A recent decision of the Inner House highlights the steps councils must take to stay in line with community empowerment legislation, in particular as it relates to common good property.
Factual background
The petitioners brought a challenge by judicial review against Angus Council's decision to demolish Lochside Leisure Centre in Forfar Country Park, claiming that it contravened section 104 of the Community Empowerment (Scotland) Act 2015 (the Act). This provision concerns "common good property": property gifted to a Burgh (an old form of local authority) and used by the general public for a specific purpose. It states that where a local authority is considering "disposing" or changing the use of any common good property, they must publish details about the proposed disposal.
The council's position was that section 104 of the Act did not apply. Firstly, it argued that while the ground on which it was built was part of the common good, the leisure centre itself was not. It said that since its construction, the leisure centre had been paying a notional rent to the common good fund for the building erected on it; therefore, it merely rented from the common good rather than being part of it. Furthermore, the council said that the demolition would not constitute a change of use, as the plan was to convert the land back into parkland to also be used for leisure.
The decision
The court decided by a majority of two to one in favour of the petitioners and reversed the decision of the council to demolish the leisure centre. Lord Menzies (with whom the Lord President agreed) based his judgement on the answers to three questions:
- Were the buildings held by the council as common good property?
- Does demolishing the buildings fall within the term "disposal"?
- Does demolishing the buildings and returning the land to open parkland amount to a 'change of use'?
To the first question Lord Menzies answered yes. He decided that as there was no dispute that the land on which the leisure centre was built was part of the common good, it followed that the leisure centre was also part of the common good. The accounting procedures of the council, where the leisure centre paid 'rent' to the common good fund, made no difference. Regardless of whether the council had intended to donate the buildings to the common good, that is what had occurred.
To the second question, the answer was also yes. The purpose of the Act being "involving the community and making such decisions more transparent by requiring publication and notification"; Lord Menzies considered it was important that the community would no longer have access to the facilities offered by the leisure centre. This ties in with his answer to the third question, which was also yes. He was unconvinced by the council's argument that the land would still be used for leisure purposes. Lord Menzies held that indoor and outdoor leisure were too different for the purposes of the Act, he further commented on the views of community saying, "most of the inhabitants of Forfar would take the same view".
What does this judgement mean?
This recent judgement highlights the purpose behind the community empowerment legislation as being "transparency, and encouragement of community involvement". Councils will take note that both the land and buildings were considered to form a part of the common good, regardless of the accounting practices adopted by the council. Furthermore, because the proposed demolition of the leisure centre constituted a 'disposal' the Council should have published details of this and invited representations from the relevant community councils and any community body with an interest in the property.
For more information on the law relating to community empowerment and the common good in Scotland, please contact Jackie McGuire, Johanna Boyd or your usual Brodies contact.
