Appropriation, alienation and disposal

In 2.2 it was shown that the principal area of common good law which is subject to legislative control is the disposal (used here in its widest sense) of land and that the extant provisions of the Local Government (Scotland) Act 1973 still hold sway. It was also clear that section 75 of that Act, which deals with disposal of land forming part of the common good, forms part of a suite of provisions relating to acquisition, appropriation and disposal of land by local authorities. Finally, it was also noted that the Land Reform (Scotland) Act 2016 had made a small but important change to section 75(2) and (3) by introducing appropriation, as well as disposal, into the ambit of those subsections.

For ease of reference, the text of the section as amended is reproduced again here:

75 Disposal, etc, of land forming part of the common Good

• (1) The provisions of this Part of this Act with respect to the appropriation or disposal of land belonging to a local authority shall apply in the case of land forming part of the common good of an authority with respect to which land no question arises as to the right of the authority to alienate.

• (2) Where a local authority desire to appropriate or 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 appropriate or dispose of the land, and the Court or Sheriff may, if they think fit, authorise the authority to appropriate or dispose of the land subject to such conditions, if any, as they may impose, and the authority shall be entitled to appropriate or dispose of land accordingly.

• (3) The Court of Session or Sheriff acting under sub-section (2) above may impose a condition requiring that the local authority shall provide in substitution for the land proposed to be appropriated or disposed of other land to be used for the same purpose for which the former land was used.