Common good - Guild v Angus Council

Guild v Angus Council, 2020 CSOH 16, appears to be the first judicial consideration of Section 104 of the Community Empowerment (Scotland) Act 2015 which changed - or perhaps more accurately added to - the law of common good. (I explain what common good is in this post.)

Section 104
The section provides that, where a local authority is considering disposing or changing the use of common good property, it must do three things:-

1. publish details of the proposal (s.104(2) & (3));

2. notify the community council and any community body known to have an interest in the property and invite them to make representations (s.104(4) and (5)); and

3. in deciding whether or not to dispose or change the use of the property, have regard to any representations made the community council/body or members of the public in response to publication of the proposal (s104(6)).

Lochside Leisure Centre
In Guild v Angus Council, Lochside Leisure Centre (pictured above), which stands in a public park in Forfar, had become redundant and the Council had decided to demolish it and restore its solum (footprint) by returning it to grass and re-amalgamating it into the surrounding park.

Mr Guild (and an un-named other) objected to this decision and petitioned by way of judicial review for it to be quashed. Amongst various grounds of attack was that the solum of the leisure centre (and the surrounding park) was admitted by the Council to be common good but it hadn't complied with s.104 in that there had been no publication of the proposal to demolish or notification to the community council. Both parties were agreed that the leisure centre itself - i.e. the building as opposed to the ground it stood on - was not common good and was held on the Council's general account.

As there was no intention to dispose of the solum, the issue boiled down to whether demolition of the leisure centre standing on it and its reincorporation into the surrounding park amounted to "changing the use" of the solum. The Council argued that it didn't considering that the use before demolition was leisure and recreation (using the gym etc. facilities in the centre) and the use after would be the same (strolling in the park). It would be different, the Council conceded, if the proposal were to build a school or housing on the site.

The Lord Ordinary (Lady Carmichael) agreed, commenting:-

"[49] Whether a particular decision as to the use to which property is put amounts to a change of use which will engage section 104 is a mixed question of fact and law which will require to be considered on the basis of the facts and circumstances arising in any particular case. [...]

[50] Changing the use of common good land in a park from a leisure use in order to build a school on the land would seem likely to engage the provision. It seems likely that what would under other legislation amount to an appropriation for a different function would engage the provision. It must be doubtful whether Parliament intended that every type of change of use - for example the substitution of a tennis court in a park with a basketball court - would engage section 104. I accept the analysis proffered by the [Council]. The common good land is presently used for leisure purposes, and that will remain the case after the building has been demolished."

Takeaway from the case
Councils will be reassured that not every minor change to the use or management of a common good assets engages the enhanced layers of public participation mandated by s.104 of the Community Empowerment Act. On the other hand, there's a strong hint that, if a change of use would necessitate a formal appropriation (change of function for which land is held by a local authority), then s.104 is likely to be engaged.

Comment
I was intrigued by the concept of a building on common good land not being itself common good (CG). I would just have assumed - without ever having thought about it before - that a building would acquire the same status as the land it stands on on the basis of principles like aedificatio solo, cedit solo (what is built on the land becomes part of the land) etc. And that, if a Council's general fund pays for a building on CG land, the building becomes CG as well but the general fund has a claim on the CG fund for recompense. Or something like that - I don't know - these are just off the cuff thoughts out loud. The Lochside Leisure Centre building not being CG despite its solum so being was just a concession by the Petioners' counsel rather than a decision by the Court that such a thing is possible, of course, and Lady Carmichael didn't comment on this aspect, one way or another. But considering how much CG property is, in practice, funded by the general account, it's an ingenious argument which may be capable of being deployed in a future case to extricate a Council from a common good trap it has fallen into.