Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 58
P44/10	OPINION OF LORD MALCOLM in the Petition CAPACITY BUILDING PROJECT Petitioners; against THE CITY OF EDINBURGH COUNCIL Respondents: for Judicial Review of a decision of The City of Edinburgh council dated 27 August 2008 ­­­­­­­­­­­­­­­­­________________

Petitioners: Wolffe, Q.C., C. Murray, Advocate; Simpson & Marwick

Respondents: Johnston, Q.C., Ms M Ross, Advocate; City of Edinburgh Council

25 March 2011

[1] The petitioners are the Capacity Building Project, a company limited by guarantee and a registered charity. Their aims are:

"To expand the knowledge and develop the skills of those involved in community development, while providing local people with the means, resources and support to enable them to play an active and inclusive part in the social, economic, political and cultural life of the Craigmillar Community."

The respondents are the City of Edinburgh Council. In terms of a lease between the parties dated 18 July and 18 September 2002, the petitioners became the tenants of the Craigmillar community centre (sometimes called "the college" or "the settlement") at 63 Niddrie Mains Terrace, Edinburgh. That lease has been continuing on a year to year basis, and the petitioners have occupied and run the community centre. On 27 August 2008 the respondents' corporate asset management group decided to terminate the lease as at the end of March 2009. This was to allow the premises to be used as offices for social work staff. In this application for judicial review, the petitioners challenge that decision as being unlawful. They ask the court to quash it and the resultant notice to quit, and to suspend a decree of removing granted by the sheriff at Edinburgh on 22 January 2010.

The parties' positions

[2] At a first hearing, senior counsel for the petitioners, Mr Wolffe, QC submitted that the use of the building as a community centre is part of the common good and thus the respondents have no power to decide that it be used as an office for social workers. In any event the respondents failed to have regard to the fact that they were closing a long standing community centre; nor did they consider the implications for the neighbourhood. In addition the decision proceeded upon the erroneous assumption that the petitioners were to be wound up. Mr Wolffe also submitted that the respondents were in breach of their obligations under section 71 of the Race Relations Act 1976, which provides that, when carrying out their functions, they require to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.

[3] For the respondents, Mr Johnston, QC submitted that the community centre is not part of the common good and that the council has a discretion as to its appropriate use. As to the decision itself, all material considerations were taken into account, and there was no breach of section 71 of the 1976 Act. In any event by the date of the first hearing an equalities impact assessment had been carried out which recommends termination of the lease. Thus, even if there were defects in the procedures in 2008, there would be no point in quashing the decision The necessary work has now been done in respect of both race relations and the wider community issues. Finally, while accepting that the petitioners have a direct interest in the termination of their lease, it was submitted that they have no title to raise the wider public law issues.

The background circumstances

[4] The relevant background circumstances can be summarised as follows. In 1929 the sole remaining trustee of the late Andrew Wauchope of Niddrie disponed to the Lord Provost, Magistrates and Council of the City of Edinburgh some 91 acres of land forming part of the lands and barony of Niddrie Marishall and others, all in return for a price of £19,200. In due course the settlements of Niddrie and Craigmillar were developed. In 1936, in consideration of payment of £350, the council conveyed a small parcel of land at Niddrie Mains Terrace to the trustees of the Edinburgh University Settlement Association for the purpose of the erection of a building "to be used for social purposes". Subsequently the Scotsman newspaper reported the opening of a new education and social centre of the Edinburgh University Settlement at Craigmillar to serve the large new housing area at Niddrie and Craigmillar. The initial use of the building was described as follows:

"On the educational and development side there will be ... book-keeping and boxing, languages (including Esperanto), thrift, cooking, and 'keep fit' classes. There will be health talks to women. Instruction and practice in dramatic rendition has been a successful enterprise elsewhere, and is also on the Craigmillar syllabus. The unemployed men wishful of improving their minds will have competent lecturers to explain to them 'the background of today' - historical and economic."

There was to be a separate entrance to a part of the building dedicated to health and welfare. There was a kitchen and cooking department, where meals would be served for expectant mothers and other women "not in a condition to prepare proper meals in their own houses". It was noted that the idea had a "notable parallel in the arrangement of African villages, which have always their central hall and meeting place, focusing the life of the community." It was observed that the social centre was something which was "really necessary for an intelligent and agreeable social life in a new housing area which has not developed its own means of social life and recreation."

[5] At much the same time another addition of the newspaper reported on a meeting arranged to discuss "the need for community centres in Scotland". Edinburgh had three such centres, including Craigmillar College. They were products of recent housing changes and it was noted that "community ties must be created, outlets obtained for community effort ... otherwise women become neurasthenic, men grow dull, and children get into mischief." The work of the Edinburgh University Settlement, excited much high level interest in the immediate pre-war years. For example, in April 1937 a meeting to discuss and raise funds for the Settlement's work was convened in the House of Commons by Ramsay Macdonald and others. The meeting was attended by many distinguished persons, including Lord Advocate Cooper and Mr John Cameron KC. The latter spoke to the need for additional funds to take forward the work, which, according to Sir David Wilkie, included "pioneer" provision for the social and community life of Craigmillar.

