A recent Outer House judgement has just come out concerning Lochside Leisure Centre, Forfar. This was a challenge on multiple grounds to Angus’s proposed demolition of the Leisure Centre.
The case concerned a leisure centre built on common good ground. Somewhat surprisingly, all parties to the case seemed to accept that the leisure centre itself was not common good: only the land beneath it.
That seems surprising to me, not just in relation to the generally accepted view of accretion in property law, but given some of the comments from Lord Caplan in Kirkcaldy District Council v Burntisland Community Council (1993 SLT 753). That case concerned a caravan park built on common good land and maintained with mainstream funding as regards the amenity block. At least as regards the sale proceeds, Lord Caplan seemed to think the common good gained the benefit of the buildings.
The Forfar case was slightly complicated as authority as to what might be expected in terms of consultation under s.104 of the 2015 Act, in that the initial decision to demolish was prior to the section coming into force. Her Ladyship took the view that the Council was not, in the committee report which was the subject of challenge, deciding to dispose or change the use of the building.
Two points arise from this aspect of the judgement. Her Ladyship was not referred at any point to s.105 of the Act, which requires the local authority to have regard to the Guidance which is now published on s.104, as discussed above. Perhaps she would have considered it as irrelevant because of the special circumstances of the case, but it means the case gives us no clear steer as to how closely local authorities must adhere to the Guidance on notification and publication.
Secondly, Her Ladyship considered that changing the use of the land from a leisure centre to recreational land was not a ‘change of use’ in terms of s.104. Again she was not directed to s.105 and the Guidance made under it in coming to that view. She also said that there was no way of appropriating inalienable common good land for another use – citing Portobello, but apparently being unaware of the Land Reform (Scotland) Act 2016 amendment to s.75 of the 1973 Act, which effectively overturned Portobello.
Lastly, Lady Carmichael took the view that demolition did not constitute a disposal, again perhaps with regard to the particular facts of the case in front of her and the view she had taken that the building itself was not common good.
I understand that the case may be subject to appeal. Watch this space.
POSTSCRIPT: The Inner House of the Court of Session have now reversed this judgement - see their judgement here. Further post on the appeal decision in due course.
Image from Change.org petition to save Lochside Leisure Centre: see https://www.change.org/p/angus-council-and-elected-members-save-forfar-leisure-centre?recruiter=151919330&recruited_by_id=08e14910-3ad3-11e4-93a5-6b34089ed709&utm_source=share_petition&utm_medium=copylink&utm_campaign=petition_dashboard