West Lothian Council for authority under section 75(2) of the Local Government (Scotland) Act 1973 (Court of Session)

Factual and Procedural Background

Company A (Petitioner) owns Common Good Property comprising a recreation ground (Property B) and an attached pavilion (Property A). Company A sought the Court's authority under section 75(2) of the Local Government (Scotland) Act 1973 to grant a 5-year community benefit lease of Property A to Company B (proposed tenant) at a nominal rent and on terms shifting repair, maintenance and running costs to Company B. Property A has been informally used since 2011 by Company C (a weightlifting club) occupying two of four changing rooms. Company D (a community management committee) lodged answers opposing the petition; it did not participate at the hearing but asked its answers to be considered. The petition followed consultation carried out under the Community Empowerment (Scotland) Act 2015, with multiple representations for and against. Judge [Last Name] heard the petition and delivered the opinion.

Legal Issues Presented

1. Whether the court should, in exercise of its discretion under section 75(2) of the Local Government (Scotland) Act 1973, authorise Company A to grant a community benefit lease of Property A to Company B.
2. Whether the consultation carried out under sections 104 and 105 of the Community Empowerment (Scotland) Act 2015 was adequate and regular for the purposes of authorising the disposal.
3. Whether any conditions should be imposed on the grant of the lease to protect public use of the Common Good Property and to restrict change of use.

Arguments of the Parties

Company D's Arguments

• The consultation was improper and biased because the petitioner consulted only on the proposal to lease to Company B and did not present competing proposals or a neutral report to councillors.
• The status quo should prevail; Company C's long-standing informal use should be preserved.
• Granting the lease would give Company B de facto control of the park and reduce public access.
• Historical promises made in 2011 to accommodate Company C made the proposed displacement unfair.
• The proposal divided the community; the pavilion should be shared or managed by a charity/community body (Company D offered to manage it).
• Other community bodies and residents objected; the petition appears to have been "bulldozed" through without proper compromise.
• The intended use by Company B was vague and might lead to conversion into a clubhouse; consultation lacked development plans.

Company A's Submissions

• Company A complied with sections 104 and 105 by publishing and notifying the proposal and permitting representations over the statutory 8-week period.
• Continuing the status quo was not feasible because Company A required savings and could not continue to fund the pavilion; no viable alternative funding plan was offered by Company D.
• Company B would improve and modernise Property A, increase community benefit and make it available for community activities; Company B supplied supporting vouching and evidence of public support.
• Objections about control of the pitches were factually incorrect; Company B would control booking of the pavilion only, while pitches would remain booked through Company G (a leisure trust) under Company A's control.
• Company A accepted that the court should impose lease conditions requiring public access as part of the community benefit and prohibiting change of use.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasising that the petition related only to Property A (the pavilion) and not to Property B (the recreation ground), and that control of access to the pitches would remain with Company A (administered via Company G). The court analysed the adequacy of the consultation under sections 104–105 of the 2015 Act and held that, although consultees may be assisted by being informed of other options, there was no material flaw: the community was aware of the relevant background and no viable alternative proposal had been advanced. The court rejected challenges to the mechanics and duration of consultation.

The court addressed misconceptions that the lease would give Company B control of the pitches and found those to be factually incorrect. On the substance of community benefit, the court accepted Company A's factual case that Company B's lease offered the best prospect of modernising the pavilion and increasing public benefit, noting Company B's charitable status and evidence of public support. Concerns that Company C would be unfairly displaced were considered: the court acknowledged Company C's long informal occupation but found that informal, permanent occupation of two changing rooms by fixed weightlifting equipment was an under-utilisation incompatible with the pavilion's design and potential community benefit. The court noted the extensive efforts by Company A to seek compromise and alternative accommodation, none of which were viable.

Where legitimate risks of misuse or conversion to a private clubhouse arose, the court held those could be addressed by conditions in the lease. Overall, applying the wide discretionary approach under section 75(2) (as explained in the cited authorities), the court concluded that authorisation should be granted subject to suitable conditions to protect public access and use.

Holding and Implications

Holding: The court authorised Company A to grant the proposed 5-year community benefit lease of Property A to Company B, subject to the addition of two conditions in the lease:

• GRANTED — the lease must require Company B to make Property A available to members of the public who wish to use it as changing rooms for the grass pitches as part of the community benefit; and
• The lease must prohibit Company B from changing the use of Property A and require continued use as changing rooms for those using the adjacent grass pitches.

Implications: The direct effect is that Company A is authorised to enter into the community benefit lease to Company B on the stated terms with the two conditions. No expenses were awarded to or against any party. The opinion did not purport to establish a new legal precedent; it applied the court's established wide discretion under section 75(2) to the facts of this petition.