MARK GUILD & ANOTHER FOR JUDICIAL REVIEW [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MARK GUILD & ANOTHER FOR JUDICIAL REVIEW [2020] ScotCS CSOH_16 (13 February 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_16.html Cite as: [2020] ScotCS CSOH_16, [2020] CSOH 16, 2020 GWD 7-100, 2020 SCLR 685

[1] The petitioners seek reduction of a decision of the respondent, Angus Council, to

demolish Lochside Leisure Centre, Craig O’Loch, Forfar (“the leisure centre”). The first

petitioner is a property developer who was permitted to organise an inspection and survey

of the leisure centre to assess its potential for future use. The second petitioner made an

[2] On 1 May 2018 the Policy and Resources Committee of the respondent considered a

report reference number 151/18 from his head of infrastructure. The report recommended

that the leisure centre be declared surplus to requirements and be demolished and the land

reinstated. The report narrated that the leisure centre was no longer used following the

completion of another facility in February 2017. It included the following:

“The building had previously suffered subsidence with ongoing settlement and

whilst a number of potential opportunities have been explored the building will

ultimately need to be demolished … The building has suffered from some vandalism

since its closure and the potential to be used as a library decant has been explored

and discounted, allowing the building to be declared surplus … At this time the

proposal following demolition would be to return the areas to grass including some

realignment of the paths around the building. Any alternative uses will be reported

to the committee as appropriate… The availability of the property has been

circulated to all directorates with no alternative uses or interest being shown.”

The committee resolved to approve the recommendation to demolish the leisure centre.

[3] The first petitioner expressed concern to the respondent that it had not appreciated

the potential for continued use of the leisure centre. The chief executive of the respondent

commissioned an ad hoc review of report 151/18, with a view to reviewing the processes and

evidence that led to the recommendation and other associated matters. The chief executive

found that the evidence available was consistent with the decision-making. She was critical

of the audit trail in relation to the decision-making. She said that she would have

recommended obtaining an independent structural review, but noted that one had by the

[4] The respondent permitted the petitioners and others to inspect the leisure centre

with a view to making a proposal for its continued use. Various investigations followed. A

structural engineer instructed by the first petitioner carried out a non-disruptive inspection

on 4 September 2018 (“the first Millard report”). A structural engineer instructed by

chartered surveyors engaged by the respondent carried out a non-disruptive inspection on

15 October 2018. A roofing contractor carried out an inspection for the first petitioner on

16 November 2018. Each of these inspections resulted in a report. The petitioners founded

on parts of those reports in their submissions. The first petitioner’s structural engineer

reviewed papers relating to structural inspections of the leisure centre from 1998, 2001, 2008

and 2018 and provided a further report in December in relation to his review (“the second

[5] On 20 November 2018 the respondent’s Scrutiny and Audit Committee considered a

report by the respondent’s chief executive, and was provided with a copy of the internal

audit report. The minutes of the meeting record that the committee agreed to note the

contents of the internal audit review regarding the leisure centre. On 17 January 2019 the

respondent sent a letter to the petitioners and others who had expressed an interest in the

“Angus is aware that you have made contact regarding the surplus building that was

Angus Council’s formal position, as agreed by the elected members, is that Lochside

Leisure Centre is to be demolished and the Council are in the final stages of assessing

the tenders for demolition. This process will conclude shortly and the Council

A number of parties have contacted the Council in recent days to express/ note an

While Angus Council is not actively seeking offers for the building, an interested

party was previously offered the opportunity to view and assess the building and

was provided with information on the condition and running costs of the surplus

asset. As such, the Council acknowledges it has a duty to treat all parties equally and

demonstrate it has done so. Attached to this email are the relevant documents to

Accordingly, Angus Council are contacting known interested parties to make them

aware that only those parties who contacted the council previously will be given an

opportunity to inspect the building on a date and time to be confirmed shortly.

Thereafter, interested parties will have up to Noon on 30th January to submit a formal

[6] On 22 January 2019 the first respondent wrote a letter which was circulated to all

[7] The respondent provided access to the leisure centre to the petitioners and other

parties on 23 January 2019. On 30 January 2019 the second petitioner offered to purchase the

leisure centre. On 7 February 2019 there was a meeting of the full council of the respondent.

At that meeting the respondent considered a report by its head of infrastructure in relation

to the leisure centre (“report 48/19”). It contained recommendations that the Council:

“(i) confirms that [the leisure centre] is demolished with the Common Good land

(ii) agrees that the modular building previously used as changing rooms is offered

[8] Report 48/19 had not appeared on the publicly available agenda for the meeting. It

was added as an urgent item. The minutes of the meeting include this passage:

“In accordance with the provisions of Standing Order 11(2)(ii) the Provost ruled that

Report no 48/19 (including addendum) and exempt Report 49/19 were to be

considered as matters of urgency, in order that the Council could come to a decision

“5.5 Given the submitted offer for the building, it is appropriate for the council to

consider the merits of such an offer alongside the steps to progress the disposal of

5.6 The council has policy guidance on the Common Good Funds … The Local

Government (Scotland) Act 1994 s15(4) requires the Council to have regard to the

interests of the inhabitants of the areas to which the Common Good formerly related

when administering the Common Good Funds. The council is to ensure the long

term sustainability of the common good fund, retention of the ownership best meets

our aspiration to ensure the community has full access to this part of the country

park for future generations. Any disposal or Community Asset Transfer will lead to

period of delays whilst the statutory processes for consultation and possible court

approval are complied with. During which period the building will incur

maintenance costs and the demolition contract cannot be awarded and no access will

