Sheriff Philip Mann

In Summary Application

Under section 75(2) of the Local Government (Scotland) Act 1973


Aberdeenshire Council, incorporated under the Local Government etc. (Scotland) Act 1994 and having a place of business at Woodhill House, Westburn Road, Aberdeen, AB16 5GB


Authority to Sell Ground Forming Part of the Common Good


Banff    December 2014

The sheriff, having resumed consideration of the cause, repels the applicant’s first plea in law and refuses to authorise the applicant to dispose of the part of the common good of Banff and Macduff to the north of Battery Green, Banff extending to approximately 135 square metres; meantime reserves the question of expenses and appoints parties to be heard thereon within the Sheriff Court, Low Street Banff on 30 January 2015 at 10:00am





1.         Introduction

1.1       This is a summary application by Aberdeenshire Council for authority to dispose of 135 square metres of ground at Battery Green, Banff.  In the crave of the application it is suggested that the ground forms part of the common good of Banff and Macduff, although it would appear from the condescendence that it forms part of the common good of Banff.

1.2       The application is brought under section 75(2) of the Local Government (Scotland) Act 1973 which provides:

“Where a local authority desire to dispose of land forming part of the common good with respect to which land a question arises as to the right of the authority to alienate, they may apply to the Court of Session or the sheriff to authorise them to dispose of the land, and the Court or sheriff may, if they think fit, authorise the authority to dispose of the land subject to such conditions, if any, as they may impose, and the authority shall be entitled to dispose of the land accordingly.”

1.3       The purpose of the application is to allow the applicants to sell the ground to an entity named Bremner’s 65th General Stores (hereafter referred to as “Bremners”) of Battery Green, Banff.  Bremners are said to have used the ground as a car park for approximately 30 years, to have developed and maintained the ground for that purpose and to have acquired a prescriptive servitude right for vehicular and pedestrian access over the ground.  The applicants have entered into missives with Bremners agreeing to sell them the ground at a price of £10,000 but conditional upon this application being successful.

1.4       The people of Banff and Macduff were given notice of the application by newspaper advertisement, by advertisement on the ground and by display on the walls of court.  The application was also served on Bremner’s 65th General Stores, Battery Green, Banff.

1.5       Bremners have not entered the process.  The application is opposed by several residents of Banff and by Banff and Macduff Community Council.  Although Banff and Macduff are separate towns and were once separate burghs I understand that they are, generally or at least in many respects, regarded as being part of one joint community, as is evidenced by the fact that there is a single community council serving them both together.  They share amenities such as the hospital which is situated in Banff.

1.6       In the end, the interests of the people of Banff and Macduff, including those individuals who have opposed the application, have been represented by the community council.  After sundry procedure a diet of debate was fixed for 20 November 2014, it having been agreed that there was no need for any evidence to be led and that the matter could be resolved on the basis of submissions.

1.7       At the debate the applicants were represented by Miss McKearney, Solicitor.  Mr Ian Williams, a layman and the secretary of the community council, also appeared.  Miss McKearney took no exception to Mr Williams addressing the court, notwithstanding the rule that non natural persons, such as the community council, may only appear through a legally qualified representative having a right of audience.  Having regard to the nature of the proceedings and to the stage they had reached I, likewise, took no exception to Mr Williams’ appearance.  On one view, as a resident within the Banff and Macduff community he was entitled in his own right to oppose the application and to make representations as a party litigant.

2.         Submissions

2.1       Miss McKearney helpfully lodged written submissions.  Equally helpfully, Mr Williams referred to written materials that had been lodged under cover of a letter signed by himself in his capacity as secretary of the community council.  These materials referred to various objections to the disposal of the ground.

2.2       Parties were agreed that the ground was part of the common good and that section 75(2) of the 1973 Act applied on the basis that there was a question as to whether or not the applicants had a right to alienate it.  Accordingly, I was not asked to decide that particular issue and no detailed submissions were made in relation thereto.

