Section 75(2) Common Good Land: Contractor Licensing as “Disposal” and Pavement Works as “Appropriation”, with Planning Permission as a Supporting Factor

1. Introduction

In Petition of Moray Council for Authority under section 75(2) of the Local Government (Scotland) Act 1973 [2026] CSOH 58, the Outer House (Lord Summers) considered a local authority’s petition seeking judicial authority under section 75(2) of the Local Government (Scotland) Act 1973 to use land forming part of its common good at Roysvale Park, Forres (“the Park”).

The petitioner (a local authority) had planning permission for a replacement school on adjacent playing fields. To facilitate construction, it proposed:

  • a temporary contractors’ storage/compound and parking area within the Park (“the Storage Area”), occupying about 40% of the Park for around 4 years before reinstatement; and
  • a permanent pavement enlargement/bus drop-off and improved pedestrian access (“the Pavement”), permanently removing about 10% of the common good land from the common good.

Although the petition was unopposed in formal procedure (no answers lodged), there was significant community correspondence and a detailed written submission from a local concerns group. A key practical driver was the asserted unsafe condition of the existing school due to RAAC construction.

2. Summary of the Judgment

The court granted authority under section 75(2) for both elements of the proposal. Lord Summers held, on the submissions presented, that:

  • temporarily licensing the Storage Area to contractors was properly characterised as a “disposal” for section 75 purposes (not merely ordinary administration), given the scale, duration, and change of use; and
  • permanently transferring the Pavement strip out of the common good was an “appropriation” to a different purpose, achievable (as explained by the petitioner) by accounting reclassification from the common good account to the general account, without needing a disposition “to itself.”

In exercising discretion, the court regarded delivery of a new school as a substantial public benefit aligned with common good purposes, viewed the temporary loss of park use as proportionate, considered the Pavement a safety/access improvement serving the community, and drew supportive comfort from the fact that the planning authority had already assessed amenity impacts and imposed mitigation conditions.

3. Analysis

3.1 Statutory Framework: Section 75 and the Court’s Discretion

Section 75 distinguishes between (i) common good land where no question arises as to alienation (section 75(1)) and (ii) land where a question does arise (section 75(2)), requiring court (or sheriff) authority to “appropriate or dispose” subject to conditions. Section 75(3) permits a condition requiring substitution land.

Lord Summers treated the petition as engaging section 75(2) due to local opposition and the resulting “question” over alienation. The judgment emphasises the breadth of the court’s discretion: the court may grant or refuse and may impose conditions, but need not do so if satisfied existing safeguards adequately address impacts.

3.2 Treatment of Public Correspondence in an Unopposed Petition

Even though the correspondence was “not formally before the court,” Lord Summers took it into account to inform the discretionary assessment, recognising the public-interest character of common good land. This reflects a pragmatic approach: where common good assets and local amenity are at stake, the court may consider stakeholder representations to understand context and impacts, even absent formal opposition.

3.3 Interaction with Other Statutory Processes: Planning and Consultation Duties

A continuation hearing was required because, at the first hearing, the petitioner had not completed consultation under Town and Country Planning (Scotland) Act 1959 section 27A (advertisement/consideration of objections where disposal/appropriation concerns common or open space). The judgment thus illustrates that section 75(2) authority may run alongside (and should not be used to bypass) other statutory procedural protections.

The court also noted consultation material under the Community Empowerment (Scotland) Act 2015 as part of the factual matrix, albeit without turning that exercise into a determinative legal test.

3.4 Precedents Cited and Their Role

3.4.1 Ordinary Administration/Management vs Section 75 “Disposal”

The petitioner relied on classic common good authorities distinguishing ordinary management from transactions requiring judicial authorisation:

  • John Paterson and Others v Magistrates and Town-Council of St Andrews (1880) 7 R 712 at 725 and 726 (acts of “fair and reasonable administration” / “pure acts of ordinary and reasonable administration” do not require court intervention); and
  • East Lothian District Council v National Coal Board 1982 S.L.T 460 at 467 (distinguishing “acts of management” from alienations/disposals engaging stricter controls).

