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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stirling District Council, Re Application For Authority To Disposal Of Common Good Land [2000] ScotCS 128 (19 May 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/128.html Cite as: [2000] ScotCS 128

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[1] A building known as the Museum Hall was erected in Henderson Street, Bridge of Allan, in 1886-87. It was financed in part by a trust established by John McFarlane of Coneyhill and in part by public subscription. It housed the natural history and art collection built up by John McFarlane, and provided space for a variety of local and community social and cultural events.

[2] In the period 1914-18 the Hall was requisitioned for military use. Apart from those years, the Hall was owned and operated by the McFarlane Trust until 1938. In 1937 the Trust offered to sell the Hall to the Burgh of Bridge of Allan for £2,600. The offer was refused. By 1938 the Trust was insolvent. A group of individuals, including one of the Trustees, bought the Hall and transferred it to a limited company, Museum Hall Limited. The company ran the Hall until 1950. It was then sold to the Burgh Council for £3,500 to be held "in all time coming for the benefit of the community of Bridge of Allan". Although the Hall was in use for cultural and community purposes from its erection, until 1950 it was in private ownership, albeit for what included charitable purposes, and its maintenance repair and management were matters of private concern. The Hall is in that respect in a different position from many buildings which had been civic projects at their inception, or in other respects wholly public projects. The building is now in a parlous condition. The petitioners wish to dispose of it and to apply the proceeds for other public purposes. A number of local interests contend that it should be restored and used for community purposes. Formal opposition to the petition has been withdrawn. But it was clear at the hearing on the petition that local opinion remains firmly opposed to disposal and it is appropriate that the reasons for the decision I have arrived at should be explained.

[3] From the reports provided by Mr Woolman and supporting documents, I am satisfied that this is not a case in which the deterioration of the structure can be blamed wholly on the petitioners and their predecessor local authority. Structural survey by CRA Limited, Consulting Engineers, disclosed that the foundations of the building rested on an unsatisfactory base. Sub-soil conditions varied over the area of the site. But significant features included thick layers of peat. The compression characteristics of peat indicated that from the date of construction there was a risk of settlement and of structural deterioration. The facts reported by Mr Woolman show that that risk had been realised by 1938. The Burgh Council instructed a structural survey when the building was offered to them in 1937. There was evidence at that time of bulging in the external walls of the building. Trial pits disclosed problems with the foundations. In recent years strain gauges have shown continuing settlement and structural damage. Photographic evidence shows that external support of one wall has been required. Internally, photographs show that one cast iron pillar has sunk into the ground to a material extent causing deflection of the balcony. The main internal load-bearing wall collapsed in 1991. The deficiencies which have caused these structural problems were inherent in the site from the construction of the building. It is clear that even if the superstructure of the Hall had been adequately maintained the building would now require significant capital expenditure to restore its structural integrity by underpinning its foundations by some form of piling.

[4] It is clear, on the other hand, that the superstructure of the building has not been properly maintained. It was last decorated in 1961. More significantly, the building was not maintained in a wind and watertight condition. Dry rot in the roof timbers led to a major collapse in 1988. There are other areas of dry rot in the flooring. Damage to the superstructure is eloquent evidence of a consistent failure to maintain the building during the stewardship of the local authorities following public acquisition in 1950. It is not surprising in these circumstances that there should be a belief in Bridge of Allan that the local authorities have neglected the Museum Hall. Had these elements of deterioration told the whole story one would have hesitated to conclude that the petitioners, who have in large part succeeded to the consequences of the neglect of their predecessors, should be relieved of the obligation to maintain this listed building.

[5] However, the estimated cost of the first phase of work required to make the building safe and wind and watertight, at 1990 prices, was £1.373M. The piling of the foundations would be a major engineering exercise and would be very costly. I am satisfied that it would be unreasonable to refuse the prayer of the petition on the ground that its state was the responsibility of the petitioners, and to leave the petitioners exposed to the obligations relating to the structure which would follow from their ownership of a listed building which had to be restored for public use.

