2013-01-01

Document Cited authorities (18) Cited in Related
AuthorJaneen Carruthers,Fiona Leverick,Malcolm M Combe,Charlie Irvine,Paul McClelland,James Chalmers,Elizabeth Crawford,Laura Macgregor
DOI10.3366/elr.2013.0139
Pages63-96
Published date01 January 2013
Date01 January 2013
<p><italic>Ultra vires</italic>. Those two Latin words cause more than a little concern for anyone dealing with a legal entity whose existence and powers derive from statute. They may also scupper any grand plans of the officers of such a legal entity. An attempted dealing of a legal person straying beyond the realms of its powers, and therefore acting <italic>ultra vires</italic>, is ripe to leave purported counterparties in an unhappy place. In that unhappy place they will find no consolation from the fact that they only got there because of a highly remote or idiosyncratic constellation of facts: although the gap may be but an inch wide, it is a mile deep.</p> <p>Statute may provide reassurance in some contexts, such as the declaration in <span class="vid_spn">section 39 of the Companies Act 2006</span> that an act of a company “shall not be called into question on the ground of lack of capacity by reason of anything in the company's constitution”; or the certification route that exists in the <a href="https://vlex.co.uk/vid/local-government-contracts-act-808177325">Local Government (Contracts) Act 1997</a>. However, these situational exceptions will not assist beyond their narrow confines. No such reassurance was available in the case of <italic>Portobello Park Action Group Association v The City of Edinburgh Council</italic>,<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p><a href="https://vlex.co.uk/vid/portobello-park-action-group-803183841">[2012] CSIH 69</a>; 2012 GWD 30–622 (hereafter “<italic>Portobello</italic>”).</p></fn> where a local authority's decision to appropriate part of its (inalienable) common good land at Portobello Park in Edinburgh to build a new school was challenged by a group of local residents. In the Inner House the residents’ association was successful in its reclaiming motion from an earlier decision of the Outer House,<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p><italic>Portobello Park Action Group Association v City of Edinburgh Council</italic> <a href="https://vlex.co.uk/vid/portobello-park-action-group-802393413">[2012] CSOH 38</a>, <a href="https://vlex.co.uk/vid/portobello-park-action-group-802393413">2012 SLT 944</a>.</p></fn> leading to a reduction of the appropriation as <italic>ultra vires</italic>. As shall be seen below, this did indeed involve an idiosyncratic constellation of facts, hinging on the treatment of inalienable common good land, but the effect is to leave the scheme predicated on the appropriation trapped in a narrow but rather deep gap. How did this come to pass?</p> COMMON GOOD LAND

Which (predominantly immoveable) assets are comprised within the common good?3

The term common good land is slightly broad-brush, but it is normally as apposite as the wider term of common good assets. Magistrates of Dumbarton v University of Edinburgh 1909 1 SLT 51 is identified by Ferguson as the only reported case involving a common good corporeal moveable. See A C Ferguson, Common Good Law (2006) para 4.1.

To explain that in a complete manner would render this a very long article indeed,4

Although not referred to in the judgment, the most important contemporary legal source on the common good in Scotland is Ferguson, Common Good Land (n 3). See also A Ferguson “Common good land” 2000 SLT (News) 7; A Wightman, The Poor Had No Lawyers: Who Owns Scotland (And How They Got It) (2011) ch 23; and A Wightman and J Perman, Common Good Land in Scotland: A Review and Critique (2005), available at http://www.andywightman.com/docs/commongood_v3.pdf.

 but ironically the sub-category of inalienable common good land seems somewhat easier to define. For present purposes it can be noted that inalienable common good assets comprise certain things within the remit of the local authorities established by the Local Government (Scotland) Act 1973 that (a) were granted to them (or a predecessor burgh) according to certain terms; (b) by the actions of the local authority in appropriating the thing for public uses; or (c) have been used and enjoyed by the public from time immemorial.5

Murray v Magistrates of Forfar 1893 1 SLT 105. The curious approach of defining the narrower category then the broader category is adopted from Ferguson. On the broader term, see Ferguson, Common Good Land (n 3) ch 5, and Wightman and Perman, Common Good Land (n 4) at 12, with reference to the locus classicus of Magistrates of Banff v Ruthin Castle 1944 SC 36, noting that the most consistent interpretation is that all burgh property falls into the common good except for property acquired under a specific statutory provision for that purpose or property acquired subject to a specific non-common good trust.

Turning to the incident case, Portobello Park was acquired by predecessors of the City of Edinburgh Council (“the Council”) in 1898, with the terms of that grant being such as to render the land's status as inalienable common good land non-contentious in the litigation.6

Andy Wightman has suggested in his blog that this should have been a point of contention, see “Is Portobello Park common good land?”, 23 Sep 2012, available at http://www.andywightm...

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