5.7 The provisions of Section 104 (disposal and use of common good property:

consultation) of the Community Empowerment Act 2015 came into force on 27 June

2018. Section 104 requires that, before taking any decision to dispose of, or change

the use of common good property, the council must publish details about the

proposal and notify certain bodies and invite those bodies to make representations in

5.8 The decision to demolish the building pre-dates this legislation. Accordingly,

legal advice is that there is no requirement to consult on the demolition of the

building including the reinstatement of the ground and landscaping as part of the

5.9 If Members are minded to dispose of, or change the use of the Common Good

land on which the Leisure Centre is built, other than by demolition, the requirement

5.10 In addition there is the strong possibility that any disposal of the common good

land would require court approval in accordance with section 75 of the Local

Government (Sc) Act 1973 … For the purposes of assessing the financial implications

in this report it has been assumed that court approval will be required.”

[10] Report 48/19 went on to detail various financial considerations, including ongoing

running costs of £4,000 per month for the leisure centre, mostly by way of non-domestic

rates and insurance. That figure excluded costs arising from vandalism or other necessary

emergency repairs. It narrated that sale of the building via the current offer would bring a

capital receipt to the common good account in respect of the land, and the general fund

capital account in respect of the building. It included estimated legal costs and costs of

officer time associated with sale arising from the need to apply to the court in respect of a

sale. It narrated that costs might be incurred in respect of a sale which did not then proceed.

[11] Paragraph 8.1 of report 48/19 is in the following terms:

“Option 2 is recommended as per Report No 151/18 and confirmed in Report No

362/18 for the reasons explained within the report. The council is to ensure the long

term sustainability of the common good fund and it is felt that Option 2 best meets

our aspiration to ensure the community has full access to this part of the country

park for future generations. Any disposal or Community Asset Transfer will lead to

a period of delays whilst the statutory processes for consultation and possible court

approval are complied with. During which period, the building will incur

maintenance costs and the demolition contract cannot be awarded and no access will

[12] The first petitioner avers that he became aware, because of a response to a specific

inquiry by him, that the respondent was to consider the future of the leisure centre at the

meeting of 7 February. The first petitioner avers that he made representations orally and in

writing at the meeting. A copy of his speaking note has been produced. The second

petitioner avers that he was abroad and unaware of the matter. The respondent admits that

the first respondent made oral representations, but not that he made written representations.

[13] The respondent’s members voted by a majority of 13 to 8 to accept the

[14] The respondent’s position is that the leisure centre building does not appear on its

common good account and is not common good property. The land on which it stands is,

however, common good property. Although the petitioner placed a call on the respondent

to state why the building was not on the common good account, the petitioner did not at the

substantive hearing dispute the respondent’s position about this matter.

[15] The respondent did not move that I should sustain its first plea in law, one of

[16] Parties lodged a joint statement of issues. The issues were formulated as follows:

(1) Whether the decision was made in accordance with the procedure

requirements of the respondent’s own Standing Orders. If not, did the petitioners

(2) Whether the decision made by the respondent required to be made under and

within the statutory requirements of section 104 of the Community Empowerment

(3) Whether the decision made by the respondent required to made under and was

within the statutory requirements of section 15(4) of the Local Government

(4) Whether the decision made by the respondent required to be made under and

was within the statutory requirements of sections 74 and 75 of the Local Government

(5) Whether the respondent took into account irrelevant considerations or failed to

(6) Whether the respondent required to give proper, adequate and intelligible

(7) Whether in all the circumstances the respondent’s decision was unlawful.

[17] The respondent failed to follow its own Standing Orders. It had not placed the item

concerning the leisure centre on the agenda, and it had not recorded in the minutes of the

meeting the special circumstances on the basis of which the provost had concluded that the

matter required urgent consideration. The respondent was entitled to consider something as

a matter of urgency. There must be a record made in the minutes of the explanation as to

why the decision to do so had been taken. The reference to timeousness in the minute was

not an adequate explanation. The tenders for demolition would still have been valid at the

time of the respondent’s next scheduled meeting on 21 March. The urgency could not arise

from the circumstance that an offer had been made. The respondent had set a deadline of

30 January for offers, more than a week before 7 February. It was not sufficient to provide

reasons in the pleadings, as the respondent had done. The decision was in any event

unreasonable, as, even on the reasons disclosed in the pleadings, there was no urgency.

[18] The second petitioner was unable to attend the meeting at short notice. If he had

attended he would have made representations. He would have asked for the decision to be

postponed with an opportunity for the public to participate or to clarify any concerns the

respondent had about his offer. The respondent had a duty under section 15(4) of the

1994 Act to have regard to the interests of the inhabitants of the area to which the common

good formerly related when taking decisions in relation to common good land.