[6] In 1938 the city received a request from the University Settlement for a grant of £1,000 per annum towards the costs of the college. A decision was taken to purchase the building with the price to be paid at £1,000 per annum on condition that, in the meantime, the work of the college would continue under the auspices of the University Settlement. In due course an offer price of £6,000 was fixed. It was agreed that the University Settlement would continue in occupation until 30 September 1943 free of rent, while maintaining the centre on the lines then existing for the benefit of the residents in the Niddrie housing area. In 1940 the subjects were conveyed to the Lord Provost, Magistrates and Council of the City of Edinburgh and their successors in office "as representing the community." Mr Wolffe submitted that thereafter the building was part of the common good to be used only as a community centre. In 1943, on the expiry of the earlier agreement, it was decided that the building should be administered by the corporation, and that, with the exception of a section of the building used as a war-time nursery and clinic, it should "be made available for the social, educational and recreational activities of the various organisations in the area". A remit was made to the treasurer's committee to arrange the letting of the subjects.

[7] Throughout its life the building has been used as a community centre. The Edinburgh University Settlement continues to take an interest in the building. On learning of the respondents' decision to use the premises as a social work office, it lodged an objection dated 31 July 2009 in the following terms.

"It has come to our attention that the City of Edinburgh Council's property services department are planning to close Craigmillar College/Niddrie Mains community centre and use the building as an office facility for the social work department. For those who are unaware, Edinburgh University Settlement Association built Craigmillar College in 1936 and used the facility to provide social, educational and recreational services to some of the poorest, most vulnerable people in Edinburgh. However, in 1943 the University Settlement handed the operation of the community centre over to the Edinburgh Corporation on the understanding that the building would continue to be used as a community resource, used to deliver social, education and recreation services to the people of Craigmillar."

It can be noted that this narrative is not wholly accurate. The building was not "handed over", it was purchased for £6,000. The objection continued by noting that the building had been used for its intended purpose for the past 70 years, and that Craigmillar and its surrounding neighbourhoods still suffered extremely high levels of deprivation. It was considered that the need for a community centre far outweighed the requirement for offices for council staff. The University Settlement therefore strongly opposed any proposals to close the College which would "leave Edinburgh's poorest community without a valuable and much needed community facility." As will become apparent, the respondents' decision was taken in ignorance of the views of the University Settlement and others to the general effect that the council should honour the intentions of those who instituted the community centre.

[8] Between 1977 and 1995 Mr Paul Nolan represented Niddrie and Craigmillar on Lothian Regional council. He has submitted an affidavit explaining his involvement in the community centre over several decades. In the 1960s it was administered by the Craigmillar Community Association. From 1970 until 2002 the Craigmillar Festival Society (CFS) occupied and managed the whole of the building thereby "benefiting pre-school children, school age children, young people, and facilities for the elderly and housebound, including lunch clubs and transport." The CFS used the building for community meetings, social activities and other events. Mr Nolan sets out the range of activities and events organised by the society in the 80s and 90s. In 2002 the respondents "insisted" that the Craigmillar Festival Society be dissolved into smaller organisations. The petitioners became responsible for the management of the community centre. In a report by the directors of corporate services and social work leading up to this decision, it was noted that "CFS runs its own premises as the community centre, which provides a valuable resource and focus for local people." In a subsequent report, it was recommended that the main task of the Capacity Building Project would be to

·      

"

support the Craigmillar community by building individual and community skills in participation and representation;

·       manage the community centre and other relevant property leases with a business plan designed to generate income from lets for occasional or longer term use of premises. Income will be set against the running costs of the community centre and is expected ultimately to offset the costs of the three projects based in the centre;

·       manage the credit union;

·       provide administrative, infrastructure and (in some specific instances) small grant support for projects in the area, including the new CFS Arts."

In due course that recommendation was approved. Mr Nolan became a board member of the petitioners. He notes that in the last few years there has been considerably greater use of the centre by ethnic minority groups.

[9] Mr Wolffe submitted that all of this was explicit recognition that the building is and always has been a valued community centre, with appropriate arrangements put in place for its management on that basis. The lease between the petitioners and the respondents recognised this, stating that, unless with the previous written consent of the respondents, the subjects of let would be used only for the purposes of administrative offices, community centre and lock-up garages in connection with the business of the Capacity Building Project.

