired standard for common good land, the next issue to arise is its implementation. The 2015 Act provides for guidance to be produced on, inter alia, the management of common good land.[59] The most recent guidance[60] does not deal with this. However, it is suggested that sustainable development could be introduced through management guidance. Sustainable development is commonly implemented through the use of specific goals accompanied by desired actions. For example, in relation to the Scottish uplands, a system of principles has been developed by Glass et al.[61] The principles (which include adapting management and ecosystem thinking), are paired with required actions (such as maintaining habitats and species, and engaging in planning). An instance of this approach in the urban context is the Sustainable Cities Index,[62] which uses the ‘basket’ goals of environmental impact, quality of life and future-proofing to assess the sustainability of cities. Within each basket are specific factors, like air quality, life expectancy, and recycling. An example of a far-reaching approach to sustainability which operates nationally exists in Wales, where public bodies must consider the Welsh well-being goals,[63] for which 46 indicators exist, covering categories such as healthy lifestyles, pollution, and neighbourhood safety. The goals and indicator style is used in Scotland too, with the ten Scottish national outcomes being linked to both their own and UN indicators.[64]

 

A similar system of aims and indicators could be implemented for common good land. It is suggested that, as the three pillars of sustainability should now represent what ‘the common good’ is, they could be used as general aims for the local authorities. These aims could be overarching principles to be considered when making decisions about common good land, with the indicators being actions which are required from the local authorities. Drawing on the indicators which are used in the frameworks mentioned above, suggested management guidance for common good land is set out in the following table.

Aims Indicators
Environmental Protection Þ    Promoting biodiversity, in particular through protecting and enhancing habitats

Þ    Reducing energy usage and choosing clean energy

Þ    Protecting ‘green spaces’

Social Justice Þ    Engaging communities in decision making/planning

Þ    Delivering community needs and projects

Þ    Encouraging healthy lifestyles

Þ    Encouraging participation in arts, culture and sport

Þ    Acknowledging the importance of the traditional use of the land; and ensuring this land remains available for future generations

Þ    Protecting public recreation spaces

Economic Growth Þ    Adding value to the community

Þ    Consuming resources and developing responsibly

Þ    Regenerating public spaces

Þ    Supporting local enterprise

 

It is suggested that the most effective form of implementation would be for the guidance to establish that local authorities have a duty to work towards these aims, rather than merely to take them into account.

 

Conclusion

 

Despite the criticisms which can be levied against sustainable development, it is argued that the principle deserves its prominent position in international and domestic policy. The links between sustainability, communities, and land, is a key reason for sustainable development to become an integral part of common good land. Until recently, the status of this land could fairly be described as neglected, and the new guidance does not address the issue of management, instead focusing (as has previous legislation) on alienating and appropriating common good land. Management guidance which incorporates sustainable development would not only deliver the benefits of sustainability; it could also reassert the value of common good land, and allow it to once again benefit communities.

 

* This article was written following a period of research funded by the Carnegie Trust vacation scholarship scheme. I am very grateful to the Trust for this funding. I am also extremely grateful to Dr Jill Robbie for supervising the research project, in particular for being so generous with her time, and for all of her advice and encouragement.

 

[1] See e.g. Grahame v Magistrates of Kirkcaldy (1879) 6 R. 1066; Motherwell District Council, petitioners 1988 GWD 15-666

[2] The Community Empowerment (Scotland) Act 2015, s.105(2).

[3] Green Development: Environment and Sustainability in the Third World, W.M.Adams, Routledge, 1990, p.58.

[4] Report of the World Commission on Environment and Development: Our Common Future, 1987, p.16.

[5] Environmental Law for Sustainability, Eds. B.J.Richardson and S.Wood, Hart Publishing, 2006, pp.14-5.

[6] e.g. the Well-Being of Future Generations (Wales) Act 2015, s.2.

[7] Understanding Sustainable Development, J.Blewitt, Routledge, Second Edition, 2015, p.250.

[8] See e.g. lobbying by Greenpeace leading to the ban on microbeads – https://www.greenpeace.org.uk/microbeads-we-won/.

[9] Sustainability as a Means of Improving Environmental Justice, J.C.Dernbach et al., 19 J. Envtl. & Sustainability L. 1, 2012, p.32.

[10] Bosselmann is a strong proponent of this viewpoint e.g. Ecological Justice and the Law, K.Bosselmann in Environmental Law for Sustainability, n.5

[11] Resilient Cities and Adaptive Law, C.A.Arnold, 50 Idaho L. Rev. 245, 2014, p.245.

[12] The problem of constant growth is expounded in The Limits to Growth: The 30 Year Update, Meadows et al., Earthscan, 2005.e

[13] Various UN Publications have prioritised sustainable development, such as Environmental Perspective to the Year 2020 and Beyond setting it as the principle goal.

[14] Managing Scotland’s Environment, C.Warren, Edinburgh University Press, 2009, p.379.

[15] Bosselmann, n.10, p.187.

[16] Available at http://ec.europa.eu/environment/sustainabledevelopment/strategy/index_en.htm.

