A recent case has provided additional guidance for Scottish local authorities in relation to common good land and the duty to secure best value in disposing of land.

Facts of the Case

  • Angus Council were owners of a leisure centre constructed on common good land.The leisure centre itself was not common good property.
  • At a meeting of the Council’s Policy and Resources Committee on 1 May 2018, it was resolved that the leisure centre was surplus to requirements and should be demolished.
  • Following the meeting, a developer expressed an interest in the property and the Council permitted various interested parties to inspect the property with a view to continued use. Parties were invited to submit offers prior to noon on 30 January 2019.
  • At a meeting of full council on 7 February 2019 it was determined that the leisure centre should be demolished.

An action for judicial review of this decision was raised which considered amongst other matters, the application of section 104 of the Community Empowerment (Scotland) Act 2015 and section 74 of the Local Government (Scotland) Act 1973.

Community Empowerment (Scotland) Act 2015

Section 104 of the Community Empowerment (Scotland) Act 2015 requires that before taking any decision to dispose of, or change the use of common good property, a local authority must publish details about the proposal and notify certain bodies and invite those bodies to make representations in respect of the proposal.

Lady Carmichael determined that the Council’s decision to demolish the leisure centre was not a decision to dispose of common good property. The common good property in this case was the land, not the building. Demolition of the building did not result in disposal of the land. There was no change in use of the common good land – it was used for leisure purposes prior to demolition and it would continue to be used for leisure purposes after demolition. Whether section 104 applies will be a mixed question of law and fact.

Local Government (Scotland) Act 1973

The general principle of section 74 of the 1973 Act is that a local authority should not dispose of land for less than best value.

In this particular case, it was determined that the Council had not breached its duty under section 74 because it had not disposed of land. Rather, a building was being demolished and the Council was to retain ownership of the land.

Petition of Mark Guild & Another for Judicial Review [2020] ScotCS CSOH 16 (13 February 2020).