[10] David Walker is the secretary of the petitioners. He has provided an affidavit setting out the activities which have been run by the petitioners at the centre. He explains that the petitioners began life in 1997 as an unincorporated association, then became one of six former CFS projects which were reconstituted as independent organisations. They were asked to take on the management and operation of the community centre. He describes how the centre has been the base for a number of community organisations involved in a broad range of work, including social welfare services, childcare activities, youth work, arts, and community development. The centre has been used for birthday parties, weddings, Christmas parties, funeral commemorations, christenings, quiz nights, fundraising events, youth clubs, disabled and special needs clubs, etc. Without the funding and large staff team it once had, the petitioners have found it difficult to offer the same level of service. Mr Walker explains that nevertheless the petitioners have continued to work towards their charitable objectives offering a small number of courses, workshops and community lunches. However the majority use of the centre is now by community groups and individuals, including organisations such as the Muslim Forum and the Edinburgh Jazz and Blues Festival. The building has been made available to other learning providers, for example the Edinburgh School of Business for their programme of management and hospitality courses. In more recent months the petitioners have provided desk space and resources to support the development of a new training initiative which, if successful, might provide much needed revenue. Mr Walker explains that the centre has for a long time been the hub for a full range of civic events, including public meetings and community consultations. The City Council, the Craigmillar Partnership, the police and other statutory and voluntary agencies have used the building for meetings and community engagement purposes.

[11] Mr Walker states that over the years the centre has played host to a wide variety of activities and events encouraging cultural integration and racial harmony, including work with the Chilean solidarity movement. In the late 1970s the centre supported travelling families. It has been host to a Turkish/Kurdish wedding and has provided a base for Muslim festivals since 2006. The centre has been well used by the ethnic minority community over the years and, as well as the current prayer/cultural centre used by the Muslim community, the building is relied on by a number of minority groups including the Asian Traders Forum, the East Edinburgh Asian Womens Forum, the East Edinburgh Muslim Forum, the Saudi Club, the Arabic Education Group and the Union of Turkish/Kurdish Refugee Families. The Muslim prayer/cultural centre was established in October 2008 and officially opened in February 2009. It is used for language classes, teaching of the Koran, educational services, information/advice services, meetings and cultural events.

[12] Mr Walker sets the scene for events in 2008. He states that following three complaints the respondents began an investigation into the petitioners. A report was published which in due course led to a decision by the respondents in June 2008 to withdraw the petitioners' grant funding. The council provided a sum of money to help with redundancies and winding up costs. By March 2009 the petitioners had made all eleven members of its staff redundant and had wound up a great deal of its work and commitments. However the petitioners' board took the decision to maintain the work of the charity and to continue to manage and operate the community centre. The petitioners have done this for the past two years and have met all the costs associated with the operation of the building. I should indicate that I have taken into account all of the affidavits lodged by the petitioners.

[13] It is appropriate to dwell on the events of 2008/9 in more detail. It will emerge that there was a degree of misunderstanding, or at least a breakdown of communication between the parties, which has contributed to the present situation. The trigger was the report of the investigation into the said complaints about the petitioners' management of the centre. I was not provided with details on this topic, no doubt because it is not central to the issues raised in these proceedings. However the recent equalities impact assessment records a view that "the current wide array of personal and organisational tensions in Craigmillar, of which many seem rooted in CBP practice over the years at the community council, credit union and Jack Kane centre etc, are having a negative effect on community relations." (The same document speaks of the building having an "iconic status" in the community).

[14] The concerns about the petitioners' management of the community centre led to a recommendation by the Craigmillar Partnership and later the Portobello/ Craigmillar Neighbourhood Partnership that their funding should be withdrawn, which was considered at a council meeting on 26 June 2008. A deputation from the petitioners sought to underline the "key services" under threat and their importance to the community. The council was invited to reject the recommendation, provide a full year's funding and then await the ombudsman's investigation before making a decision on the future of the project. Nonetheless the council's decision was to endorse the recommendation, though it was agreed that there would be a final quarter year's funding of just under £53,000 "to contribute to wind up/redundancy costs".

[15] It is clear that this decision was regarded by the council as spelling the end of the petitioners' involvement in the community centre. That was also the gist of the plea made to the committee by the deputation from the petitioners. However there is no suggestion that at the time the petitioners were told that their lease would be terminated. In the event, though the petitioners did pay off their employees, they decided to continue to run the community centre, apparently oblivious to the fact that in August 2008 the decision had been taken to terminate their lease as at the end of March 2009. Similarly it would seem that the council took this decision unaware of the petitioners' determination to continue their work at the community centre.