[19] The respondent had failed to comply with its duties under section 104 of the

2015 Act. That provision imposed a duty to consult where the respondent was considering

disposing or changing the use of any property that was held as common good land. The

respondent had misdirected itself in law by taking the view that it did not require to consult

because a decision to demolish had been taken before the 2015 Act came into force. At the

meeting on 7 February 2019 the respondent was considering whether or not to dispose of or

[20] The respondent had failed to comply with its duty under section 74 of the 1973 Act

not to dispose of land for a consideration that is less than the best that can reasonably be

obtained (“best value”). The decision of the respondent was not supported by reasons that

were adequate in law, and was unreasonable so far as best value considerations were

concerned. The respondent had not taken any steps - such as placing the leisure centre on

the open market for sale - to ascertain what a purchaser might pay for it. Demolition was a

costly option, and other options would not involve similar expenditure. The failure to place

the property on the open market and ascertain the “best price” was also characterised as a

[21] The respondent proceeded on an error of fact. Report 48/19 was misleading. It

“The difference of opinions is in terms of the serviceable life of the building; with

uncertainty over the foundations [sic] stability, and with ongoing maintenance and,

revenue costs. With over 20 years of inspections of the building until shortly before

its closure, problems have persisted, and can be foreseen as ongoing, to a point that,

That statement mischaracterised the content of the expert reports on the condition of the

building, and there was no proper basis for it. Insofar as the decision was based on the

proposition that the leisure centre was or would become no longer serviceable, it was

flawed. If the decision to treat the matter as urgent was based on that proposition, it, also,

was flawed. Insofar as the respondent relied on a “Survey of Foundation Settlement” dated

October 2010 it acted unreasonably. It should not have relied on it without instructing a

more detailed report. The respondent had failed to monitor the progression of cracks in the

[22] The petitioners argued, finally, that the respondent had failed to take into account

the first petitioner’s representations. He had asked for the decision to be delayed

“to fully take account of the updated information on the condition of the leisure

centre and the potential future uses for it, and to consult with the public in relation to

[23] The special circumstances leading to consideration of report 48/19 were contained in

the minutes of the meeting. Even if there had been a breach of the requirements in the

standing orders, the petitioners had failed to demonstrate that they had suffered prejudice

as a result. The second petitioner had sent the Millard reports to the elected members of the

respondent. The first petitioner had attended the meeting and made representations.

[24] The reasons for the decision to add the item to the agenda were as set out in the

“… [report 48/19] was added as an urgent item due to the timing of the receipt of the

offer for the leisure centre … and the need to progress with the demolition contract

in advance of the summer season if the building was to be demolished and offer not

accepted so as to avoid impact on other uses nearby and due to public interest in the

future of the leisure centre as demonstrated by interest by the press. The respondent

is incurring costs and expenses in relation to the vacant leisure centre in the order of

£4,000 per month and will continue to do so until it is demolished. Further as noted

in [report 48/19] officers had procured tenders for the demolition of the building.

Tenders were received on 11 January 2019 and remained open for acceptance until

11 April 2019. The decision to proceed with the consideration of [report 48/19] at the

7 February 2019 meeting was duly taken by the Provost in accordance with the

respondent’s standing orders and is duly minuted, which minutes have been

approved. If it had not been considered at that meeting it would not have been

[25] The provost had made the decision, and so the substance of the standing order had

been complied with. The provost had formed an opinion, and that had been recorded. This

was not a “failure to give reasons” case. It fell to be distinguished from cases in which

reasons required to be given for a substantive decision, explaining the outcome of the

deliberations of a public authority. What was alleged was a procedural failure or

irregularity, and there could be no remedy unless prejudice were established. In any event,

the reference to timeousness could be understood in a context in which a decision to

demolish had been taken some months previously. It was clear from the reports regarding

the leisure centre that a decision required to be taken quickly or timeously. The respondent

needed to decide quickly whether or not to change tack. It was correct to say, as the

petitioners did, that the tenders for demolition would have remained valid until after the

next meeting of the respondent. That might have been a reasonable basis for declining to

consider the business, but the provost had been entitled to take a different view. If I were

against the respondent in relation to any requirement to give reasons for the urgent

consideration of the business, then I had a discretion as to whether to reduce the decision of

the respondent. This was not a situation in which reasons were being manufactured ex post

[26] Counsel submitted that at the meeting on 7 February 2019 the respondent was

determining whether or not to “change course”. The only decision made on 7 February 2019

was one not to interfere with the decision of 1 May 2018. There had been no challenge to the

decision of 1 May 2018. The respondent had obtained tenders for the demolition work,

[27] The respondent had before it a further report, report 49/19, relating to the offer to

purchase the leisure centre, but merely noted its contents. Report 49/19 related that if

members were minded to pursue sale rather than demolition, the leisure centre ought to

have been marketed for sale. That did not arise, however, as the respondent had confirmed

[28] The provisions of the 2015 Act did not apply because the respondent did not decide

to dispose of or change the use of any common good property. The first task for the

respondent was to consider whether it even wanted to contemplate the loss of part of the

country park for future generations. If it did not, it had no need to engage with the

restrictions on the sale of land on which the petitioners relied. The respondent had no

obligation to consider selling the land. The building was not held on the common good

account: report 48/19, paragraph 3.2. It was the land that was held on the common good

account. This was reflected in paragraph 6.4.2 of the report - sale of the building would

bring in a capital receipt to the Forfar Common Good account (land) and General Fund

capital account (building). The land was held by the council for the common good, but the

building was not. There was no change of use of the land. The land had been used for

community purposes and would remain in community use after the building had been

demolished. Where common good land was being retained, section 104 of the 2015 Act was

[29] There had been no breach of section 74 of the 1973 Act. The respondent did not

dispose of any land. In any event, the value of the land required to be considered not only

in financial terms, but by reference to the benefit of retaining the land within the common

good land managed by the respondent. There was no requirement when retaining common

good land to ascertain what value might be obtained if it were to be sold.