[6] In view of some of the objections which have been advanced, the petitioners have investigated the possibilities which might exist of obtaining external funding for the whole or part of the expenditure on restoration. There have been calculations of the possible revenues from use of the restored premises and of the revenue cost of its management. I am satisfied that there is no realistic prospect of obtaining grant money from any external source or sources sufficient to reduce the net capital cost to the petitioners to an acceptable level. The investigations carried out have been comprehensive. It follows that the capital cost of the restoration of the Hall would require to be funded by the petitioners. The interest cost and amortisation of the capital would be elements in the total revenue cost incurred in addition to the more obvious general costs which have been calculated on comparisons with other similar facilities in the petitioners' control. The project would not be self-financing. Overall there would inevitably be a large deficit.

[7] I am not satisfied that the building had become redundant by the time it was closed, nor that it would not attract appropriate community uses if it were restored. Mr Woolman's findings on the potential uses of the Hall illustrate a wide range of community and cultural purposes which could be served if the Hall were restored. It would have a practical use in the local and in the wider community. Nor am I persuaded that it is material that Bridge of Allan is better served by the provision of recreational and cultural facilities than other districts in the petitioners' area. The argument that in comparison with other districts Bridge of Allan can somehow afford to lose the Museum Hall because of the other facilities which exist there is somewhat lacking in taste as well as being irrelevant to the central issue. If a community has developed and had the benefit of a wide range of facilities over its historical life it is likely that that has been the product of local pride and the application of locally generated resources. Reduction of all to the lowest common denominator is not an attractive policy.

[8] The nature of the criteria applicable was discussed in East Lothian District Council v National Coal Board 1982 S.L.T. 460, which has been followed since then. It is a matter for the discretion of the court, having regard to the whole circumstances of the case. In the final analysis, the structure of the Museum Hall has so deteriorated that its restoration cannot be justified in view of the total cost which would fall on the wider community, and I am satisfied that authority must be given for the disposal.

[9] If that is to be done, however, it must be subject to conditions. The likely proceeds of sale would not provide an alternative building. There is no question in this case of requiring the acquisition of other land for a replacement facility. On the other hand, it is appropriate that the proceeds of sale, less any necessary expenses of disposal, be applied for the benefit of the community of Bridge of Allan. The reporter assumed that the accumulated revenue deficit built up in the period between 1990 and 1995, of £66,146, would absorb any proceeds likely to be achieved from sale. I was assured that that revenue deficit would not be applied against the proceeds. The condition will be drafted to ensure that result.

[10] A more difficult question is whether there should be a condition requiring the retention and restoration of the front elevation of the building as part of any future redevelopment. It is accepted that the front elevation has an important role in the townscape of Bridge of Allan, and there are obvious advantages in restricting redevelopment to the area behind the façade. But there are problems. In the first place there may be considerable physical difficulty is achieving the objective of such a condition. The foundations of the front elevation may be as suspect as those further into the site. Further the front wall provides structural support to the roadway, with a considerable fall in ground levels away from the boundary. In addition there may be a structural interdependence between the front elevation and the rear parts of the building. The condition may prove to be impossible. Secondly, the problems anticipated may be reflected in any price offered for the site. The District Valuer has provided a report on value. It would not be appropriate to comment on his opinion in advance of advertisement of the site following the disposal of the petition and negotiations with interested parties. But I think it essential to stipulate specifically that any sale should be at a price which, having regard to the conditions negotiated, is reasonable in his opinion. Lastly, the petitioners seek authority for sale for housing purposes only. That may restrict the price available on the open market. But this aspect of the matter has not been controversial.

[11] I shall therefore authorise the disposal of the subjects on condition that:

1. The subjects shall be exposed for sale for redevelopment for housing and ancillary purposes only.
2. Missives shall not be concluded without the approval of the District Valuer of the price proposed.
3. It shall be a condition of the missives, to subsist notwithstanding any subsequent conveyance, that the front elevation of the Museum Hall shall be retained, and shall be restored in appearance and condition, as a permanent feature of the redeveloped subjects.
4. The proceeds of sale of the subjects, less any necessary expenses of disposal, shall be held as a common good fund for the benefit of the community of Bridge of Allan and shall be applied for that purpose in such manner as the petitioners shall determine from time to time in consultation with the Bridge of Allan Community Council.

[12] For the avoidance of doubt, it should be understood that if a sale cannot be negotiated on these conditions, the petitioners will require the authority of the court to dispose of the subjects otherwise.