[16] Craig Lamont, an estates surveyor employed by the council, presented a report to a corporate assets management group meeting on 27 August 2008. He mentioned a need for alternative premises for social workers in the area. The lease of their premises at Duddingston Park South would end in July 2009 and there was a shortage of alternative premises. Mr Lamont noted that "the CBP was involved in community engagement activities in the area ..." (emphasis added). He stated that after complaints about the project and an investigation, the council had decided to stop funding the petitioners, other than a contribution to wind up costs. He noted that Services for Communities were currently involved in winding up the project. (This is the only reference to such an involvement and I have no information as to whether and to what extent this statement held true in any meaningful sense). In any event it is clear that it was assumed that the property would soon be vacant. It would appear that no consideration was given to the loss of the community centre as such, nor to the implications of this for the neighbourhood. No one was consulted on this aspect of matters. However at the August meeting it was also decided that in due course the premises would be used as a social work office.

[17] Mr Lamont identified the sub-tenants as the Kurdish Refugee Association and the Aberlour Outreach, a council funded project. In his report he stated that the lease could be terminated as at 31 March 2009 and that local neighbourhood managers had been consulted. The meeting was requested to support the decision to end the lease in order that social work staff could occupy the premises. This would be subject to assisting Aberlour to find alternative accommodation, which might be in the same building or in other premises in the area.

[18] Mr Lamont's recommendation was accepted. The mindset would appear to have been that, because of the earlier decision taken in June, the petitioners' involvement in the community centre would be coming to an end and the building would be available for other uses. There was an urgent need for alternative premises for the social work centre in the area and the community centre was seen as an obvious choice.

[19] Arrangements were made for service of a notice to quit on the petitioners. For whatever reason a letter to that effect dated 14 November 2008 never reached the petitioners, and it was several months later that they learned of the decision taken on 27 August 2008. On any view this was unfortunate, and no doubt contributed to the subsequent impasse. On 16 January 2009 an estates manager wrote to the petitioners stating that further to her earlier letter of 14 November 2008 (the letter which did not arrive) she would like to arrange a date for a meeting in order to discuss arrangements for the handing over of the property at the end of March. Mr Walker replied asking for an explanation since the petitioners were unaware of a need to hand over the subjects. A fresh notice to quit was served which in due course led to a decree for removing against the petitioners. By letter of 10 February 2009 Mr Walker mounted a spirited defence of the petitioners' continuing use of the subjects, stating that it was a "vital hub for a whole range of community activities." He was critical of the absence of consultation in advance of the decision to end the lease. In a schedule to the letter he identified the occupants and users of the building as at February 2009. In a reply, the convener of the economic development committee stressed the "paramountcy" of the council delivering best value for the public pound.

[20] In subsequent correspondence Mr Walker pointed out that the council's withdrawal of funding did not bring the charity to an end. The petitioners had continued their activities, seeking other means of raising finance. He asked whether the decision of 27 August 2008 was taken on the assumption that the petitioners were closing down. He suggested that the council had other options for accommodating the social workers. Production 6/14 is a copy of Council Members Briefing 80, dated 25 February 2009. It makes it clear that the answer to Mr Walker's question was yes, the council did proceed on the assumption that after the withdrawal of funding the petitioners' operations would cease. The briefing also confirms that it was this which prompted the decision to use the building for the functions of the Craigmillar social work centre following the end of its lease of 173 Duddingston Park South on 29 July 2009. Members were informed of an acute shortage of alternative accommodation in the area. Assistance would be provided to the Aberlour Childcare Trust in the event that they could no longer remain in the building. Efforts would be made to contact other occupiers to assist them, where possible, in finding alternative accommodation.

[21] One of the main complaints on behalf of the petitioners was that there was never any real consideration of the main consequence of the 27 August 2008 decision, namely the loss to Craigmillar of the use of the building as a community centre. It was this which provoked the strongly worded objection from the Edinburgh University Settlement. A letter to Mr David Walker from Mr Bill Miller, the council's property management and development manager, dated 12 March 2009 in effect confirms that the August decision was seen as consequential on the June decision, with no prior consultation having been carried out with the local community. Mr Walker had asked the question "What discussion has taken place with the local community in relation to this proposal?" Mr Miller replied "Local consultation was carried out prior to the 26 June 2008 report to the council with regard to the winding up costs of the CBP." When asked "How many meetings have taken place with the council to discuss the proposal to close our community centre and turn it into offices for the Craigmillar social work team?", he replied "The council's property strategy group has considered the building on four or five occasions in the context of the termination of the lease of the Craigmillar social work centre at Duddingston Park South." In short, after the June decision the matter of the building's future was simply remitted to the council's property strategy group, which formulated the plan to use it as a social work centre.

[22] On 25 March 2009, councillor Tom Buchanan, as convener of the economic development committee, wrote to Mr Walker stating that "given the council decision to stop funding and to pay for wind up costs, the closure of the project and termination of the lease could be seen to flow naturally from these circumstances". He goes on to state that "the decision was not taken on the presumption that the CBP was closing down. It was to afford the council the opportunity to relocate staff from the Craigmillar social work centre at Duddingston Park South". If and in so far as the first part of this statement was intended to suggest that, but for the decision to relocate social work staff, the council assumed that the petitioners would continue in operation at the community centre notwithstanding the withdrawal of its funding, this is difficult to reconcile with other information before the court.