[30] The respondent was under no obligation to place the site on the open market,

bearing in mind that the site was common good land and its significance as part of the wider

common good land around Forfar Loch. There was no obligation to market property to see

what price might be achieved, in the knowledge that it was not going to be sold.

[31] The complaint about error of fact was without substance. Examination of the content

of a number of passages in the reports about the condition of the building disclosed that

[32] Clause 11(2) of the respondent’s standing orders states:

“Except as otherwise prescribed by statute, no item of business shall be considered at

(i) a copy of the agenda including the item has been open in advance to

(ii) by reason of special circumstances which shall be recorded in the minutes

of the meeting, the Provost is of the opinion that the item should be

I was not referred to section 50B(4) of the 1973 Act, but note that it is in similar terms:

“An item of business may not be considered at a meeting of a local authority unless

(a) a copy of the agenda including the item (or a copy of the item) is open to

inspection by members of the public in pursuance of subsection (1) above for

at least three clear days before the meeting or, where the meeting is convened

(b) by reason of special circumstances, which shall be specified in the

minutes, the convener of the meeting is of the opinion that the item should be

A very similar provision appears at section 100B(4) of the Local Government Act 1972.

[33] Although the statement of issues identifies a separate argument under reference to

section 15(4) of the 1994 Act, the petitioner referred to this provision only in relation to the

paragraph of the petition regarding failure to comply with the standing orders.

Section 15(4) requires that a local authority to which property held for the common good

was transferred from a previously existing local authority shall administer that property

having regard for the interests of the inhabitants of the area to which the common good

related prior to 16 May 1975. I understood the reference to be intended to emphasise the

need for the respondent to take those interests into account in administering the common

good, and the potential prejudice to members of the public in not having notice of the

[34] The requirement in the standing orders that the special circumstances be recorded is

a requirement to give reasons. It requires that the circumstances informing the opinion of

the provost be recorded. It is a safeguard against arbitrary departures from the normal

prescribed procedures. The reasons must be comprehensible. Those prescribed procedures

are there to secure the aim that members of the public have notice of the respondent’s

business. They are there to secure transparency. They afford members of the public the

opportunity to make representations to their elected representatives. The requirement that

the reasons for a departure from those procedures be recorded has the purpose of securing

public confidence in the integrity and transparency of local authority decision making.

[35] I asked parties for submissions as to whether giving adequate reasons for the

decision to consider the business as a matter of urgency was a condition of the lawfulness of

the decision of the provost, under reference to Chief Constable, Lothian and Borders Police v

Lothian and Borders Police Board 2005 SLT 315. I drew that reported case to their attention. I

use the word decision, because the provost’s opinion is a decision by him or her that special

circumstances exist such as to permit departure from the normal requirements. For the

decision to be lawful, there must be special circumstances. Those must be recorded in a way

that allows members of the public to understand what the circumstances were that merited a

departure from the rules that normally secure their right to have advance notice of the

business of council meetings by means of inspection of the agenda. Neither party

considered that the present case was directly analogous to Chief Constable, Lothian and Borders

[36] The decision in this case, unlike that in Chief Constable, Lothian and Borders Police, and

those in many of the cases cited by Lord Reed in his opinion, does not relate to the

substantive merits of a dispute, but to a decision to proceed with urgency and outside the

normal and prescribed timeframe. It is, however, relevant to consider the purpose of the

provision, and the interests that it seeks to protect. As I have already mentioned, the interest

protected by the need to give reasons is an important one. Any derogation from the normal

procedure requires justification, and it is prescribed that that justification, by way of special

circumstances, requires to be recorded, and recorded in a particular way. I consider that the

giving of adequate reasons by way of recording in the minutes the special circumstances

justifying treating an item of business as urgent is a condition of the lawfulness of the

[37] Whether reasons are adequate must be assessed to the approach in Wordie Property

Co Ltd v Secretary of State for Scotland 1984 SLT 345, at 348. A decision must leave the

informed reader and the court in no real and substantial doubt as to what the reasons for it

were and what the material considerations were which were taken into account in reaching

it. The reference to the informed reader means that in some cases reasons expressed very

summarily will be adequate and comprehensible by reference to other available information,

and in particular information that was before the decision maker.

[38] I accept that there is nothing in the minutes themselves to explain what was meant

by “timeously”, or by reference to what date, circumstances or event timeousness was being

assessed. Report 48/19, however, does refer to a number of the circumstances now

mentioned by the respondent in answer 3. The dates of receipt and expiry of the tenders

appear at paragraph 5.1. The ongoing costs of running the building appear at

paragraph 6.4.1. The timing of any offer would have been clear to all concerned, given the

deadline imposed by the respondent. A copy of the letter imposing the deadline was an

appendix to the report. The need to progress with the demolition contract in advance of the

summer season so as to avoid impact on other uses, and press interest are not considerations

[39] There is a danger that reasons provided subsequent to the decision, particularly in

the context of proceedings for judicial review, will be influenced by the existence and nature

of those proceedings. They may be entirely inadmissible in situations in which the giving

of reasons is a condition of the lawfulness of the decision: Chief Constable, Lothian and Borders

