Common Good assets in the wrong hands

by DOUGLAS SHEPHERD

Common Good funds will be established in Coldstream, Eyemouth and Melrose after research revealed that a collection of ten heritable assets, including the former Coldstream Guards museum, should not be in the ownership of Scottish Borders Council.

Councillors are expected to sanction the transfer of the ten buildings and open spaces to new common good funds which will be set up in each of the three former burghs. It means that for the first time since local government reform in 1975 each of the 12 towns in the Scottish Borders will have its own fund.

The investigation into the ownership of assets was launched following the introduction of the Scottish Government's Community Empowerment (Scotland) Act 2015.

According to a report outlining the research findings - it will be considered at a full council meeting next week - "The Council’s current Scheme of Administration does not provide for Sub Committees to administer Common Good Funds for the former Burghs of Coldstream, Eyemouth and Melrose, as at 1996 no assets were identified as being Common Good."

The report goes on to state: "The titles for all assets held on the Council’s balance sheet in respect of Coldstream, Eyemouth and Melrose were identified, located and researched. Additionally the minutes and accounts of the former burgh councils have been examined where questions arose as to the nature of the title of any assets. Assessments as to the nature of titles in each case have been made with regards to the legal presumptions from case law as to what is common good, such as following the presumption in favour of former burgh property being common good unless there is clear evidence to the contrary".

The investigation identified the following list of assets which should be transferred to the common good in Coldstream, Eyemouth and Melrose:

 Coldstream Museum, Coldstream

 Home Park, Coldstream

 Lees Mill, Coldstream

 Home Park Play Area, Coldstream

 Lees Mill Play Area, Coldstream

 Home Park Pavilion Site and Pitch, Coldstream

 Brownsbank Park, Eyemouth

 Eyemouth Fort, Eyemouth

 High Street toilet, Eyemouth

 Melrose Town Hall, Abbey Street, Melrose (currently used as Scout Hall)

And here are the findings in full which established that each asset had been wrongly consigned to council ownership:

(a) Coldstream Museum (which was the former HQ of Coldstream Guards) was bequeathed to the Burgh in 1953 to be kept “in a manner in keeping with the wishes of the testator, and with their historical connection and association with said Regiment”. The Burgh Council minutes show no indication of a statutory purpose for acquisition and accordingly it should be assumed that the property is held for the Common Good;

(b) Home Park (including the play area, pavilion site and pitch) was gifted by Earl of Home in 1922 to the Burgh “as representing the community of the said Burgh” for use as a public recreation ground. This dedication to public use is evidence that the property forms part of the Common Good;

(c) Lees Mill (and play area) was acquired by Burgh in 1933 for the price of £150. Whilst there was no gift or dedication to public use, there was no statutory purpose stated or evidenced and, accordingly, the subsequent use of the property by the Burgh as a public recreation ground is sufficient to imply that the property forms part of the Common Good.

The research in relation to Eyemouth revealed that

(a) Brownsbank Park was gifted to the Burgh in 1962 for use as a public park only. It is this dedication to public use that determines that the asset should properly be classified as Common Good.

(b) Eyemouth Fort was gifted to the Burgh in 1974 by Mrs Home Robertson “for the benefit and enjoyment of the people of Eyemouth”. This dedication to public use determines that the asset should properly be classified as Common Good. The access to the Fort was separately conveyed and does not form part of the common good.

(c) The ground on which the High Street toilet has been constructed was gifted to the Burgh in 1971, with no purpose of acquisition stated. With no purpose clear from either the title deeds or the Burgh Council Minutes, it should be assumed that the property is owned by the Common Good.

The research in relation to Melrose revealed that Melrose Town Hall (the subjects on Abbey Street currently known as the Scout Hall) was gifted to the Burgh of Melrose in 1896. The title deeds contain a typical common good dedication, stating that the subjects were to be used "for the public uses thereof in all time coming...for behoof of the whole body and Community of said Burgh". Melrose Town Hall should therefore be classified as a common good asset.

Most of the assets have been given a "nil" valuation by the council. But the Coldstream museum has a price tag of £225,111 while the plot on which the Eyemouth public toilet is situated is valued at £47,778. Meanwhile Melrose Town Hall is worth £34,812.

The report prepared for councillors explains: "The Council’s primary aim with regard to this review is to have asset registers which accurately reflect the ownership of property. If the Council fails to amend the asset registers to take account of the findings of the research it will be in breach of the accounts rules and its obligations under Part 8 of the Community Empowerment (Scotland) Act 2015 which may result in the Council being subject to adverse public comments and legal challenge. The risk is mitigated by considering this report and the necessary changes to the Asset registers being carried out."