Forthtay Ltd Employee Trust, which owned a plot of land in Greyfriars Gardens for which an application was made under Part 5 of the Land Reform (Scotland) Act 2016, argued that the Scottish ministers had failed to consider the full impact of the potential purchase and had been unduly influenced by irrelevant considerations.

The appeal was heard by Sheriff Timothy Niven-Smith at Dundee Sheriff Court. Young, advocate, appeared for the appellant and McKinlay, advocate, for the respondent.

Invested in success

The subjects comprised the former garden of 1 Greyfriars Garden, which over time became detached from the ownership of the house, located over the road, it used to serve. As a result of the subjects falling into disrepair, various efforts were made to secure their long-term future, including a proposal by Poet’s Neuk, a company limited by guarantee, to turn the area into a public garden with displays highlighting its connection to the former monastery on the site and links to Mary, Queen of Scots.

Poet’s Neuk entered into correspondence with the appellants, who did not want to sell the subjects and sought planning permission to build a café on the site. After Poet’s Neuk obtained planning permission for the formation of a public garden, an application was made to the Scottish ministers under the 2016 Act in February 2023. Having received submissions from the appellants, on 25 January 2024 the respondents granted consent for the exercise of the community right to buy.

Counsel for the appellant submitted that the decision maker had failed to ask whether allowing transfer of the land would be of greater or less benefit to the goal of sustainable development, per section 56 of the Act, than the status quo. The appellant’s development goal would achieve the aim of furthering sustainable economy. The respondent had fallen short of the high standard required when depriving a party of their property rights and became invested in the success of the application due to it being the first application of its kind in Scotland.

For the respondent it was submitted that the respondent had not erred in its approach to sustainable development. The respondent had considered the chronology of failed planning applications by the appellants and the evidence on the current plight of the subjects. No factual basis had been set out supporting a finding that the decision maker could not determine the issues objectively.

Used as a dumping ground

In his decision, Sheriff Niven-Smith said of the meaning of sustainable development: “Counsel for the appellant submitted that of the five principles expounded in the UK strategy document only ‘achieving a sustainable economy’ and ‘promoting good governance’ are relevant to this appeal. I accept that those two principles are relevant to the owners of the subjects’ proposals to site a café or similar business on the subjects. Firstly, erecting a café on the subjects may achieve a sustainable economy and secondly, allowing planning applications/appeal processes to be exhausted promotes good governance. I do not accept that those principles are the only relevant ones in so far as the appeal is concerned.”

He continued: “Whilst the Ministers might – for various reasons – attach less importance to one or other principle there is no reason for ignoring one of the five principles altogether and to do so might suggest a failure to comprehend what is meant by ‘sustainable development’. Having defined supra what is meant by ‘sustainable development’ for the purposes of the 2016 Act it is clearly not simply interchangeable with the term ‘sustainable economy’.”

Considering whether there was any bias in the decision, the sheriff said: “When read in its totality the decision maker formed a view commensurate with the statutory framework of the subjects and their current use and the proposals of the community body’s application and the likely effect that would have on the subjects. It is not an example of the decision maker becoming invested in the success of the application to the detriment of the appellant as submitted for the appellant.”

He went on to say: “The subjects were overgrown and were used as a dumping ground for rubbish left behind by those sleeping rough, those abusing alcohol and drugs. There was material to suggest that thieves used the subjects to hide spoils of criminality. The subjects were even being used by some as a toilet and all these factors were unconducive to the local businesses and were not conducive to attracting visitors to the area. Against that factual matrix the thought process of the Ministers that a poetry garden maintained by the community body for the community as opposed to the current state of the subjects can hardly be said to be absurd.”

Sheriff Niven-Smith concluded: “Having carefully considered the submissions and having reviewed the totality of the decision of the respondent I prefer the submissions of the respondent. I am satisfied that the Ministers had regard to the legal framework and applied the correct test in law to the questions they required to answer. I am not satisfied that they failed to consider material considerations or that they acted irrationally in their decision making. I am not satisfied that there was any real possibility of bias.”

The appeal was therefore refused.