Police, paragraph 70. In assessing the adequacy of the reasons given for proceeding

urgently, I therefore disregard those considerations now narrated in answer 3, but not

disclosed in the report or associated papers. Having regard only to the circumstances

disclosed in report 48/19, I consider that the informed reader, looking at the report and the

minutes together, would be able to discern that timeousness was being assessed by reference

to the dates of expiry of the tenders, the timing of the offer, and the ongoing running costs of

the leisure centre. I do not consider that there has been a failure to give reasons such as to

[40] I do not consider that the decision was unreasonable. While it might have been open

to a decision maker reasonably to conclude that matters could be deferred until the meeting

of 21 March, I consider that it was reasonably open to the provost, having regard to the

matters I have already referred to as being disclosed in the report to decide that the item of

[41] If I had decided that the decision to proceed urgently was unlawful because of a

failure to give reasons, I would not have considered that the question of prejudice was

relevant, given my view that adequate reasons are a condition of the lawfulness of the

decision. If, contrary to that analysis, prejudice is relevant to this chapter of submissions,

my conclusion is that the petitioners have not identified any prejudice to them. They have

not identified what additional material might have been put before the respondent so as to

cause the respondent’s decision to be different, had more notice been given of the meeting.

Both Millard reports were with the elected representatives by reason of the first petitioner’s

letter dated 22 January 2019. It included a plea for more time to be taken to consult. The

speaking note which the first petitioner used when he made oral representations on

7 February 2019 canvasses quite fully the issues relating to the state of information about the

condition of the leisure centre which feature in this petition. It contains a complaint about

the lack of notice of the meeting. It contains a further request for more time to consult. It

refers to the desirability of the respondent’s accepting the second petitioner’s offer. Putting

matters another way, if the decision to deal with report 48/19 falls to be treated as a failure to

observe procedural requirements properly, no material has been presented to demonstrate

that there was a real possibility that the decision as to whether to demolish or to take a

different course would have been different had that failure not occurred.

“(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

(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

(3) The details may be published in such a way as the local authority may determine.

(4) On publishing details about its proposals under subsection (2), the local authority

(a) notify the bodies mentioned in subsection (5) of the publication, and

(b) invite those bodies to make representations in respect of the proposals.

(a) where the local authority is Aberdeen City Council, Dundee City Council,

the City of Edinburgh Council or Glasgow City Council, any community

(b) where the local authority is any other council, any community council

whose area consists of or includes the area, or part of the area, to which the

property mentioned in subsection (1) related prior to 16 May 1975, and

(6) In deciding whether or not to dispose of any property held by a local authority as

part of the common good, or to change the use to which any such property is put, the

(a) any representations made under subsection (4)(b) by a body mentioned in

(b) any representations made by other persons in respect of its proposals

[43] The argument for the petitioners was that the respondent was considering disposing

of the property, or, alternatively, changing its use. That was apparent from the various

options set out in report 48/19. Two of the options - those involving sale - obviously

involved disposal of the property. Demolition involved a change of use.

[44] Although the language of subsection (1) refers to a local authority “considering”

disposing of property or changing its use, a reading of the whole section, and in particular

subsection (2), makes it clear that what is prohibited is a decision to dispose or change the

use of property without publication of the proposal and the opportunity for representations.

The intention appears to be to prevent a decision to dispose of property or change its use

without first allowing community councils and other interested community bodies an

opportunity to learn of the disposal, and to allow them and others to make representations.

The section does not require publication and opportunities for representations before

making a decision not to dispose or change the use of property. It is not engaged where a

council is not acting or proposing to act in a way which would alter the status quo.

[45] I deal first with the question of disposal. By its decision of 7 February 2019 to

demolish the building, the respondent was not deciding to dispose of common good

property. The respondent determined not to sell, and there was no decision to dispose of

the land by sale. The common good property in this case is the land, and not the building.

Demolition of the building will not result in disposal of the land.

[46] I was referred to Waddell and others v Stewartry District Council 1977 SLT (Notes) 35.

That case related to the demolition of the town hall in Gatehouse of Fleet. There appears to

have been no dispute in that case that the town hall formed part of the common good. The

defenders would not have been entitled to alienate or dispose of it without the authority of

the court, in terms of section 75(2) of the Local Government (Scotland) Act 1973. The

Lord Ordinary required to determine whether the demolition should be regarded as a

disposal for the purposes of a motion for recall of an interim interdict. The following

“Prima facie, to dispose of land is to make it over to someone else. Whether or not

that involves a transfer of ownership as well as possession and control will depend

on the context in which the transaction takes place. It is clear from the authorities to

which I have referred that property of this nature is extra commercium. It could not

be sold, without the authority of the court, because that would be to deprive the

community of something which, as a community, they were entitled to have. It

follows that it could not be alienated by donating it and as the same result would

follow so far as the community is concerned, it would seem logical that its

demolition, for example for road widening purposes, would likewise be an ultra

vires act. In Crawford v. Magistrates of Paisley (1870) 8 M. 693, opinions were expressed

that a steeple formed part of the inalienable property of the burgh which the

magistrates were not entitled to take down without judicial authority, except on the

ground of absolute necessity. At p. 696 Lord President Inglis said: ‘It must be

observed that this steeple is not only the public property of the burgh, but it is

inalienable property. They could not sell it, and most unquestionably they could just

as little pull it down without judicial authority, unless the immediate risk was so

imminent as to entitle them, for the safety of the community, to do so’ . Likewise,

