Common Good
- A Quick Guide

Version 5

by Andy Wightman

mail@andywightman.com

Published by Caledonia Centre for Social Development

July 2009 PDF version

Your Common Good

Community ownership is nothing new and it is not restricted to a
few crofting communities in the far north west of Scotland. In your
community you most probably have property that already belongs
to you, the people. One important element of this is Common
Good land and property, much of which was granted to the
Burghs of Scotland in their original charters and gifted to the
people in subsequent years.

This property represents a potential source of wealth and
investment for the public good of your community. In recent
years, however, a worrying trend of disappearing assets, shoddy
accounting, poor record-keeping and lack of awareness has
become evident.

Properly accounted for and properly managed, Scotland’s
Common Good can be used to revitalise communities and return
to them the autonomy and initiative after years of municipal
maladministration.

Read this Quick Guide and join the campaign to identify,
document and restore your common heritage.

What is the Common Good?

One answer to this question is contained in Green’s Encyclopædia of
1910;

The common good of a burgh consists of the entire property of the
burgh which is held by the corporation for behoof of the community.
Green’s Encyclopædia of the Law of Scotland Vol III, edited by John Chisholm.
William Green and Sons, 1910

More recently, in a Scottish Parliamentary answer, a more nuanced
definition was provided;

S2W-29685 – Campbell Martin (West of Scotland) (Ind) (Date Lodged
8 November 2006) : To ask the Scottish Executive what constitutes a
common good asset and how such assets differ from property or
land owned by a local authority.

Answered by Mr Tom McCabe (17 November 2006): The Common
Good originated as revenues from properties belonging to the early
Burghs of Scotland. The Common Good, as these revenues were
then termed, is of great antiquity and there is no equivalent in English
local government although the term remains current in Scotland.
Essentially, the Common Good denoted all property of a Burgh not
acquired under statutory powers or held under special trusts.

This latter definition reflects the case law definition provided by Lord
Wark in the case of The Provost, Magistrates and Councillors of the
Royal Burgh of Banff and Others vs. Ruthin Castle Limited, 1943.
Note that property in this context should be read to mean both
heritable and moveable property.
1

Map showing land acquired by Edinburgh Common Good Fund
to construct the New Town (yellow), Common Good land of
Calton Hill (brown) and Royal Burgh (red hatch).

Origins

Common Good was a phrase coined as early as the 15th century to
describe the purposes for which Burghs held assets and earned
revenues under the terms of their Charters.

Common Good Funds emerged in the early development of burghs
long before there was any statutory framework for local government.
It was made clear in the Common Good Act of 1491 that the
revenues from burgh property and various taxes and levies was to be
used for the “common good of the town”. Up until the 19th century,
when local government was more clearly organised and given
specific statutory functions together with the statutory means to raise
taxes, all burgh property and revenue was deemed common good.
As statutes covering public health, police, housing, sanitation and
other such matters emerged, local government grew in scale and
raised a correspondingly greater proportion of its income from rates.
Property acquired using statutory powers contained in specific Acts
(for example, the Edinburgh Improvement Acts, Planning Acts and
Housing Acts) did not form part of the common good. Thus over time
as local government expanded, the Common Good Fund (which
consisted of a range of moveable and heritable assets of the burgh),
became a smaller and smaller element in the total finances of the
burgh.

The 196 burghs specified in the Local Government (Scotland) Act
1947 and which survived until 1975 when their Town Councils were
wound up, represent the most recent and well documented examples
of burghs. Specific provisions were made in the Local Government
(Scotland) Acts of 1973 and 1994 for these burghs’ Common Good
Funds to be transferred to District Councils and, later, Scotland’s
Unitary Authorities.

There is, however, other common good property owned by burghs
which never had Town Councils and land owned by former Parish
Councils and County Councils purchased or gifted for the benefit of a
defined group of people (in a village or town). Such other classes,
however, are far less clearly defined in either statute of case law.
This Quick Guide concentrates on the 196 burghs which had Town
Councils up until 1975.
2

Map showing extent of Irvine?s Common Good Land in
1820 (from The History of Irvine, Royal Burgh and New
Town by John Strawhorn).

Who owns the assets of the Common Good Fund?

Legally, all the property of the Fund is owned by the local authority. In
the case of land and buildings (heritable property), legal title is held
by the authority and in the case of moveable assets (heirlooms,
chains and robes of office, furnishings, cash and securities etc.) it is
also the property of the authority. However, authorities are
constrained in various ways in how they administer such property
and in how they are permitted to dispose of it since it is held on
behalf of the inhabitants of the burgh. In this sense it belongs to
those inhabitants in the same way as property legally owned by a
Trust belongs to the beneficiaries or a bank account held by a parent
on behalf of a child belongs to the child.