[23] The March 2009 deadline for the termination of the lease came and went and the petitioners remained in occupation. The council raised proceedings for their removal, culminating in the decree already mentioned, extract of which has been suspended pending the outcome of the current application. The next major development was a letter dated 9 September 2009 to the council's chief executive, Mr Tom Aitchison, from Mr Ijaz Nazir of the East Edinburgh Muslim Forum. In recent years, and particularly since the withdrawal of the petitioners' funding, there has been increased use of the community centre by ethnic minority and faith groups. Mr Ijaz Nazir raised concerns that the council had not fulfilled its duties under the Race Relations Act 1976, and in particular the duty to assess and consult on any likely adverse impact of policies on the promotion of equality and good race relations. He asked for the results of the race equality impact assessment, consultation and/or monitoring conducted by the council in advance of the decisions in respect of the community centre. Mr Atchison replied that a full equalities impact assessment was not required since the officer assessment was that there was "a medium relevance to the legislation, a medium level of public concern and a low likelihood that significant negative impact on quality of life and/or discrimination would take place ..."

However, this did not imply that equalities issues were not a feature of the decision. Mr Aitchison said that the officer assessment is "that due regard was taken of the relevant legislation and the general duties as described in race equality legislation ...".

[24] This reply was not satisfactory to Mr Ijaz Nazir who forwarded further specific questions to Mr Aitchison. The acting chief executive replied to them, repeating that "as the decision was assessed as of medium relevance, it was not subject to a full equalities impact assessment." He refuted the suggestion that the council was in breach of duties under the Act. If there remained dissatisfaction, the matter could be raised with the Equality and Human Rights Commission (Scotland).

[25] Mr Walker took up that invitation and made a formal and detailed complaint to the Commission. In due course the Commission lodged written pleadings in these proceedings, though it did not participate in the first hearing. In his letter to the Commission Mr Walker made three complaints as follows:

"1. The City Council did not consult the Capacity Building Project or any of the groups or individuals using the building before issuing the Capacity Building Project with a notice to quit.

2. The City of Edinburgh Council failed to bring the closure of the community centre to the attention of elected members prior to making their decision and failed to follow the correct equalities or democratic procedures.

3. Despite assurances from senior officials ..., there is evidence which demonstrates that the council showed no regard to their general duty of eliminating unlawful racial discrimination when taking this decision."

In his letter Mr Walker elaborated upon these concerns. It can be noted that they were of a broader nature than the specific complaint under the Race Relations Act. Those broader concerns can be categorised as a failure to consult on and consider the consequences of the decision to use the building as a replacement for the social work centre at Duddingston Park South, allied to the absence of any alternative proposal for a community centre in Craigmillar. Nonetheless the race relations aspect of the matter came to dominate events thereafter (and indeed Mr Wolffe's submissions at the first hearing). In particular the council has now carried out a full equalities impact assessment, dated August to November 2010. Though billed as an equalities impact assessment it also covers the broader issues mentioned above. It was carried out by the council's equalities manager, Mr Croft, and concludes with recommendations which include the following:

·      

"

That property management and development proceed with the termination of CBP lease - (based on the rationale that CBP have already been given public funds to wind up the organisation/that CBP currently lack the capacity to make best use of the building to meet local needs/CBP seem to lack credibility in other community organisations who operate in the area/that CBP are not currently delivering broad equalities work at the 'settlement' i.e. it is overly focused on faith matters/that CBP are costing the council money that could otherwise be saved/that key council services for vulnerable clients in the area require urgent access to the building) - that whenever property management and development proceed with the determination of the CBP lease, and the relocation of the social work practice team and other council services into the 'settlement' in the short, medium or long term, then some form of equitable community access (including weekday/weekend/morning/afternoon/evening access) should be developed and maintained at the 'settlement' (specifically on the ground floor).

·       That the CBP, existing building users and community groups, Craigmillar Neighbourhood Alliance, Craigmillar Community Council and relevant other organisations, be encouraged to undergo specialist community mediation work to ascertain the priorities for community access to the 'settlement', either in the short, medium or long term.

·       That the future use of the building by equalities group, and other community interests of the single 'settlement' is monitored by the neighbourhood partnership and neighbourhood management team to ensure equality of access and good community relations are promoted and maintained.

·       That initiatives to address poverty and health inequality (particularly employability and community capacity building courses) and foster good community relations remain a predominant theme, either with regard to future council or community use of the building.

·       If there are any community groups that represent equalities interests that have difficulty with access to the 'settlement', then property management and development will ensure these groups have access to information about other suitable premises in the area."

