Council’s application for authority to sell ground forming part of the common good‏ refused

Aberdeenshire Council’s plans to sell part of Battery Green in Banff to Bremner’s 65th General Stores for £10,000 were successfully challenged by Banff and Macduff Community Council, after Sheriff Philip Mann held that the local authority failed to persuade him that he should exercise his discretion to allow them to dispose of the land.

Banff Sheriff Court heard that Aberdeenshire Council had brought a summary application under section 75(2) of the Local Government (Scotland) Act 1973 for authority to dispose of 135 square metres of ground at Battery Green to Bremners, which had developed and used the ground as a car park for approximately 30 years and acquired a prescriptive servitude right for vehicular and pedestrian access over the ground.

The applicants had entered into missives with Bremners agreeing to sell them the ground at a price of £10,000, conditional upon the application being successful.

But the application was opposed by several residents of Banff and by Banff and Macduff Community Council, who were represented by Ian Williams, a layman and the secretary of the community council.

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.

However, the court heard that the ground had also been used for at least the same period for car parking both by local residents and by visitors to a nearby hospital and health centre.

While the solicitor representing the council 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 any loss of amenity resulting from a sale of the ground to Bremners at what was market value would be “minimal”, and 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.

In support of her argument, she referred to the 1993 case of Kirkcaldy District Council v Burntisland Community Council, in which 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.

She also cited the 1997 case of West Dunbartonshire Council v Harvie, 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.

However, Mr Williams stressed the importance of the ground as a parking area in connection with the hospital and health centre, which he described as an” important public amenity” which should not be lost for the sake of conferring an economic benefit on a commercial organisation.

The sheriff observed that while the two cases were “useful” as a guide to situations in which authority under section 75(2) of the 1973 Act might or might not be granted, the discretionary power contained in section 75(2) could only be considered in light of the particular circumstances of each individual case, and that the “guiding consideration” was what appeared to be for the “greatest benefit of the people who share the common good”.

Delivering his judgment, Sheriff Mann said: “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.

“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.

“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.”