Guild v Angus Council
| Jurisdiction | Scotland |
| Judge | Lady Carmichael |
| Judgment Date | 19 August 2020 |
| Neutral Citation | [2020] CSIH 50 |
| Date | 19 August 2020 |
| Court | Court of Session (Inner House) |
| Docket Number | No 5 |
[2020] CSIH 50
First Division
Lady Carmichael
Aberdeen District Council (City of) v Secretary of State for Scotland 1990 SLT 291
Banff (Magistrates of) v Ruthin Castle Ltd 1944 SC 36; 1944 SLT 373
Brand's Trs v Brand's Trs (1876) 3 R (HL) 16; 1 App Cas 762
Capacity Building Project v City of Edinburgh Council [2011] CSOH 58; 2011 GWD V16-395;
Crawford v Magistrates of Paisley (1870) 8 M 693
Glasgow District Council v Secretary of State for Scotland 1980 SC 150; 1982 SLT 28; [1982] JPL 374
Grahame v Magistrates of Kirkcaldy (1879) 6 R 1066
Paterson v Magistrates of St Andrews (1880) 7 R 712
Portobello Park Action Group Association v City of Edinburgh Council [2012] CSIH 69; 2013 SC 184; 2012 SLT 1137; 2013 SCLR 32
Waddell v Stewartry District Council 1977 SLT (Notes) 35
Bell, GJ, Principles of the Law of Scotland (10th Guthrie ed, T & T Clark, Edinburgh, 1899), para 937
Campbell, A, et al, SPICe Briefing: Community Empowerment (Scotland) Bill (SB 14-58) (Scottish Parliament, Edinburgh, September 2014), Pt 6, pp 24, 25 (Online: www.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_14-58_.pdf (1 September 2020))
Erskine, J, An Institute of the Laws of Scotland (8th Nicholson ed, Bell and Bradfute, Edinburgh, 1871), II, i, 15
Ferguson, AC, Common Good Law (2nd ed, Avizandum Publishing, Edinburgh, 2019), Chs 1, 3–5; pp 15, 34, 46, 47, 50, 74–81, 94
Gordon, WM, and Wortley, S, Scottish Land Law (3rd ed, W Green, Edinburgh, 2011), vol 1, Ch 7
Scottish Government, Community Empowerment (Scotland) Bill: Explanatory notes (SP Bill 52–EN) (Scottish Parliament, Edinburgh, June 2014), paras 276–282 (Online: www.parliament.scot/S4_Bills/Community%20Empowerment%20(Scotland)%20Bill/b52s4-introd-en.pdf (1 September 2020))
Scottish Government, Community Empowerment (Scotland) Bill: Policy memorandum (SP Bill 52–PM) (Scottish Parliament, Edinburgh, June 2014), paras 84–93 (Online: www.parliament.scot/S4_Bills/Community%20Empowerment%20(Scotland)%20Bill/b52s4-introd-pm.pdf (1 September 2020))
Scottish Government, Scottish Planning Series, Planning Circular 4/2011: Town and Country Planning (Scotland) (Demolition which is not Development) (Scotland) Revocation Direction 2011 (DPPAS 11860) (Scottish Government, Edinburgh, July 2011) (Online: www.gov.scot/publications/planning-circular-4-2011-town-country-planning-demolition-development-scotland/ (1 September 2020))
Stair, JD, The Institutions of the Law of Scotland: Deduced from its originals, and collated with the civil, canon, and feudal laws, and with the customs of neighbouring nations (2nd ed, A Anderson, Edinburgh, 1693), II, i, 40
Local government — Common good — Whether buildings erected on common good land also constituting common good property — Whether demolition of buildings a disposal or change of use of common good property — Community Empowerment (Scotland) Act 2015 (asp 6), sec 104
Words and phrases — “disposing” — “changing the use” — Community Empowerment (Scotland) Act 2015 (asp 6), sec 104
Mark Guild and another presented a petition under the judicial review procedure in the Court of Session seeking to bring under judicial review the respondents' decision to demolish the Lochside Leisure Centre, Forfar. The petitioners sought reduction of the decision and interdict. The petition and answers called before the Lord Ordinary (Carmichael) for a hearing.
At advising, on 13 February 2020, the Lord Ordinary refused the petition ([2020] CSOH 16). The petitioners reclaimed.
Section 104 of the Community Empowerment (Scotland) Act 2015 (asp 6) provides, in part, “(1) Subsection (2) applies where a local authority is considering– (a) disposing of any property which is held by the authority as part of the common good, or (b) changing the use to which any such property is put. (2) Before taking any decision to dispose of, or change the use of, such property the local authority must publish details about the proposed disposal or, as the case may be, the use to which the authority proposes to put the property.”