Mr Johnston indicated that the likelihood is that these recommendations will be accepted. It was on this basis that he invited the court not to quash the earlier decision. As at the date of this opinion, I have not been informed of any council decision upon these recommendations. I assume that the matter remains for determination.

The parties' submissions

[26] For reasons which I will give below, I am not prepared to uphold Mr Wolffe's submission based on common good. In this part of my opinion I shall concentrate on the other grounds of challenge. Before summarising the competing submissions, it can be noted that, though often conflated in the discussion before me, there are two separate, albeit related decisions under review. Firstly there is the decision to terminate the petitioners' lease. Secondly there is the decision to use the building for social work department purposes, which is said to conflict with its "dedication" and long standing use as a community centre for Craigmillar and the surrounding area. A decision to terminate the petitioners' lease does not necessarily lead to abandonment, in whole or in part, of the community centre function of the building. Furthermore, in my view any flaw in the decision-making process on one aspect does not necessarily impact upon the legality of the other. One part of the decision relates to the private relationships between the parties; the other potentially to wider issues as to the public interest in the use of the building in the future and the respondents' obligations when making a decision on that aspect. I consider that some of Mr Johnston's submissions on title to sue were based on a somewhat similar analysis.

[27] Mr Wolffe began his address with the proposition that "the fundamental flaw in the decision" was the failure to address the community use made of the building and the implications of the decision for that community use. It will be apparent from the observations and comments which I have made so far that I consider that there is force in that submission, at least in so far as it criticises that part of the decision relating to future social work use of the subjects. Mr Wolffe stated that much of the rest of his address, which in the main related to the alleged breach of the duties under section 71 of the 1976 Act, flowed from or formed a subset of that overarching proposition.

[28] Mr Johnston responded that the council had regard to the nature and extent of the use made of the building, at least so far as was known at the time. Attempts were made to find accommodation for the sub-tenants. There was an acute shortage of alternative accommodation for the social workers. It was a reasonable and responsible decision. Mr Johnston accepted that on the face of Mr Lamont's report to the meeting in August 2008 the recommendation flowed from an assumption that the petitioners would be closing down after the earlier decision to withdraw council funding.

[29] Much of Mr Johnston's submissions were aimed at the case based upon an alleged breach of section 71 of the 1976 Act, as opposed to the broader attack founded on a failure to have regard to material considerations. He accepted that the community use of the building was a relevant consideration. However, if the view was that the council had not addressed that matter in 2008, it had now. This was demonstrated in the recent equalities impact assessment, which covered all the ground. That assessment was not limited to race equality and race relations issues. It recommends continuing community access to the ground floor of the building, albeit the lease should still be terminated. In these circumstances there would be no merit in quashing the 2008 decision since the council will soon be addressing the recent recommendations. Mr Johnston's primary position was that in 2008 the council did pay sufficient regard to material considerations such as the then usage of the building; the loss of the petitioners' funding; the attempts to obtain alternative accommodation for sub-tenants; and the urgent need to relocate the social work centre. He stressed that local neighbourhood managers had been consulted. He accepted that the decision could be challenged on normal judicial review grounds, though he questioned the petitioners' title to do so.

Discussion and decision on this ground of challenge

[30] It is obvious from the contemporary documentation that little, if any, thought and consideration was given to the question of whether, and especially given its history, the building should remain as a community centre. In fairness Mr Johnston accepted as much. He said that in 2008 "there was very little material regarding community impact in the wider sense." It is clear that the understanding was that after the withdrawal of funding to the petitioners the community use was going to come to an end in any event. The building would then be vacant. All those underlying assumptions have proved to be wrong. However, even if it is understandable that they were made at the time, it is more difficult to explain why the council ignored the wider ramifications of the loss of the community centre itself. The recent detailed study has demonstrated that this would have many adverse impacts, hence the current recommendation to retain a significant element of community use of the subjects.

[31] It would appear that in 2008 nobody stopped to look at the bigger picture. The building was simply seen as a ready answer to the urgent requirement for new social work accommodation in the area, and one which chimed with the importance of obtaining best value. No attention was given to the origins of the building, nor to its history as summarised earlier. There was no meaningful consultation on such issues, thus the petitioners' objections and those of the University Settlement came after the decision had been taken. However in due course they and other complaints did prompt a thorough assessment by the council's equalities manager who, after full consultation, considered the implications of what was proposed, hence Mr Johnston's submission that, even if the petitioners' case has merit, it should not lead to the quashing of the original decision.

