by seashell » 05 Jan 2012, 21:51
An interesting submission from PPAGs counsel, turning on the interpretation of the statue (Town and Country Planning (Scotland) Act 1974, ss 73 - 75
Basically, their counsel proposed that there is provision for the disposal of inalienable common good land, but not for the appropriation of it. If the land is to be used for a school, rather than sold off, then this is appropriation. The contention is that there is no method provided by statute for a local authority to appropriate common good land. Her ladyship noted that was difficult to see why there should not be power to appropriate if there is power to dispose, to which it was responded that this was not a lacunae in the law, but rather that it reflected the preceding act (1947) which also was silent as regards this issue.
Moving on to precedents, the decision in the case of North Lanarkshire Council found that in that instant it was not a disposal, however it did not appear to consider if it was an appropriation. Her ladyship wondered what else it could be. With SOuth Lanarkshire Council, the arguments turned on whether the particular circumstances constituted a disposal and again did not consider appropriation.
It was contended that if the land continues to be used for a public purpose, then the underlying assumption is that this is an appropriation.
A number of historical authorities were also quoted.
I had to leave before the session ended, so not sure if the Council started their submission.