Capacity Building Projectrs For Judicial Review Of A Decision Of The City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2011] CSOH 58 |
| Published date | 25 March 2011 |
| Court | Court of Session |
| Date | 25 March 2011 |
| Docket Number | P44/10 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 58 | |
| P44/10 | OPINION OF LORD MALCOLM in the Petition CAPACITY BUILDING PROJECT Petitioners; against THE CITY OF EDINBURGH COUNCIL Respondents: for Judicial Review of a decision of The City of Edinburgh council dated 27 August 2008 ________________ |
Petitioners: Wolffe, Q.C., C. Murray, Advocate; Simpson & Marwick
Respondents: Johnston, Q.C., Ms M Ross, Advocate; City of Edinburgh Council
25 March 2011
[1] The petitioners are the Capacity Building Project, a company limited by guarantee and a registered charity. Their aims are:
"To expand the knowledge and develop the skills of those involved in community development, while providing local people with the means, resources and support to enable them to play an active and inclusive part in the social, economic, political and cultural life of the Craigmillar Community."
The respondents are the City of Edinburgh Council. In terms of a lease between the parties dated 18 July and 18 September 2002, the petitioners became the tenants of the Craigmillar community centre (sometimes called "the college" or "the settlement") at 63 Niddrie Mains Terrace, Edinburgh. That lease has been continuing on a year to year basis, and the petitioners have occupied and run the community centre. On 27 August 2008 the respondents' corporate asset management group decided to terminate the lease as at the end of March 2009. This was to allow the premises to be used as offices for social work staff. In this application for judicial review, the petitioners challenge that decision as being unlawful. They ask the court to quash it and the resultant notice to quit, and to suspend a decree of removing granted by the sheriff at Edinburgh on 22 January 2010.
The parties' positions
[2] At a first hearing, senior counsel for the petitioners, Mr Wolffe, QC submitted that the use of the building as a community centre is part of the common good and thus the respondents have no power to decide that it be used as an office for social workers. In any event the respondents failed to have regard to the fact that they were closing a long standing community centre; nor did they consider the implications for the neighbourhood. In addition the decision proceeded upon the erroneous assumption that the petitioners were to be wound up. Mr Wolffe also submitted that the respondents were in breach of their obligations under section 71 of the Race Relations Act 1976, which provides that, when carrying out their functions, they require to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.
[3] For the respondents, Mr Johnston, QC submitted that the community centre is not part of the common good and that the council has a discretion as to its appropriate use. As to the decision itself, all material considerations were taken into account, and there was no breach of section 71 of the 1976 Act. In any event by the date of the first hearing an equalities impact assessment had been carried out which recommends termination of the lease. Thus, even if there were defects in the procedures in 2008, there would be no point in quashing the decision The necessary work has now been done in respect of both race relations and the wider community issues. Finally, while accepting that the petitioners have a direct interest in the termination of their lease, it was submitted that they have no title to raise the wider public law issues.
The background circumstances
[4] The relevant background circumstances can be summarised as follows. In 1929 the sole remaining trustee of the late Andrew Wauchope of Niddrie disponed to the Lord Provost, Magistrates and Council of the City of Edinburgh some 91 acres of land forming part of the lands and barony of Niddrie Marishall and others, all in return for a price of £19,200. In due course the settlements of Niddrie and Craigmillar were developed. In 1936, in consideration of payment of £350, the council conveyed a small parcel of land at Niddrie Mains Terrace to the trustees of the Edinburgh University Settlement Association for the purpose of the erection of a building "to be used for social purposes". Subsequently the Scotsman newspaper reported the opening of a new education and social centre of the Edinburgh University Settlement at Craigmillar to serve the large new housing area at Niddrie and Craigmillar. The initial use of the building was described as follows:
"On the educational and development side there will be ... book-keeping and boxing, languages (including Esperanto), thrift, cooking, and 'keep fit' classes. There will be health talks to women. Instruction and practice in dramatic rendition has been a successful enterprise elsewhere, and is also on the Craigmillar syllabus. The unemployed men wishful of improving their minds will have competent lecturers to explain to them 'the background of today' - historical and economic."
There was to be a separate entrance to a part of the building dedicated to health and welfare. There was a kitchen and cooking department, where meals would be served for expectant mothers and other women "not in a condition to prepare proper meals in their own houses". It was noted that the idea had a "notable parallel in the arrangement of African villages, which have always their central hall and meeting place, focusing the life of the community." It was observed that the social centre was something which was "really necessary for an intelligent and agreeable social life in a new housing area which has not developed its own means of social life and recreation."
[5] At much the same time another addition of the newspaper reported on a meeting arranged to discuss "the need for community centres in Scotland". Edinburgh had three such centres, including Craigmillar College. They were products of recent housing changes and it was noted that "community ties must be created, outlets obtained for community effort ... otherwise women become neurasthenic, men grow dull, and children get into mischief." The work of the Edinburgh University Settlement, excited much high level interest in the immediate pre-war years. For example, in April 1937 a meeting to discuss and raise funds for the Settlement's work was convened in the House of Commons by Ramsay Macdonald and others. The meeting was attended by many distinguished persons, including Lord Advocate Cooper and Mr John Cameron KC. The latter spoke to the need for additional funds to take forward the work, which, according to Sir David Wilkie, included "pioneer" provision for the social and community life of Craigmillar.
[6] In 1938 the city received a request from the University Settlement for a grant of £1,000 per annum towards the costs of the college. A decision was taken to purchase the building with the price to be paid at £1,000 per annum on condition that, in the meantime, the work of the college would continue under the auspices of the University Settlement. In due course an offer price of £6,000 was fixed. It was agreed that the University Settlement would continue in occupation until 30 September 1943 free of rent, while maintaining the centre on the lines then existing for the benefit of the residents in the Niddrie housing area. In 1940 the subjects were conveyed to the Lord Provost, Magistrates and Council of the City of Edinburgh and their successors in office "as representing the community." Mr Wolffe submitted that thereafter the building was part of the common good to be used only as a community centre. In 1943, on the expiry of the earlier agreement, it was decided that the building should be administered by the corporation, and that, with the exception of a section of the building used as a war-time nursery and clinic, it should "be made available for the social, educational and recreational activities of the various organisations in the area". A remit was made to the treasurer's committee to arrange the letting of the subjects.
[7] Throughout its life the building has been used as a community centre. The Edinburgh University Settlement continues to take an interest in the building. On learning of the respondents' decision to use the premises as a social work office, it lodged an objection dated 31 July 2009 in the following terms.
"It has come to our attention that the City of Edinburgh Council's property services department are planning to close Craigmillar College/Niddrie Mains community centre and use the building as an office facility for the social work department. For those who are unaware, Edinburgh University Settlement Association built Craigmillar College in 1936 and used the facility to provide social, educational and recreational services to some of the poorest, most vulnerable people in Edinburgh. However, in 1943 the University Settlement handed the operation of the community centre over to the Edinburgh Corporation on the understanding that the building would continue to be used as a community resource, used to deliver social, education and recreation services to the people of Craigmillar."
It can be noted that this narrative is not wholly accurate. The building was not "handed over", it was purchased for £6,000. The objection continued by noting that the building had been used for its intended purpose for the past 70 years, and that Craigmillar and its surrounding neighbourhoods still suffered extremely high levels of deprivation. It was considered that the need for a community centre far outweighed the requirement for offices for council staff. The University Settlement therefore strongly opposed any proposals to close the College which would "leave Edinburgh's poorest community without a valuable and much needed community facility." As will become apparent, the respondents' decision was taken in ignorance of the views of the University Settlement and others to the general effect that the...
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