The Court of Session has issued a landmark judgment which will change how local authorities categorise and make decisions regarding common good land/property.

Common Good Land

The origins of common good land date back to the middle ages when villagers would share spaces jointly owned by the community to graze cattle or dry clothes. However, as time passed, many important public buildings, such as town halls, leisure centres and other buildings of note, came to be built on common good land. That land was formerly held for the local community by the former local burghs councils and latterly by Scottish local authorities. The local authorities must hold the land in a distinct way which separates it from all other land they own. Because of the history of common good land, and its importance to the local community, the courts and the legislature have put in place obstacles and safeguards to prevent local authorities disposing of it without court authority. That has now been supplemented by section 104 of the Community Empowerment Scotland Act 2015 (‘the 2015 Act’) which requires a local authority to consult stakeholders, including the public, whenever it is disposing of or changing the use of common good land.

The Facts

In a petition raised against Angus Council’s decision to demolish a leisure centre in Forfar, the Inner House of the Court of Session (the appeal court) has ruled that common good land includes any building built on the common good land and reaffirmed the principle set out in the 2015 Act that the public should be consulted if a Council is considering demolishing any building of note built on common good land.

The case concerned Lochside Leisure Centre which is situated within a country park in Forfar. The leisure centre was closed in 2017 and the building is no longer in use (but independent expert evidence suggests that, if maintained properly, the building could be used for another 30 years). Angus Council had received an offer from a third party to purchase the centre (and the land on which it stands) which was considered at a meeting of Angus Council in February 2019. The Councillors also considered other options for the future of the centre including transferring ownership of the centre to local community groups.  However, after considering various options, and in spite of the expert evidence that the building could still be put to use, the Council decided to demolish the centre at an estimated cost of £500,000. Local citizens, Mark Guild and Donald Stewart, challenged that decision.

The Legal Arguments

In reaching its decision, Angus Council did not consider that it was required to consult the public prior to deciding to demolish the leisure centre because (1) demolition was not a ‘disposal’ in terms of Section 2014 the 2015 Act and (2) in any event, the Council was not selling, disposing or otherwise changing the use of common good land because the common good consisted only of the land on which the leisure centre was built, not the building itself.

The Ruling

The Court rejected both arguments. It held that the leisure centre building was itself part of the common good land. The Lord President opined that "unless structures which are built on the land are held under a separate title, they will be regarded as having acceded to that land and thus become part of it” and Lord Menzies added that “Scots law has been zealous in the protection of common good property”. As a result, the decision before the Council in February 2019 was whether to change the use, sell or dispose of common good property (i.e. the leisure centre building) and was caught by the 2015 Act.

Furthermore, on a sensible reading of Section 104 of the 2015 Act, demolishing the leisure centre and replacing it with grassland was clearly something that the 2015 Act envisaged the public should have a say about even if technically the “before” (namely, the leisure centre) and the “after” (grassland) meant the land would still be used for recreational or leisure activities. While some changes of use of common good land might not always engage the Act – the example given in submissions before the court was changing a tennis court to a basketball court – on any view the demolition of a large leisure centre only to be replaced by grassland was a sufficiently material change to engage the duty to consult.

Lord Menzies acknowledged that minor changes to the use of common good land need to be approached with “the application of that dangerous commodity, common sense.” There may be borderline cases where there is no duty to consult. However, this judgment clarifies the duties of Councils to consult the public when material changes are proposed on common good land, particularly the demolition of buildings, and gives teeth to a key section of the 2015 Act.

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