Lord Deas, at p. 697, expressed himself thus ‘As your Lordship has observed, this

steeple was part of the inalienable property of the burgh, which they could not sell,

and could not take down, except on necessity’. I have accordingly come to the view

that in this context what constitutes alienation must be liberally construed and would

include any action which effectively deprives the community of something which, by

custom or dedication by direct grant, they are entitled to have. If an authority cannot

deprive the community of the use of property which is inalienable by disposing of it

in the ordinary commercial sense of the term, or by making a gift of it, it would only

be in accordance with the underlying principle that they could not deprive the

community of its use by destroying it, except in the highly special circumstance of

imminent danger to the public. In the context of the deed itself, the object of the grant

being the declared purpose of providing a town hall, I consider that a similarly wide

construction falls to be placed on the words ‘dispose of’, and these words would

As to whether the same words where they appear in s. 75 of the 1973 Act fall to be

similarly construed I express no view. These provisions were not canvassed in

argument in any detail and notwithstanding the wide terms of s. 74 (1) it may well be

that in this statutory context disposal of land is envisaged only in a commercial

sense. The previous statutory provision, namely s. 171 of the 1947 Act, would seem

to relate to the selling and feuing of land but the group of sections in that Act relating

to the disposal of land generally is very different, and much more specific, than the

[47] The case falls to be distinguished from the present one, in that the court proceeded

on the basis that the building in respect of which demolition was proposed was property to

which section 75 of the 1973 Act applied: it was land forming part of the common good with

respect to which a question arose as to the council’s right to alienate it. The sense of the final

paragraph in the foregoing passage suggests that the reference to section 75 ought to be a

reference to section 74. The Lord Ordinary had been considering the construction of

“dispose of” in section 75(2), and then goes on to reserve his position as to whether the

expression has the same meaning in a different provision, which must be section 74, the

provision dealing with achieving the best consideration that could reasonably be obtained

on disposal. He expressed the provisional view that it might relate only to disposal in a

commercial sense rather than comprehending acts such as demolition.

[48] I require to deal with the question whether demolition of the leisure centre amounts

to a change of use for the purposes of section 104. The respondent submitted that the use of

the land remained a leisure and recreational use. It would be different if what were

proposed was that a leisure use were to be changed to, for example, an education use (as in

East Renfrewshire Council, petitioner [2014] CSOH 129 and Portobello Park Action Group

Association v City of Edinburgh Council 2013 SC 184), or a housing use. Before the leisure

centre was erected, the land had been used for leisure and recreational purposes. It had

continued to be used in that way after its erection, and would continue to be used in that

[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. I was not provided with any authority as to the construction that should be given to

the expression in the context of the 2015 Act. The approach of the respondent might suggest

that change of use might be regarded as broadly similar to appropriation of land held for

one function for the purposes of another function: 1973 Act, section 73(1).

[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 respondent. The

common good land is presently used for leisure purposes, and that will remain the case after

[51] The petitioner in submissions laid some emphasis on paragraphs 5.7-5.9 of

report 48/19, quoted above. The advice is not in most of its substance wrong. I have

concluded that the decision to demolish did not engage section 104 in this case. Decisions to

sell would have done so. The underlying analysis is not, however, correct. The advice

proceeds on the basis that section 104 is not engaged because the “original” decision to

demolish was made before the 2015 Act came into force. That perhaps explains the

respondent’s insistence in these proceedings that there was no new decision, but a

non-departure from an earlier decision. Section 104 was not engaged. That was, however,

because the decision made on 7 February was not one to dispose of the property or change

its use, not because it represented adherence to an earlier decision. Paragraph 5.9 is

unhappily expressed. It could be construed as reflecting an understanding that demolition

did represent a change of use, and that the only reason why section 104 was not engaged

was the earlier decision to demolish. As I have explained, that is not how I have construed

[52] No argument appears in the petition, nor was one made at the substantive hearing,

that the respondent’s decision was unlawful by reason of section 75 of the 1973 Act,

although such a contention is listed in the joint statement of issues. It is apparent from

paragraph 5.10 of report 48/19 that the respondent had not reached a concluded view as to

whether the land in question was alienable, or whether it was land to which section 75(2)

applied. The respondent clearly had in mind that a disposal of the land might well require

the approval of the court. For the reasons that I have already given, there is no disposal of

common good property by reason of the demolition of the leisure centre. In the

circumstances of this case no change of use of the common good property arises. If a

question as to whether the land could be alienated arose, then there could be no disposal

without the authority of the court under section 75(2). There is no provision in the 1973 Act

for a court to give authority for appropriation of inalienable common good property for

another purpose: East Renfrewshire Council; Portobello Park Action Group Association.

Section 73 and section 75(1) of the 1973 Act do not override the common law so far as

inalienable common good property is concerned: Portobello Park Action Group Association.

[53] The petitioner’s submission was that the content of report 48/19 was such that the

respondent proceeded to make a decision on the basis of factually incorrect information.

