Legal challenge against council’s decision to demolish leisure centre fails
A property developer who claimed that a Scottish local authority’s decision to demolish a leisure centre was “unlawful” has had his legal challenge dismissed.
A judge in the Court of Session refused a petition for judicial review by Mark Guild, who was seeking reduction of the decision by the respondent Angus Council to demolish the Lochside Leisure Centre in Forfar.
Lady Carmichael heard that in May 2018 the council’s policy and resources committee considered a report which recommended that the leisure centre be declared surplus to requirements and be demolished, with the land reinstated, because it was no longer being used following the development of another facility in February 2017.
Mr Guild, the first petitioner, expressed concern that the council had not appreciated the potential for continued use of the leisure centre, following which he and others were given permission to inspect the centre with a view to making a proposal for its continued use.
Various investigations followed, with engineers and contractors visiting the site in the latter half of 2018 and producing reports for the petitioners.
In January 2019 the local authority sent a letter to the petitioners and others who had expressed an interest in the centre inviting them to inspect the building.
Following the visit, on 30 January 2019 the second petitioner offered to purchase the centre, but just over a week later, on 7 February 2019, a meeting of the full council voted by a majority of 13 to 8 to accept a recommendation in a report by its head of infrastructure that the leisure centre should be demolished with the common good land lying beneath reinstated to extend the park.
The report had not appeared on the publicly available agenda for the meeting - it was added as an urgent item in accordance with the provisions of the council’s standing orders - but the first petitioner had been made aware in advance and was able to attend to make representations, although the second petitioner was abroad at the time and unaware of the matter.
The petitioners sought judicial review, arguing that the respondent’s decision was “unlawful”.
It was submitted that the respondent failed to follow its own Standing Orders; it had not placed the item concerning the leisure centre on the agenda, and it had not recorded in the minutes of the meeting the special circumstances on the basis of which the provost had concluded that the matter required urgent consideration.
The second petitioner would have made representations if he had received notice and been able to attend the meeting, and would have asked for the decision to be postponed with an opportunity for the public to participate or to clarify any concerns the council had about his offer.
It was also argued that the local authority had failed to comply with its duties under section 104 of the Community Empowerment (Scotland) Act 2015, which imposed a “duty to consult” when considering disposing or changing the use of any property held as common good land
The petitioners further submitted that the council failed to comply with its duty under section 74 of the Local Government (Scotland) Act 1994 not to dispose of land for a consideration that is less than the best that can reasonably be obtained.
The respondent had not taken any steps – such as placing the leisure centre on the open market for sale – to ascertain what a purchaser might pay for it, meaning its decision was not supported by reasons that were adequate in law, and was “unreasonable” so far as “best value” considerations were concerned.
Dismissing the petition, the judge did not consider that the decision to deal with the matter urgently was unreasonable.
In a written opinion, Lady Carmichael said: “While it might have been open to a decision maker reasonably to conclude that matters could be deferred… I consider that it was reasonably open to the provost, having regard to the matters I have already referred to as being disclosed in the report to decide that the item of business ought to be dealt with urgently.”
She continued: “Whether a particular decision as to the use to which property is put amounts to a change of use which will engage section 104 is a mixed question of fact and law which will require to be considered on the basis of the facts and circumstances arising in any particular case.
“It must be doubtful whether Parliament intended that every type of change of use - for example the substitution of a tennis court in a park with a basketball court - would engage section 104. I accept the analysis proffered by the respondent. The common good land is presently used for leisure purposes, and that will remain the case after the building has been demolished.”
On the duty to obtain “best value” the judge added: “This argument fails for much the same reason as does the argument relating to a decision to dispose under section 104 of the 2015 Act. The duty arises when there is a disposal. Section 74 does not impose a duty to decide to dispose of land in order to obtain a consideration. It prohibits disposal for consideration less than the best that can reasonably be achieved.
“In the first place, the petitioners did not provide any authority to support the contention that before determining whether to retain common good land the respondent required to ascertain what consideration might be achieved for it on disposal. Second, there is still at common law no general duty to give reasons, and no argument was presented as to why there was a duty to give reasons in this context. If there is such a duty, it is apparent from the contents of report 48/19 what considerations were before the respondent at the meeting of 7 February 2019 in relation to each of the options it was considering, including the recommendation that it accepted by its decision.
“Those considerations included the desirability of maintaining control over the land in question, retaining the land as common good, and providing a further amenity area as part of the country park. Considerations also included the delay, cost, and risk of failure associated with any exercise involving disposal of the land, particularly given the prospect that an application to the court would be required under section 75(2) of the 1973 Act. These were all matters which the respondent was entitled to take into account.”