Common Good Disposals: Court Approval of Community Benefit Leases with Conditions Ensuring Public Access and No Change of Use

1. Introduction

West Lothian Council petitioned the Outer House of the Court of Session for authority under section 75(2) of the Local Government (Scotland) Act 1973 to grant a five-year community benefit lease of Meadowpark Pavilion, a building forming part of the Common Good of Bathgate. The intended tenant was Bathgate Thistle Community Football Club (BTCFC).

The Pavilion sits within Meadowpark recreation ground and was built in the 1990s primarily to provide changing facilities for the adjacent grass football pitches. Controversy arose because Bathgate Amateur Weightlifting Club (BAWC), affiliated to Bathgate Community Centre Management Committee (BCCMC), had used two changing rooms informally since 2011 to store and use heavy, largely immovable equipment. BTCFC maintained that shared use was impracticable, citing safeguarding, logistics, and the loss of two changing rooms.

The core issues were:

  • whether the Council’s consultation under the Community Empowerment (Scotland) Act 2015 was adequate;
  • whether granting a lease to BTCFC would best serve the Common Good, given objections that it would exclude other community use and displace BAWC;
  • what protective conditions, if any, the court should attach to authorisation under section 75(2).

2. Summary of the Judgment

Lord Braid granted authority for the lease, finding the proposal reasonable and conducive to continued (and potentially enhanced) community benefit. The court rejected allegations of materially flawed consultation and misconceptions that BTCFC would control the recreation ground or pitch bookings.

Crucially, authorisation was granted subject to two conditions to be written into the lease:

  1. Public availability condition: BTCFC must make the Pavilion available to members of the public who wish to use it as a changing room for the grass pitches, as part of the community benefit.
  2. No change of use condition: BTCFC may not change the use of the Pavilion; it must continue to be used as changing rooms for those using the grass pitches.

No award of expenses was made against any party.

3. Analysis

3.1 Precedents Cited

East Lothian District Council v National Coal Board 1982 SLT 460

Lord Braid relied on the interpretive clarification given by Lord Maxwell on section 75(2), quoted at paragraph [8]:

“... Parliament has conferred on the court, a wide and unfettered discretion to authorise disposal where common good land has the quality of inalienability or where it appears that it may have that quality...”

This passage matters for two reasons reflected in Lord Braid’s approach:

  • Trigger and scope of the court’s function: the court is not confined to resolving technical title questions first; it may authorise disposal where inalienability is, or may be, in issue.
  • Rights-sensitive posture: the court should proceed on the assumption that any inalienability question would favour inhabitants, and should then evaluate the disposal in light of the nature of the public’s rights. Here, that rights-sensitive posture manifested in the court’s insistence on lease conditions preserving public changing access and preventing conversion into a private clubhouse.

West Dunbartonshire Council v Harvie 1998 SCLR 639

This Inner House authority is cited as having approved Lord Maxwell’s approach. Its influence in the present case lies in reinforcing that the court’s discretion under section 75(2) is wide and that protective conditions are a legitimate mechanism for balancing alienation with the inhabitants’ interests.

Lord Braid’s decision is consistent with that framework: rather than refuse authority because of community division or competing claims, the court authorised the disposal while tailoring conditions to preserve the Common Good character of the asset’s use.

3.2 Legal Reasoning

(a) Statutory framework: section 75(2) and the 2015 Act duties

The Council accepted the proposed lease was a “disposal” requiring section 75(2) authority. The court treated section 104 consultation as a significant procedural safeguard, but not as an end in itself: the ultimate question remained whether, exercising the section 75(2) discretion, authorisation should be granted and on what conditions.

(b) Consultation: “only the chosen proposal” vs meaningful background context

A notable feature of the opinion is Lord Braid’s nuanced treatment of consultation adequacy (paragraph [30]). While agreeing that section 104 requires consultation on the proposal the authority is considering (here, the lease to BTCFC), he observed that:

“...depending on the precise circumstances, a meaningful and informed consultation on that proposal can take place only if those consulted know what other options might have been on the table...”

This is not a blanket duty to consult on all alternatives. Rather, it is an evaluative point: the adequacy of consultation may depend on whether consultees had sufficient context to understand the consequences and trade-offs of the authority’s preferred course. On the facts, the court held the community was well aware of the key competing interest (BAWC’s informal occupation) and that no other viable proposal existed. Accordingly, consultation was not materially flawed.

