Introduction

The case of Mark Guild & Another v Angus Council ([2020] CSOH 16) presents a significant examination of procedural compliance within local authority decision-making processes in Scotland. The petitioners, Mark Guild, a property developer, and another unnamed party, challenged the decision of Angus Council to demolish the Lochside Leisure Centre in Craig O'Loch, Forfar. Central to their challenge were allegations of procedural irregularities, including failure to adhere to the council's standing orders and statutory requirements under various Acts, notably the Community Empowerment (Scotland) Act 2015 and the Local Government (Scotland) Acts of 1973 and 1994.

Summary of the Judgment

Lady Carmichael delivered the judgment of the Scottish Court of Session, Outer House, dismissing the petitioners' claims. The court found that Angus Council had reasonably complied with its procedural obligations, including the recording of special circumstances justifying the urgent consideration of the leisure centre's demolition. The judgment emphasized that the council's decision to treat the matter as urgent did not constitute a breach of procedural requirements, as adequate reasons were provided in the relevant reports and minutes. Additionally, the court held that the demolition did not engage the provisions of the Community Empowerment (Scotland) Act 2015 or the Local Government (Scotland) Act 1973 concerning the disposal or change of use of common good property.

Analysis

Precedents Cited

The judgment references several key cases that informed the court's reasoning:

• Chief Constable, Lothian and Borders Police v Lothian and Borders Police Board (2005 SLT 315): This case highlighted the necessity of providing adequate reasons when a public authority departs from normal procedures, establishing a benchmark for assessing procedural fairness.
• Waddell and others v Stewartry District Council (1977 SLT (Notes) 35): Addressed the scope of "dispose" in the context of common good property, emphasizing that demolition could not be considered a disposal without court authorization if the property was deemed inalienable.
• No Kingsford Stadium Ltd v Aberdeen City Council and others [2019] CSOH 19: Provided guidance on interpreting reports prepared by public authorities, advocating for a practical and commonsense approach in judicial review.
• Mansell v Tonbridge and Malling Borough Council [2018] JPL 176 (CA): Reinforced the standard for determining whether a planning officer's report materially misled decision-makers, relevant for assessing the accuracy and fairness of the council's reports.

Legal Reasoning

Lady Carmichael's legal reasoning can be distilled into several key points:

• Compliance with Standing Orders: The council acted within its rights to consider the demolition as an urgent matter, given the ongoing costs and potential risks associated with maintaining an unused building. While the petitioners contended that the special circumstances were inadequately recorded, the court found that the reports and minutes sufficiently elucidated the reasons for urgency.
• Statutory Provisions: The court meticulously analyzed whether the demolition engaged sections 104 of the Community Empowerment (Scotland) Act 2015 or sections 74 and 75 of the Local Government (Scotland) Act 1973. It concluded that the demolition did not equate to a disposal or change of use of common good property, thereby not triggering the statutory requirements for consultation or best value considerations.
• Definition of "Dispose": The judgment clarified that in the context of section 74 of the 1973 Act, "dispose" pertains to alienating property (e.g., through sale or donation) rather than demolition. This distinction was pivotal in determining that the statutory duty under section 74 was not breached.
• Adequacy of Reasons: Addressing the core of the petitioners' argument, the court evaluated whether the reasons provided for the urgent decision were sufficient to satisfy procedural fairness. It held that the combination of the council's reports and minutes provided a clear and comprehensible basis for the decision, negating claims of inadequate reasoning.
• Material Considerations: The petitioners alleged that the council failed to consider relevant factors, such as the structural integrity reports favoring demolition. The court, however, determined that the council had appropriately weighed these considerations within the reports, and no material factors were omitted.

Impact

This judgment reinforces the importance of procedural adherence and adequate record-keeping in local authority decision-making. It underscores that while public bodies must observe standing orders and statutory requirements, reasonable discretion is afforded in interpreting and applying these rules, provided that sufficient rationale is documented. Future cases involving judicial reviews of local authority decisions can draw on this precedent to assess the adequacy of procedural compliance and the sufficiency of reasons provided for urgent actions.

Complex Concepts Simplified

Conclusion

The Mark Guild & Another v Angus Council [2020] CSOH 16 judgment serves as a critical reminder of the balance between procedural rigor and practical discretion in local governance. By dismissing the petitioners' claims, the court affirmed that Angus Council had appropriately navigated the complexities of statutory requirements and internal procedures. The decision emphasizes the necessity for local authorities to maintain thorough records and provide clear, rational explanations when deviating from standard procedures, especially in urgent matters. This case will undoubtedly inform future judicial reviews, guiding both public bodies and petitioners in understanding the nuances of procedural compliance and the boundaries of lawful authority in decision-making processes.

Furthermore, the judgment delineates the scope of key legislative provisions, clarifying the thresholds at which specific statutory obligations are triggered. By elucidating the interpretation of "dispose" within the context of the 1973 Act and the non-applicability of the 2015 Act in this scenario, the court provides valuable legal guidance that enhances the predictability and consistency of administrative law in Scotland.