[32] The petitioners are concerned not only with community use of the building but also for their own lease of the premises. They ask the court to quash both the decision to use the subjects for social work offices and the resolution to end their right of occupation. While I consider that Mr Wolffe's submission that material considerations were overlooked is well founded, it does not necessarily follow that the termination of the petitioners' lease was unlawful. That decision was based on the lead up to, and the outcome of the June meeting. Neither the ongoing community centre use of the building nor a proper consideration of its future depends upon the continuation of the petitioners' management of the subjects. To illustrate this point, there have been recent concerns that the petitioners have themselves failed to respect the original intention of the founders and have focused on a narrow range of uses and users. Be that as it may, it is a fact that the petitioners accepted money given to them by the council to contribute to their winding up costs. The deputation to the June 2008 meeting did not inform the council of an intention to continue in occupation and management of the community centre come what may. Rather the impression was given that without council funding the project would not continue. The lease was running on tacit relocation and each year, as landlord, the council had a legal right to bring it to an end. In itself the contractual relationship created by the lease engaged no public law issues. The wider questions relate to the future use of the building, with or without the continuing involvement of the petitioners.

[33] In all the circumstances I do not consider that the petitioners have any legitimate complaint about the termination of their lease. They accepted a substantial amount of public money as a contribution to their winding up costs. They were aware that funding had been withdrawn because of concerns as to their management of the premises. While the petitioners and their predecessors, the Craigmillar Festival Society, have managed the building for a long time, its use as a community centre does not depend upon their tenancy of the subjects. In addition, any mistaken assumptions as to whether the petitioners would survive the withdrawal of their funding do not invalidate the decision to end their lease.

[34] All that said, and contrary to the submission of Mr Johnston, I am prepared to proceed upon the basis that the petitioners have both title and interest to raise the wider public law issues, either on their own behalf or as representatives of the community. For the reasons given earlier, I consider that there is force in those wider concerns, however they do not justify setting aside the decision to terminate the lease. At most they could lead to reduction of the decision to relocate the social work office, but in light of all the work that has been done in recent months, and given the indication that the council will be revisiting that topic in the context of the equalities impact assessment, I am persuaded that I should exercise my discretion in the matter by not quashing that decision. I shall proceed upon the basis that, as indicated by Mr Johnston, the council will revisit their plans for the building in the light of that impact assessment and its recommendations. That is what would happen in the event that I quashed the earlier decision. However, in case matters have changed since the discussion at the first hearing, I shall put the case out by order before pronouncing an interlocutor. It follows from the above that I do not intend to suspend the decree of removing.

[35] In these circumstances, and without intending any disrespect to the submissions and the authorities presented to me, I consider it unnecessary to reach a concluded view on the submissions based upon section 71 of the 1976 Act. As Mr Wolffe readily accepted, in reality they are but part of his wider common law case. However, I entertain considerable doubts as to whether the decision facing the council in 2008 truly engaged the duties under section 71. If it did, it was only on an extended definition of the scope of those duties, which could equally be expressed as a duty to have regard to material considerations, namely the implications and consequences of the loss of the building as a community centre. I have dealt with that issue above, and in these circumstances a full discussion of the Act and of the English cases on section 71 would be academic and superfluous.

[36] I will observe that I have sympathy with Mr Johnston's submission that much of Mr Wolffe's address on the 1976 Act did not focus on the question raised by section 71, namely the potential for detriment to equality of opportunity or treatment. In the judgement of Lord Justice Pill in R (Janet Harris) v London Borough of Haringey [2010] EWCA Civ 703, it was emphasised that the promotion of equality of opportunity and good relations between persons of different racial groups (his emphasis) is not the same as the promotion of the interests of a particular racial group or groups. If a local authority closes down a facility which is used by various organisations, including groups representing ethnic minorities, in my view that will not, of itself, mean that section 71 duties are engaged. As was submitted to the court in Harris there must be a demonstrable application of the statutory duty to the particular facts. One could approach this by asking whether a policy or proposal could have an adverse impact on equality of opportunity for one or more racial groups, and whether that could be reduced by taking particular measures. Viewed in this way, I have difficulty in identifying any breach by the respondents of their section 71 obligations in 2008. There does appear to have been a material increase in the extent of the use of the building by ethnic minority groups after the withdrawal of the petitioners' funding. This may have made it easier to identify section 71 issues when Mr Croft came to review the position in the course of 2010. In any event, a full equalities impact assessment has now been carried out, all as detailed earlier.

[37] In their written answers the interested party, namely the Equality and Human Rights Commission, aver that at the relevant time the council appears to have paid little regard to the consequences of their decision for those using and those interested in the premises. I have upheld those concerns. In addition there are various criticisms of the council's equalities schemes of 2006 and 2009. No doubt the respondents will have noted and will reflect on those comments, but there was no discussion of them by counsel at the hearing, and, in all the circumstances, I need not address them.

Common Good

[38] There remains Mr Wolffe's submission on common good. If correct it would prevent the respondents from using the premises as anything other than a community centre, but would not , in itself, stop the termination of the petitioners' lease. Reliance was placed upon the respondents' title, which was specifically "as representing the community of the said city", and on the whole history, origins and subsequent use of the property. The submission came to be that the subjects are "dedicated" to use as a community centre in the same sense that the famous links at St Andrews are dedicated to the game of golf.

