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  • Writer's pictureandrew ferguson

'That Dangerous Commodity, Common Sense' - an Inner House Common Good Decision

Updated: Oct 12, 2020

In an article on this blog back in March, I reported on the Outer House decision in the case of Guild and Another v Angus Council, and indicated the case was under appeal. Watch this space, I said: and, just six months later, we now have the Inner House decision, when their Lordships, by a 2 - 1 majority, found in favour of the appellants (or to use the proper Scots law term, reclaimers).

The immediate effect of the judgement will be to halt the proposed demolition of Lochside Leisure Centre, Forfar, while Angus considers its next move. There is much to digest in the leading judgement of Lord Menzies, as well as Lord Malcolm's dissenting one. I'm currently working on an article for Scottish Planning and Environmental Law Journal, but in the meantime, the key points to take away from the current decision can be found in the Lord President, Lord Carloway's 7 pithy paragraphs on the matter:

Council property attached to common good land will be presumed to be common good, unless held under a separate title. This follows the general law in Scotland and elsewhere that a building will be owned by whoever owns the soil underneath it, in the absence of some specific evidence to the contrary. Angus Council may well not be the only local authority to have previously relied on its accounting treatment of such assets to classify buildings - often erected with non-common good money - as other than common good.

Councils need to carry out a Community Empowerment Act consultation if they propose to demolish common good properties. Applying earlier cases on demolition of common good properties to the current case, the Court held that this would, in the context of the Community Empowerment Act's provisions, need the enhanced community consultation provisions to have been followed.

'Change of use' in the context of the Community Empowerment Act will be given a broad interpretation by the courts. In the current case, demolition of a leisure centre and its replacement with a recreational grassed area would constitute a change of use which had to be consulted on under the Act. I remember, shortly after the Outer House decision came out, giving an update at the CLT Conveyancing Conference on it where I made a dry lawyer's joke about my squash game being considerably improved by the presence of four walls to bounce the ball off.

Be that as it may, the issue was, in the memorable words of Lord Menzies, 'to be approached with the application of that dangerous commodity, common sense.' Perhaps surprisingly, the appellant's side seem to have made no reference in their submissions to the existing Guidance on the matter, which, as is common in modern legislation, has a semi-binding status, given that councils are bound by s.105 to 'have regard to it.' (Apparently the Council's Counsel did, but it was ignored in the judgements). That Guidance certainly suggests that a change of use would be interpreted broadly.

Backing up that interpetation now is an Inner House decision, which many campaigners will think correctly applies the dangerous commodity in question.

POSTSCRIPT: Angus Council have now decided not to appeal the decision further. It will remain therefore as a precedent at Inner House level.

PPS: The article will appear in the November SPEL edition. I'll also incorporate a discussion of the Inner House decision in my next Common Good Law seminar for CLT, currently scheduled for 22 January 2021 13.00 - 14.00.

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