How do I find out about the Common Good Fund?

If you live in any of the 196 burghs listed in Annex 1, your local
authority should publish a set of Annual Accounts and should provide
a list of assets owned by the Fund. Unfortunately, Councils vary
widely in their ability to do this with any accuracy. Read Common
Good Land in Scotland. A Review and Critique for evidence of this
(see Further Information on page 6).

This means that if you wish to identify common good assets or enter
into any discussions about how they are being used or the finances
administered, you may have to do some research of your own. The
following steps are designed to act as a guide for doing this.

THE BOTTOM LINE…..is that you are looking for property which,
on 15 May 1975,

• was owned by the Town Council (may be in name of
Magistrates, Corporation etc.)
• had been acquired by them either by gift or acquisition
• had not been acquired using statutory powers (the title deeds
will usually narrate if in fact it was).
• was not held by a constituted Trust (again the title deeds will
reveal if this is the case)

All such property should have continued to be held in the
Common Good Fund. If disposed of since 1975, the proper legal
process should have been followed and financial receipts should
have been credited to the Common Good Fund.

Furthermore any property acquired at any time and financed
using the Common Good Fund forms part of the Common Good.
For example, the land for the New Town of Edinburgh was
acquired with money from the Common Good Fund and thus all
land not subsequently disposed of remains part of the Common
Good.

1. Begin with what is admitted by the local authority. This may be
nothing at all, a partial or incomplete list, or it may be quite a
long list. It is useful to go back to the Annual Report and
Accounts of the District Council of 1975 onwards since some
Common Good property has “gone missing” since then.

2. Consult local history sources including books, individuals with
knowledge (for example those who may have worked for the
Town Council before 1975), local library collections and the
works of local history societies.

3. Consult the burgh records. Many of these are held by local
authority archive services. You can often find out about them on
the Council’s website or you can search a wide range of
archival collections at www.nra.nationalarchives.gov.uk/nra. The
National Archives of Scotland (www.nas.gov.uk) also hold some
burgh records.

4. To identify the full legal history and status of specific properties,
you will need to consult the Register of Sasines, the Land
Register and the Burgh Registers (most of the latter were

discontinued around 1930). Searches here will allow you to
locate the title deeds – the holy grail of property – and to find out
exactly how and on what terms property was acquired (see
example in Annex 2 about Laighills Park, Dunblane). The
Registers of Scotland hold the Sasines and Land Registers
(www.ros.gov.uk).

A full account of how to do this cannot be provided in this short
guide but the author can provide professional assistance in this.
Briefly, what one wants to do is find out as much as one can
before consulting the Register of Sasines in terms of who
owned land, who sold it, when, and by what name the property
was known. If this is reasonably well known, you can consult
the Minute Books in the National Archives of Scotland. If less is
known about the property, it will be useful to obtain a copy of
the Search Sheet for the burgh (this is a very useful investment
in any event). It contains a sequential list of all property
transactions of the Town Council.

Remember, that the Common Good Fund consists of moveable
assets as well as heritable assets. Tracing the fate of moveable
assets is a little bit more tricky. Probably the best place to
concentrate is the records of the Town Council.

Remember also that it is important to trace the fate of such assets
and the fate of the finances of the Common Good Fund since 1975
and this can best be done by consulting the Annual Reports of (first)
the District Council from 1975 to 1996 and (second) of the current
Local Authority since 1996. Is it clear that all assets are accounted
for in the Accounts? Are there unexplained discrepancies from year
to year?

Finally, the results of this research (which can be carried out by a
team of people) should be compiled in a dossier of evidence. This
can be shared with others in the community through a display or
exhibition, articles in the local press, or published on the internet. It
should be sent to your Local Authority to seek their view on its
validity.

Ultimately, you should be seeking to
assert and recover the assets and
value of your Common Good Fund.
5

Useful Contacts

National Archives of Scotland
HM General Register House
2 Princes Street
Edinburgh
EH1 3YY
tel: 0131 535 1314
web: www.nas.gov.uk

………………………………………

National Register of Archives

www.nationalarchives.gov.uk/nra

Registers of Scotland
Erskine House
68 Queen Street
Edinburgh
EH2 4NF
tel: 0845 607 0161

9 George Square
Glasgow
G2 1DY
tel: 0845 607 0164

web: www.ros.gov.uk

Further Information
For further information, see www.scottishcommons.org/commongood

Common Good Land, A Review and Critique by Andy Wightmand and James Perman is available at the above website to download.