2.3       Parties were agreed that the ground in question had been surfaced by Bremners and that it had been used as a car park, accommodating up to seven vehicles, by customers visiting Bremners’ adjacent shop for a period in excess of 30 years.  They were agreed that the ground had been used for at least the same period for car parking both by local residents and by visitors to the nearby hospital and health centre.  They were agreed that Bremners no longer operated a shop adjacent to the ground.

2.4       Whilst Miss McKearney accepted that the ground has been used as a car park by members of the public she maintained that this had only been possible over the last 30 years since Bremners had surfaced it for the benefit of their customers.  She maintained that Bremners had gone to that expense in the erroneous belief that they owned the ground along with their adjacent shop premises.  She acknowledged, as was maintained by Mr Williams, that the ground was close to the hospital and health centre where parking facilities were less generous now than previously, following redevelopment about four years ago.  She acknowledged that it was a convenient parking place for emergency services vehicles and for those living within the community served by the medical establishments who needed to visit them.  However, she maintained that there were other parking facilities nearby.  She maintained that any loss of amenity resulting from a sale of the ground to Bremners at what was market value, according to the applicants’ estates department, would be minimal.  She pointed out that the ground in question was but a small part of the general area known as Battery Green, the remainder of which would be retained for amenity purposes.

2.5       Miss McKearney referred to two cases.  The first was Kirkcaldy District Council v Burntisland Community Council 1993 S.L.T. 753.  This was a case where the court allowed the sale of common good ground which had been used as a caravan park, holding that the economic benefit arising to the local community out of the disposal outweighed any loss resulting from the termination of recreational use of the land.  The second was West Dunbartonshire Council v Harvie 1997 S.L.T. 979.  This was a case where the court refused to sanction the sale of common good ground for the purpose of erection of a new sheriff court building, holding, inter alia, that the guiding consideration was what appeared to be for the greatest benefit of the people who shared the common good, paying regard to the nature and quality of the rights which the inhabitants of the locality enjoyed.

2.6       Mr Williams stressed the importance of the ground as a parking area in connection with the hospital and health centre.  This, he said, was an important public amenity which should not be lost for the sake of conferring an economic benefit on a commercial organisation.  He acknowledged that there were other car parks in the vicinity but maintained that these were far less convenient due to their distance from the hospital and to the fact that they were at different ground levels.

2.7       Mr Williams referred briefly to the written objections lodged by the community council.  In addition to the concern over loss of amenity there was concern that the extra-judicial procedure adopted by the applicants in seeking to promote the sale of the ground was flawed and concern that the sale price agreed did not reflect the true market value of the ground.

3.         Discussion and Decision

3.1       The cases of Kirkcaldy District Council v Burntisland Community Council and West Dunbartonshire Council v Harvie are useful as a guide to situations in which authority under section 75(2) of the 1973 Act might or might not be granted.  But the discretionary power contained in section 75(2) can only be considered in light of the particular circumstances of each individual case.  No exception can be taken to the proposition in the West Dunbartonshire Council case that the guiding consideration is what appears to be for the greatest benefit of the people who share the common good.  Having regard to that consideration, it appears to me that the people of Banff, and by extension the people of Macduff, would suffer a very significant loss of amenity were I to grant this application and if, as a consequence, they were to be excluded from using the ground for what has become its accustomed purpose.  I do not see how it could reasonably be maintained that that loss of amenity would be counterbalanced by any benefit that might be gained by having a sum of £10,000 available for investment within the common good fund.

3.2       Nothing was said to me about what Bremners might intend to do with the ground if they were to be successful in purchasing it but I think that it could reasonably be assumed that it would be employed for the commercial benefit of Bremners rather than for the general good of the people of Banff.  In that regard the circumstances of this case are quite different from the circumstances that persuaded the court to grant the application in the Kirkcaldy District Council case.

3.3       The onus is on the applicants to persuade me that I should exercise my discretion in their favour.  They have failed to do so and the application falls to be dismissed.

4.         Expenses

4.1       There was no meaningful discussion regarding expenses at the hearing.  I have, therefore, assigned a hearing for that purpose.