The respondents are a local authority. They own and manage common good land, including Forfar Country Park. In the 1970s, the respondents built a leisure centre on part of the park. The buildings developed defects and had ceased to be used. The respondents decided to demolish the buildings. The petitioners are residents of Forfar who wish to purchase the buildings. The petitioners brought a judicial review seeking reduction of the decision to demolish the leisure centre and interdict the demolition. Following a substantive hearing, the Lord Ordinary refused the petition. The petitioners reclaimed.
The petitioners contended that sec 104 of the 2015 Act applied and had not been complied with.
The respondents accepted that they had not carried out a notification exercise in terms of sec 104 of the 2015 Act but contended that: (i) while the park was common good land, the leisure centre built on it did not form part of the common good, as there had been no intention to donate the building to the common good and the leisure centre did not form part of the common good account; (ii) the proposed demolition did not constitute a disposal within the meaning of sec 104(1); and (iii) the proposed demolition did not constitute a change of use within the meaning of sec 104(1).
Held (per Lord President and Lord Menzies, diss Lord Malcolm) that: (1) the principle that the owner of land was also the owner of the buildings erected on it by accession applied equally in the context of accessions to common good land and it followed that the leisure centre formed part of the common good, a result to which the respondents' intentions or accounting procedures were irrelevant (paras 2, 35–38); (2) a wide construction ought to be given to the words “disposing of any property” in sec 104 of the 2015 Act, particularly in a statute concerned with transparency and community participation, and in that context the term disposal was capable of encompassing the demolition of a building (paras 3, 4, 39–44); (3) the phrase “changing the use” in sec 104 ought to be approached with common sense and broadly, with demolition of the leisure centre sufficient to give rise to activities on the site different in nature from those available previously and therefore constituting a change in use (paras 5, 6, 45, 46); and reclaiming motion allowed.
Dissenting (per Lord Malcolm) that: (1) the terms “disposal” and “changing the use”, where they were used in sec 104 of the 2015 Act, related to deprivation of the local people of their inalienable entitlement, and returning a disused leisure centre to parkland was a management or administrative act not possessing those characteristics (paras 53–56); and (2) the common good land extended to the park, but not the leisure centre, which had not been separately dedicated or endowed as common good land and which was built as a result of a management decision taken by the respondents (paras 57, 58).
Magistrates of Banff v Ruthin Castle Ltd 1944 SC 36 and Waddell v Stewartry District Council1977 SLT (Notes) 35followed.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Malcolm, for a hearing on the summar roll, on 5 May 2020.
At advising, on 19 August 2020—
Lord President (Carloway)— [1] I agree entirely with the opinion of Lord Menzies, to whom I am grateful for setting out the facts, the submissions of the parties and the three issues which require to be determined. My view may be summarised as follows.
[2] First, 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 the title which relates to it. That accords with the principle, which stems from the Roman Law and is laid down by the institutional writers (Stair, Institutions II, i, 40; Erskine, Institute II, i, 15; Bell, Principles, para 937), and with precedent (Brand's Trs v Brand's Trs, Lord Cairns LC, p 20, Lord Chelmsford, p 23). This principle applies to common good land (Magistrates of Banff v Ruthin Castle Ltd, Lord Mackay, p 49). The Lochside Leisure Centre is therefore part of the common good land. The accounting practices of the respondents and their intentions are irrelevant to this issue.
[3] Secondly, sec 104 of the Community Empowerment (Scotland) Act 2015 (asp 6) applies when a local authority is considering ‘disposing’ or ‘changing the use’ of common good property. The question is what ‘disposing’ means within this particular statutory context. Although one attractive approach would be to regard it as the equivalent of ‘disponing’ by way of sale, gift, or perhaps even lease, ultimately that interpretation would not accord with the intention behind the statutory provisions. That intention, broadly stated, is to require consultation when an important decision is to be taken about the continued use of common good land.
[4] Prior to the introduction of the procedures in the 2015 Act, a local authority was not entitled to demolish buildings which formed part of the common good without the authority of the court (Crawford v Magistrates of Paisley, Lord President (Inglis), p 696, Lord Deas, p 697). It ought to, and does, follow that the authority should not be entitled to demolish buildings without complying with the consultation provisions under the 2015 Act. The reasoning in Waddell v Stewartry District Council (Lord Wylie, p 36) to this effect is persuasive. Disposal includes demolition of a substantial building.
[5] Thirdly, even if such demolition did not constitute a disposal, it would constitute a change of use. ‘Material change of use’ is a term which is familiar in planning legislation. It amounts to ‘development’ which, along with any building operation, generally requires permission (Town and Country Planning (Scotland) Act...
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