Community Land Rights. A Citizen’s Guide is a much fuller and detailed guide to identifying, documenting and researching a range of community
land rights. See www.andywightman.com/shop for further details.
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Brief Case Study of Laighills Park, Dunblane

Stirling Council do not admit the existence of a Common Good Fund
for Dunblane in the Annual Accounts for 2005-06. However,
Dunblane is a Burgh and had a Town Council up until 1975. It is
extremely unlikely that there is no property defined as Common
Good in Dunblane. The following story demonstrates that this is
indeed the case.

In early 2006, I met a resident of Dunblane and we got talking about
the Common Good. His view was that the Laighills (a large area of
parkland to the north west of Dunblane) belonged to the town. We
decided to make some initial enquiries. To begin with, he uncovered
a local history volume which reported that,

The Laighills were the site of the town’s
first golf course, laid out as a nine hole
course in 1892, and in use until the
present course was built in 1923. The club
house was at the foot of Laighill Loan.

In 1909 Mr RH Martin of New York, a native
of Dunblane, bought the Laighills for
£1,000 from Cromlix Eatate, and presented
them as a gift to the people of Dunblane.
There had been earlier plans to build
houses here.

This extract demonstrated the usefulness of local history sources
since it provided a name (Mr RH Martin), a year (1909) and a
property (Cromlix Estate) that could be used to conduct further
research in the Register of Sasines.

I then located the Search Sheet for the Burgh of Dunblane in the
Register of Sasines (Search Sheet number 2122 in the County of
Perthshire). On page 3 of the Search Sheet there is a Minute (a short
extract of the full deed) referring to the subjects of “Laighhills”, part of
the “lands and estate of Cromlix” accompanied by a detailed
description of the boundaries. The Minute begins thus,

Then at the end of the Minute there is real burden narrated to the
effect that the land shall be used as a Public Park and Recreation
Ground, viz.

Following this is the Minute of the disposition or sale, from Arthur
William Henry Hay Drummond of Cromlix (with consent of various
third parties with an interest in the property) to Provost, Magistrates
and Councillors of the Burgh of Dunblane. It begins thus,
9

PICTURE

This Minute contains the evidence we were looking for, namely that
the land was disponed to the Provost, Magistrates and Councillors of
the Burgh of Dunblane.

So it seemed that we had located the relevant deed. Our next step
was to go to the National Archives of Scotland and obtain a copy of
the full title deed (the extracts above are from the Minute or precis
contained in the Search Sheet). This would hopefully explain what
had happened to our friend Mr Martin who did not appear to be a
party to the sale.

In the National Archives of Scotland, we found the deed which
begins,

Disposition by Arthur William Hay
Drummond and others to The Provost,
Magistrates and Councillors of the Burgh of
Dunblane.

The Deed is 28 pages long deed and the first 12 pages are
concerned with outlining the legal and financial positions of the seller,
Trustees and others. The juicy bit (the dispositive clause) is at the
foot of the reverse of Folio 44 (pages are numbered as physical
pages with each page having a front and a reverse – a recto and a
verso).

“In consideration of the sum of Nine
hundred and forty pounds Sterling
instantly paid to me the said Honourable
Arthur William Henry Hay Drummond by
the Provost Magistrates and Councillors of
the Burgh of Dunblane said sum being
provided to the latter by Robert Hay Martin
Asbestos Mine Owner New York United
States of America a native of Dunblane as a
gift for the purpose of enabling the said
Provost Magistrates and Councillors to
acquire the said lands and others for the
public behoof as the price of the said lands
and others and of……”

This provided the explanation we were looking for. Robert Hay Martin
actually provided a gift of money to the Burgh to acquire the land.

Then the burdens are narrated beginning at the very foot of Folio 47
front,

“….and under the special condition that the
said lands hereby disponed shall be used
as a Public Park and Recreation Ground for
10

the public behoof and shall not be used for
building dwelling houses thereon or for
any other purposes than of a Public Park
and Recreation Ground.”

Thus the history book was a bit inaccurate since Martin gifted not the
land but the money to acquire the land. Nevertheless it was clear that
Laighill is unambiguously part of the Common Good of Dunblane.
Our investigations ended there.

POSTSCRIPT

The story can be continued.

Among the next tasks still to be undertaken are to check whether
there have been any breaches of these conditions since the time of
the original acquisition and to check that the proceeds of any land
subsequently sold were credited to the Common Good Fund. Given
that Stirling Council do not admit to a Common Good Fund for
Dunblane, there is still some further work to do!

This kind of research needs to be replicated (if not already done) in
burghs across Scotland.

Andy Wightman
Edinburgh
July 2009
11

http://www.scottishcommons.org/