Precedents Cited

The judgment extensively referenced historical and contemporary precedents to elucidate the principles governing common good property. Key cases include:

• Brand's Trustees v Brand's Trustees (1876) – Established that structures built on land accrue to the land under the principle "quicquid plantatur solo, solo cedit."
• Magistrates of Banff v Ruthin Castle (1944) – Clarified that accessions to common good property are integral to it and cannot be treated as separate entities.
• Waddell and Others v Stewartry District Council (1977) – Emphasized a broad interpretation of "disposal" to include demolition, as it deprives the community of communal assets.
• Crawford v Magistrates of Paisley (1870) – Asserted that inalienable common good property cannot be demolished without judicial authority unless in cases of imminent danger.
• Portobello Park Action Group v City of Edinburgh Council (2013) – Rejected attempts to segregate buildings from common good land through notional accounting practices.

These precedents collectively reinforce the principle that common good property, including its structures, should remain unalienable without appropriate legal oversight and community consultation.

Legal Reasoning

The core of the judgment revolves around interpreting section 104 of the Community Empowerment (Scotland) Act 2015, which mandates consultation when a local authority contemplates disposing of or changing the use of common good property. The analysis focused on two main aspects:

• Disposal Defined Broadly: Lord Menzies interpreted "disposal" expansively, encompassing demolition as a form of disposing of property, thereby requiring the Council to adhere to the consultation process.
• Understanding Change of Use: Both opinions examined whether demolishing a building alters the property's use. Lord Menzies affirmed that returning the land to open parkland from a leisure center constitutes a "change of use," thus engaging section 104. In contrast, Lord Malcolm argued that such demolition does not amount to a change of use within the statutory context, maintaining that the park remains dedicated to leisure and recreation.

The diverging opinions highlight different interpretations of statutory language and the extent to which historical common law principles influence modern legislative frameworks. Lord Menzies emphasized the community's right to be consulted when communal assets undergo significant alterations, while Lord Malcolm focused on the administrative nature of the Council's decision.

Impact

Should Lord Menzies' interpretation prevail, the judgment sets a robust precedent requiring local authorities to engage in transparent consultation processes before undertaking any action classified as disposal or change of use of common good property. This would enhance community involvement and safeguard communal rights, potentially leading to increased administrative oversight and delayed decision-making processes due to mandatory consultations.

Conversely, Lord Malcolm's dissent suggests a more restrained approach, allowing local authorities greater discretion in managing common good property without the need for extensive consultation unless there is a clear and direct alteration of the property's fundamental use. This perspective promotes administrative efficiency but may reduce community influence over local assets.

Overall, the judgment underscores the tension between effective local governance and the protection of communal interests, shaping future litigation and policy-making in the realm of common good property management.

Common Good Property

Common Good Property refers to land and assets maintained for the collective use and benefit of a community, particularly within Scottish burghs. These properties are inalienable, meaning they cannot be sold or disposed of without strict legal procedures, ensuring they remain dedicated to public use.

Disposal

Disposal in this context refers broadly to the act of getting rid of property. This can include selling, gifting, leasing, or demolishing structures on common good land. The judgment debates whether demolishing a building like the Lochside Leisure Centre falls under this definition.

Change of Use

Change of Use entails altering the function or purpose of a property. For instance, converting a leisure center into open parkland changes the property's use from providing indoor recreational facilities to maintaining open space for general leisure activities.

Section 104 of the Community Empowerment (Scotland) Act 2015

Section 104 mandates that local authorities must consult with relevant community bodies before disposing of or changing the use of common good property. This ensures transparency and community involvement in decisions affecting communal assets.