[17] Available at https://www.gov.uk/government/publications/2010-to-2015-government-policy-sustainable-development/2010-to-2015-government-policy-sustainable-development; the current government does not have a fresh sustainable development policy.

[18] Why Legislate for Sustainable Development? An Examination of Sustainable Development Provisions in UK and Scottish Statutes, A.Ross, Journal of Environmental Law, 2007, p.37.

[19] The future Scotland wants – is it really all about sustainable economic growth?, A.Ross, Edinburgh Law Review 2015, pp.87-8.

[20] Such as the Scottish Forestry Strategy, the Regeneration Strategy, and the Climate Justice Fund.

[21] See http://nationalperformance.gov.scot/.

[22] Blewitt, n.7, p.9

[23] Customary Rights in Scots Law: Test Cases on Access to Land in the Nineteenth Century, A.L.Jarman, 28
J. Legal Hist. 207, 2007, p.209.

[24] Common Good Law, A.C.Ferguson, Avizandum Publishing, 2006.

[25] Green’s Encyclopaedia of the Law of Scotland, Volume III, ed. J.Chisholm, W. Green, 2nd edition, 1910, p.207.

[26] Common Good Land in Scotland: A Review and Critique, A. Wightman & J. Perman, Caledonia Centre for Social Development, Commonweal Working Paper No. 5., 2005, p.10.

[27] The Community Empowerment (Scotland) Act 2015, Part 8.

[28] Magistrates of Banff v Ruthin Castle Ltd. 1944 SC 36.

[29] Murray v Magistrates of Forfar (1893) 20 R. 908.

[30] The Local Government (Scotland) Act 1973, s.75.

[31] (1859) 22 D. 24.

[32] Portobello Park Action Group Association v City of Edinburgh Council [2012] CSIH 69.

[33] e.g. Cockenzie and Port Seton Community Council v East Lothian District Council 1997 S.L.T. 81, in which unused buildings were alienable as they no longer contributed to the ‘dignity of the burgh’.

[34] 1982 S.L.T. 460.

[35] Ferguson, n.24, p.48.

[36] Available at https://www.gov.scot/Publications/2018/07/9700/1.

[37] Analysis of consultation on draft guidance, p.20.

[38] Blewitt, n.7, p.99.

[39] Conflicting Perceptions of Neighbourhood, H.Barton in Sustainable Communities, ed. H.Barton, Earthscan Publications, 2000, p.10.

[40] See e.g. Does Sustainable Development Lead to Sustainability?, E.J.Yanarella and R.S.Levine, Futures, 1992, p.766ff.

[41] Agenda 21, para 28.1.

[42] Know your environmental limits: A local leaders’ guide, Sustainable Development Commission, 2011, p.22. NB. This Commission closed in 2011 (http://www.sd-commission.org.uk/).

[43] Blewitt, n.7, p.16.

[44] Determining a sustainable city model, S.Egger, Environmental Modelling and Software, 2006.

[45] Blewitt, n.7, p.180.

[46] Egger, n.44.

[47] The Land We Share: Private Property And The Common Good, E.T.Freyfogle, Island Press/Shearwater Books, 2003, p.16

[48] Property Rights and Sustainability: Can They Be Reconciled?, K.Bosselmann in Property Rights and Sustainability, eds. D.Grinlinton and P.Taylor, Martinus Nijhoff Publishers, 2011, p.25.

[49] Property Rights and Sustainability: Toward a New Vision of Property, P.Taylor and D.Grinlinton, in eds. D.Gromlinton and P.Taylor, n.48, p.7.

[50] Taylor and Grinlinton, n.49, p.16.

[51] Evolution, Adaption and Invention: Property Rights in Natural Resources in a Changing World, D.Grinlinton in eds. D.Gromlinton and P.Taylor, n.48, p.300.

[52]Scottish Land Rights and Responsibilities Statement, available at:

https://www.gov.scot/Publications/2017/09/7869/3.

[53] The Planning etc. (Scotland) Act 2006, Part 2.

[54] The National Parks (Scotland) Act 2000, s.1.

[55] The Forestry and Land Management (Scotland) Act 2018 s.2.

[56] The Land Reform (Scotland) Act 2003 s.38.

[57] The Structure of the Land Use Regulatory System in the United States, C.A.Arnold, 22 J. Land Use & Envtl. L. 441, 2007, p.484.

[58] The Land of Scotland and the Common Good, Report of the Land Reform Review Group, 2014, p.22, available at: http://www.gov.scot/Publications/2014/05/2852/downloads.

[59] The Community Empowerment (Scotland) Act 2015, s.105(2).

[60] Available at https://www.gov.scot/Publications/2018/07/9700.

[61] Lairds, Land and Sustainability: Scottish Perspectives on Upland Management, Eds. J. Glass et al., Edinburgh University Press, 2013, table 8.2

[62] Forum for the future, Sustainable Cities Index, 2010.

[63] The Well-Being Of Future Generations (Wales) Act 2015, ss. 4-5.

[64] Available at https://www.gov.scot/Publications/2018/07/9700.

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