The Inner House confirmed the importance of inalienable common good land and the force of the restrictions applying to it when allowing Portobello Park Action Group Association’s appeal from the decision of Lady Dorrian, who on 7th March 2012 had sustained Edinburgh Council’s plea of mora and dismissed the petition, whilst at the same time commenting adversely on the merits of the Association’s case. The Association, represented by Roy Martin QC and James Findlay both from Terra Firma, succeeded in persuading the Court that the Lord Ordinary erred in her approach to mora and emphatically found in the Association’s favour on the merits.
The case is of importance in two respects. As to mora, the decision of the Court is of interest on the issue of when time starts to run in Judicial Review cases generally and is potentially of wide application. The Inner House has expressly adopted the reasoning of English House of Lords in Burkett – including that Judicial Review should be a remedy of last resort – but has left open whether or not the approach of the Inner House in Simson remains good law in circumstances where it cannot be distinguished – an issue which the Inner House may return to in the forthcoming appeal of Bova later this year. Secondly, as to the merits, the Court has made it clear that there is no power in a Council to appropriate inalienable common good land from one purpose to another purpose and, in particular, no such power lies either under the Local Government (Scotland) Act 1973 or the Local Government in Scotland Act 2003. The law relating to common good land is rooted in decisions of some age but the Inner House has confirmed that they have not lost their force. Its approach to the 2003 Act is potentially also of wider impact – indicating that the general well-being power does not entitle an authority to override other obligations such contractual, trust or title obligations or act to the detriment of established third party rights.
The result will be a delay in building of a new school in the particular case but the greater importance is that it confirms the rights of residents to protect inalienable common good land and the continued protection of such land.