Lord Summers used these authorities as the conceptual baseline, but concluded that the proposed contractor licence went beyond “management”: it introduced a new legal and practical status for the land (exclusive/controlled contractor use), involved a significant change of use, and endured for a substantial period. That combination justified treating the licence as a “disposal” requiring section 75 authority.

3.4.2 Appropriation as Change of Purpose (and the Accounting Point)

On “appropriation,” the court accepted the submission that the relevant step was not a conveyancing act but a change of purpose and internal reallocation: moving the land from the common good account to the general account. The judgment is notable for confirming, in this factual setting, that appropriation for section 75 may be implemented through local authority accounting treatment rather than a self-disposition.

The court also noted (without making it a condition) a possible payment into the common good account to reflect the permanent removal of land, describing such a step as potentially “fortifying” but not necessary to grant authority.

3.5 Legal Reasoning: Exercise of Discretion Under Section 75(2)

The court’s balancing exercise turned on proportionality and public benefit:

  • Public benefit and alignment with common good purposes: A replacement school was treated as a strategic community benefit consistent with the ethos of common good land (“benefit Forres”).
  • Temporary nature of the Storage Area: Taking approximately 40% of the Park out of use for roughly 4 years (with reinstatement and reseeding) was considered a “modest price” for long-term benefit.
  • Nature of the permanent Pavement appropriation: Although some land would be permanently removed from common good, the court considered the new pavement and bus drop-off as improving access and safety—serving the community “in a different way” and affecting mainly the park edge.
  • Alternatives: Objectors’ preferred alternative site was not shown to be a viable rival on the information before the court.

3.6 Planning Permission as a Supporting (Not Determinative) Consideration

A central feature of the reasoning is the court’s nuanced treatment of planning:

  • Lord Summers accepted that the section 75(2) decision is a different exercise and that planning permission does not compel the court to authorise appropriation/disposal.
  • However, the court stated it could “draw comfort” from the planning authority’s prior, expert assessment of local amenity impacts, including the known extent of common good encroachment, and the planning conditions addressing flooding, noise, and other concerns.
  • The judgment suggests a practical approach: where a project pursues a valuable public objective and planning mitigation is in place, the court should be “slow to stand in its way,” absent compelling contrary reasons.

3.7 Impact and Significance

The decision is likely to be cited for several operational points in common good governance:

  • Contractor licences can be “disposal”: Even time-limited arrangements may require section 75 authority where they materially change use, confer substantial control, and endure for a significant period.
  • Appropriation may be implemented administratively: The court accepted that appropriation of common good land to another local-authority purpose may be effected via accounting reclassification, rather than conveyancing formalities.
  • Planning as evidential support: While not binding, planning permission (and accompanying conditions) can materially support the section 75(2) discretionary calculus, especially on amenity and mitigation.
  • Correspondence may inform discretion: In public-interest common good matters, the court may consider informal representations to understand the spectrum of concerns.

For local authorities, the case reinforces the value of: completing statutory consultation steps; presenting clear option appraisals; evidencing reinstatement commitments for temporary occupation; and explaining precisely how appropriation/disposal will be implemented in legal and accounting terms.

4. Complex Concepts Simplified

  • Common good land: Property held by a local authority for the benefit of the local community, historically rooted in burgh assets. It is not simply “council-owned land”; special duties and restrictions apply to protect community benefit.
  • Alienation: A broad concept covering transferring away rights or control over property (not just sale), including leases/licences where they meaningfully affect use/control.
  • Appropriation (section 75): Changing the purpose for which land is held/used (here, moving a strip from recreational park use/common good to general road/pavement infrastructure).
  • Disposal (section 75): Parting with rights in land (here, granting contractors a licence to occupy/use a large part of the park as a compound for years).
  • Section 75(3) substitution: The court can require replacement land to be provided for the same purpose, but it is discretionary and not automatic.

5. Conclusion

[2026] CSOH 58 confirms a robust, fact-sensitive application of section 75(2): significant temporary contractor occupation of common good land may be a “disposal,” permanent infrastructure works may be an “appropriation,” and—while distinct from planning—the court may place weight on the planning authority’s expert amenity assessment and mitigation conditions when deciding whether to authorise common good interference for major public projects.