[39] Common good issues usually arise if a local authority seeks to alienate common good subjects, but this is not such a case. It is a question of whether the local residents are vested in a right to a community centre in Craigmillar which can be enforced against the council, thereby preventing the use of these premises as an office for social workers. Mr Johnston submitted that a local authority has considerable latitude in the use of common good land so long as it keeps the interests of the burgh in view. In any event, there was no dedication of the subjects in the sense discussed in the cases in which the court enforced a particular use of public land.

[40] Mr Wolffe relied upon Paterson v The Magistrates of St Andrews (1881) 8 R 117, Murray v The Magistrates of Forfar (1893) 20 R 908, and McDougal's Trustees v The Lord Advocate 1952 SC 260. I consider that the following general principles can be taken from the judgments in those decisions and in similar cases such as Sanderson v Lees (1859) 22 D 24 and Grahame v The Magistrates of Kirkcaldy (1879) 6 R 1066.

(a) Common good land consists of grants of territory made to the community in the original charter or by subsequent grant. A council's powers to raise or receive funds, and the fruits of those rights, do not fall within the common good. Subjects acquired under statutory powers or held under special trusts are not part of the common good. Common good is inalienable if its retention is necessary for the proper administration and trade of the burgh or for the convenience of the inhabitants.

(b) Generally speaking common good must be applied for the benefit of the community in such manner as, using a reasonable judgement, the council in its discretion considers proper. (Thus in the present case it is not sufficient for the petitioners simply to demonstrate that the subjects form part of the common good of the city).

(c) A limitation on the use to which common good land may be put can be imposed in the original charter or grant. Alternatively, ancient or immemorial usage can explain the purpose of the original grant, indicating that the subjects have been appropriated or dedicated to a particular purpose, for example as a golf links, a bleaching area, an area for public recreation and resort, etc. Such subjects are vested in the local council as steward or guardian purely for maintaining that state of affairs. The true owner of the subjects is the community at large, with each citizen having a right to enforce the particular conditions against the magistrates. Such privileges are a pertinent or adjunct of the title. It is not a matter of servitude, trust or subordinate right, but of the quality of the title of the magistrates. However, if the use to which common good land is put is the result of a decision or permission of the council, no such inalienable right or privilege is vested in the community.

[41] Applying these principles to the present case I am of the opinion that the respondents are not obliged to maintain the subjects as a community centre. On any view 63 Niddrie Mains Terrace is in a very different category from the golf links at St Andrews. Unlike in McDougal's Trustees, there is no element of gift to the city. The land formed part of the substantial area purchased in order to develop the settlements of Niddrie and Craigmillar. It was then sold to the Edinburgh University Settlement Association "for social purposes" and subsequently repurchased by the city in the late 1930s for £6,000. Mr Wolffe founded on the minutes of a meeting of a council joint sub-committee of 13 October 1943. The recommendation was that the bulk of the building be made available for the "social, educational and recreational activities" of the various organisations in the area in accordance with a scheme to be submitted by the organisations. It can be assumed that, at least initially, such a scheme was implemented. However I am not persuaded that this can be taken as an inviolable dedication of the subjects as a community centre, even assuming that such could fetter the discretion of successor councils. In any event the phrase "social, educational and recreational activities" is broad and ill-defined, potentially covering the now proposed use.

[42] It is true that, at least until very recently, the building has always been used as a community centre. However the key feature of the decisions in Paterson and Murray, and in similar cases, was that the history of the relevant land demonstrated that it was truly owned by the citizens as a whole. The ancient usage of the public land was evidence of that underlying right. On the other hand, if magistrates purchase a building which is in use as a community centre, and then decide to continue that activity, that does not create any right vested in the public at large to enforce that particular purpose for all time. In the present case there is the added factor that, at the outset, it was the decision of the then magistrates to sell the land to the University Settlement to allow that body to use it for their purposes. None of this is redolent of an underlying right vested in the public at large to a community centre in the area.

[43] By way of illustration, if a council buys a privately owned library and continues to use it as such, the public will never gain a right to insist that it remains a library for all time. This is because the building is in use as a library as a result of an exercise of the will of the local authority, not on the basis of an underlying right vested in the community at large. Cases such as those concerning golf links and market muirs, etc can be seen as examples of the alternative situation where the local authority is given title simply as a steward or guardian of the public's entitlement to the land for a specific use. That entitlement is demonstrated by the terms of the original charter or grant, or by ancient usage, which itself is seen as evidence of the basis for the original title of the magistrates. In the present case, at most the respondents are obliged to manage and administer the property with a view to the wider public good, something which allows a measure of discretion as to how this can best be achieved.