(c) Correcting misconceptions about control of the recreation ground

Many objections assumed leasing the Pavilion would give BTCFC control over the park and pitch bookings. The court treated this as a decisive factual misconception (paragraphs [29] and [31]): the lease related only to the Pavilion; pitch bookings remained with the Council (via Xcite), and events like the annual gala were not endangered.

(d) Community benefit and the legitimacy of “benefit to a section of the community”

Lord Braid addressed the contention that BTCFC’s benefit was not community benefit. He reasoned that BTCFC is a charitable community sports club largely serving local young people, and that benefit to a section of the community can still be a proper Common Good benefit (paragraph [32]). He analogised this to other traditional uses of common land (e.g., golf), and emphasised that the proposed lease was explicitly framed as a community benefit lease, not a purely commercial disposal.

(e) Fairness to BAWC and the limits of informal, long-standing use

The court accepted BAWC’s lengthy presence, but treated its occupation as informal and not the original purpose of the Pavilion (paragraph [33]). It weighed:

  • the opportunity cost of two changing rooms being effectively unavailable for changing;
  • the Council’s efforts to find alternatives and broker compromise; and
  • BAWC’s rejection of a funded gym membership option.

The conclusion was that authorisation was not inherently unfair to BAWC, particularly where the Pavilion’s designed function was changing provision for pitch users.

(f) Conditions as the bridge between disposal and Common Good protection

The judgment’s operative legal technique is the imposition of conditions to secure the public interest:

  • Public access (availability as changing rooms) directly protects the community’s practical enjoyment of the recreation facility.
  • No change of use prevents “mission creep” from changing rooms to a closed clubhouse model, addressing a central fear among objectors (paragraph [34]).

This illustrates the court’s willingness to authorise alienation while embedding enforceable guardrails within the disposal instrument itself.

3.3 Impact

(a) Consultation challenges under section 104: context matters

The opinion signals that, although consultation may formally focus on the authority’s intended proposal, authorities should consider what contextual information is necessary for consultees to understand the real implications. Where competing options exist or are publicly advanced, a “meaningful and informed” consultation may require explaining why alternatives are not being pursued. Practically, this encourages more transparent reporting to reduce the risk of consultation-based objections later in section 75(2) proceedings.

(b) Community benefit leases as a viable tool for Common Good assets

The decision affirms that a community benefit lease—where the tenant assumes cost and maintenance burdens in exchange for reduced rent—can be compatible with Common Good stewardship, especially under fiscal pressure, provided the public interest is protected through conditions and monitoring (here, annual engagement on community benefit calculations was noted in the Council’s decision-making).

(c) Conditions likely to be sought (and expected) in future section 75(2) petitions

The court’s acceptance of conditions proposed by the Council (public availability and no change of use) may shape expectations in future petitions involving pavilions, parks, or similar amenity assets: petitioners may proactively draft such protections into heads of terms to demonstrate alignment with Common Good obligations and to neutralise common objections about exclusion and privatisation.

4. Complex Concepts Simplified

  • Common Good property: assets historically held for the benefit of the inhabitants of a burgh/town. Local authorities manage them, but do not hold them like ordinary private property; special duties and constraints apply.
  • Section 75(2) authorisation: a court procedure allowing a council to dispose of (sell, lease, appropriate) Common Good land when there is (or may be) doubt about its power to do so—especially where the land may be “inalienable.”
  • Inalienability (in this context): the idea that certain Common Good property, particularly land dedicated to public use (parks, recreation), cannot readily be disposed of without proper authority and justification.
  • Community benefit lease: a lease where the rent is reduced/waived because the tenant provides non-financial community benefits (e.g., improved facilities, community access), and typically assumes repair, maintenance, and running costs.
  • Section 104 consultation (2015 Act): a statutory requirement to publish details of proposed disposal/change of use of Common Good property, notify relevant community bodies, invite representations, and have regard to them before deciding.

5. Conclusion

Lord Braid’s opinion reinforces the court’s “wide and unfettered discretion” under section 75(2), while showing how that discretion can be exercised to protect the public character of Common Good property through targeted lease conditions. The judgment’s most practically significant points are:

  • consultation is not necessarily defective for failing to consult on every alternative, but it must be meaningful and may require enough context for informed engagement;
  • misconceptions about “privatisation” can be decisive; the court will focus on the actual legal effect of the disposal (here, Pavilion only, not pitches/park);
  • community benefit can include benefit to defined sections of the community (such as youth sports participants), particularly where charitable/community structures exist;
  • conditions requiring public availability and preventing change of use are powerful tools to reconcile leasing with Common Good obligations.