Mr Burnet placed particular emphasis on the content of the two Millard reports. The first of

“There were very few structural defects observed externally during the inspection,

and any cracking noted appeared to be caused by thermal shrinkage and not by

progressive ground movement. The external walls appeared to be well detailed with

vertical movement joints noted at regular centres. Internally, the masonry walls

were exposed in a number of areas and no cracking or evidence of structural

movement was noted. In the areas where the masonry was concealed by finishes, the

finishes generally consisted of a brittle finish directly applied to the masonry. Any

cracking observed internally generally appeared to be cosmetic and not symptomatic

of ongoing structural movement. Due to the brittle nature of the finish it is thought

The ground floor appeared to be significantly sloping in areas, particularly in the

areas adjacent to the sports hall. The floors appear to be sloping down towards the

sports hall and squash courts suggesting that separate parts of the structure have

settled at differing rates. In this area of the building it was noted that the floor was

finished in tiles. In a tiled floor finish any recent ground movement is generally

characterised by cracking and tiles becoming boss. No such defects were noted thus

suggesting that the ground movement is historical and not progressive.

In conclusion, it would appear the building does show evidence of structural

settlement; however, the defects noted are not symptomatic of ongoing or

progressive structural movement. The nature of the finishes in the building would

clearly present evidence of ongoing ground movement issues, this evidence was not

[54] The second Millard report contained a review of other structural survey reports, and

in particular one dated 26 July 2001, which it characterised in the following way:

“The findings from the survey were that there were three localised ‘soft spots’

located within the footprint of the building. The report also stated that ‘monitoring of

the building has revealed that ongoing building movement to be very slow’ and

‘settlement may have happened during construction and does not pose a threat to

[55] A structural survey report dated 9 July 1998 includes consideration, at

paragraphs 5.2.1 and 5.2.2 of differential settlement and subsidence, including explanations

as to why these might have occurred, connected to the construction techniques used when

the leisure centre was built, and in particular the use of stone column piles in landfill sites

without bottom feeding the stone into the bore. Another structural survey report, dated

26 July 2001, referred to the report of July 1998, and also to two earlier reports. The report of

26 July 2001 referred to “soft spot locations” in the sports hall store/polygym rear door, the

polygym front wall, and the sports hall corner next to the café. It included the following

“Although monitoring of the building has revealed the on-going building movement

to be very slow, remedial works including mini-piling should be instigated in this

area to prevent further deterioration of the building fabric (Report 3) in the medium

“Therefore this suggests the settlement may have happened during construction and

does not pose a threat to the building’s fabric in the future, however annual surveys

are recommended for walls in this area as large variations in ground water level may

Mr Findlay pointed out that the quotation in the second Millard report from the first of these

[56] The report of 26 July 2001 included conclusions and recommendations in the

“5.1 Increased Frequency of Building Maintenance Inspections – Focusing on ‘Soft

The contour survey has revealed that the building is situated on three ‘soft spots’. It

is recommended that the frequency of the maintenance inspections be increased from

2 years to an annual inspection looking for cracking in the three areas as follows: …”

A further document, a ‘Structural Overview’ from July 2008 included the following:

”It is of the utmost importance to review the structural performance of this building

from its construction in 1977 since this is a key factor in identifying an appropriate

strategy for managing the future structural integrity of the building. Differential

foundation movement still continues resulting in increased distortion/damage of

structural elements inducing stresses for which they are not designed. Various

repairs have been undertaken over the years which have failed or are failing. The

existing foundation system can also be sensitive to external factors such as high

groundwater levels or drying out promoting local accelerated foundation movement.

The report prepared in 2001 by this Dept. recommended that the frequency of

structural inspections should be increased to an annual basis and this should be

implemented without delay. This is necessary since structural damage can be

expected to continue therefore it is crucial that vulnerable areas are identified and

monitored in a consistent and regular fashion as part of the overall future

From the visual inspection undertaken on 25/6/2008 and although there is ongoing

foundation movement resulting in the failure off [sic] previous repairs, I do not feel

there is immediate concern from a structural point of view. It is imperative however,

that the structural defects within this building are carefully monitored on a

structured basis to ensure that no defects propagate to a stage where they may

become potentially dangerous and compromise the safety of the general public and

[57] A further report, entitled “Survey of Foundation Settlement” from October 2010

“The precise levelling points, installed in 2009 have been surveyed in August 2009

The results of this survey, together with a key plan for the survey points, are

Over this 9 month period the maximum settlement recorded is 4mm. This translates

to an annual settlement of over 5mm. The survey highlights the fact that the main

hall is settling at a faster rate than some of the other buildings. The results generally

tie-in with the observed slopes in the floor and changes in level, which have occurred

over the life of the building. The building seems to be settling at a similar rate to the

rate of settlement up to now. It is reasonable to predict that this settlement will

Monitoring of the settlement will continue annually. It is advisable to carry out a

structural survey of the building, to establish that none of the roof or suspended floor

structural members are likely to collapse because of dislodged bearings. The

[58] A letter from Morgan Consulting Civil and Structural Engineers, instructed by

Shepherd Chartered Surveyors on behalf of the respondent, and dated 19 October 2018,

“From our limited inspection we saw no indication of recent dramatic movement.

Movements are not severe, but in places are significantly worse than normally

expected or considered acceptable. Conditions might be expected to continue similar

to existing for some years with some gradual ongoing movement and deterioration,

however no definite assurances would be given, and foundations and future

movement integrity and stability must be considered suspect. Inspection monitoring

is recommended to continue, to ensure safety is not compromised.”

[59] As mentioned above, the first petitioner wrote a letter dated 22 January 2019, which

had been circulated to all councillors, attaching the two Millard reports dated 7 September

and 17 December 2018. The letter represented that the leisure centre was fit for purpose and

[60] I consider that I should approach the content of report 48/19 in a similar way to that

in which a planning officer’s report should be approached. In No Kingsford Stadium Ltd v

Aberdeen City Council and others [2019] CSOH 19, Lord Tyre described that approach at

paragraph 12. The report should be construed in a practical, reasonably flexible and

commonsense way, in the knowledge that it is targeted at parties who are well aware of the

facts and issues: Waterstone Estates Ltd v Welsh Ministers and others [2018] EWCA Civ 1571,

paragraph 11. The question for the court is whether, on a fair reading of the report as a

whole, the planning officer has materially misled the members on a matter bearing upon

their decision, and the error has gone uncorrected before the decision was made: Mansell v

[61] The author of paragraph 4.2 of report 48/19, quoted above, at paragraph 21 was

entitled to summarise the material for the elected members in the way that he did. He was

entitled to characterise the material as reflecting uncertainty regarding the stability of the

foundations, and to identify ongoing costs of maintenance. He was correct to state that

problems had persisted over a protracted period. He was entitled to characterise the

available information as indicating that persistent problems were foreseeable, and as

continuing in the future to a point that the building was no longer serviceable. That opinion

was expressed in the Survey of Foundation Settlement dated October 2010. He referred to a

difference of opinion regarding the serviceable life of the building, which clearly relates in

part to the opinion stated in the second Millard report, and repeated in the first petitioner’s

letter of 22 January 2019, that the building’s future lifespan could exceed 30 years. The

opinion of Millard was more optimistic than that of those providing surveys for the

respondent. It is notable that paragraph 4.1 of report 48/19 included quotation from the

second Millard report, including the passage regarding the building’s possible future

[62] Following the approach described in No Kingsford Stadium, there is nothing in the

way in which the information was put before the respondent in report 48/19 to support the

contention that the respondent made its decision on the basis of any error that is susceptible

“(1) Subject to Part II of the Town and Country Planning (Scotland) Act 1959 and to

subsection (2) below, a local authority may dispose of land held by them in any

(2) Except in accordance with regulations under subsection (2C) below,1 a local

authority shall not dispose of land under subsection (1) above for a consideration less

(a) the best consideration that can reasonably be obtained is less than the

(b) the difference between that consideration and the proposed consideration is

(2B) The Scottish Ministers shall, by regulations, fix the threshold amount and the

(2C) The Scottish Ministers may, by regulations, provide as to the circumstances in

which and procedure by which local authorities may, under this section, dispose of

land for a consideration less than the best that can reasonably be obtained.

(a) requiring a local authority proposing to dispose of land at less than the

best consideration that can reasonably be obtained to appraise and compare

the costs and other disbenefits and the benefits of the proposal;

(b) requiring the local authority, before deciding in favour of the proposal, to

(2E) References in this section to the best consideration that can reasonably be

obtained by a local authority are references to that consideration as assessed by a

[64] This argument fails for much the same reason as does the argument relating to a

decision to dispose under section 104 of the 2015 Act. The duty arises when there is a

disposal. Section 74 does not impose a duty to decide to dispose of land in order to obtain a

consideration. It prohibits disposal for consideration less than the best that can reasonably

be achieved. I do not consider that “dispose” in this provision comprehends “demolish”,

but means alienating, for example by sale or donation. In Waddell “dispose” was given a

broad and purposive construction in the context of common good property which was the

inalienable property of the burgh, and the application of section 75. That is not the context

of section 74. In Waddell the Lord Ordinary, obiter, tentatively expressed a view to similar

[65] The petitioners sought also to formulate this branch of their argument as a failure to

give reasons as to why the best financial outcome or best consideration should not be

sought. They complain that the respondent had not put the leisure centre on the open

market in order to ascertain what price a purchaser might be prepared to offer, or whether a

third party might offer to lease it. The respondent was not, therefore, aware what the best

consideration that might reasonably be achieved was. The petitioners point out that

demolition was a costly option. It was therefore unreasonable or premature to decide to

[66] In the first place, the petitioners did not provide any authority to support the

contention that before determining whether to retain common good land the respondent

required to ascertain what consideration might be achieved for it on disposal. Second, there

is still at common law no general duty to give reasons, and no argument was presented as to

why there was a duty to give reasons in this context. If there is such a duty, it is apparent

from the contents of report 48/19 what considerations were before the respondent at the

meeting of 7 February 2019 in relation to each of the options it was considering, including

the recommendation that it accepted by its decision. Those considerations included the

desirability of maintaining control over the land in question, retaining the land as common

good, and providing a further amenity area as part of the country park. Considerations also

included the delay, cost, and risk of failure associated with any exercise involving disposal

of the land, particularly given the prospect that an application to the court would be

required under section 75(2) of the 1973 Act. These were all matters which the respondent

[67] Similar contentions were presented as a failure to take into account material

considerations, which were said to be the information on the condition of the leisure centre,

the representations by the first petitioner asking for the decision to be delayed, the failure to

place the leisure centre on the open market, and the failure to take into account the best price

that might be achieved before deciding whether or not to demolish the leisure centre. The

formulation of those contentions in that way adds nothing to the submissions which I have

[68] I therefore refuse to grant the orders sought in the petition.

Scottish Court of Session Decisions