The Square is Common Good and had been used by the community free of charge for years, it having been gifted to the then Burgh in the late 1960s. Free community events had regularly taken place at The Square, including local markets, and local cultural and festive events.

Notwithstanding this, the council resolved to go out to consultation on the proposed scheme. On conclusion of the consultation the council decided to approve the scheme and lodged the application for consent with the court under section 75(2) of the Local Government (Scotland) Act 1973.

The Community Council instructed Duncan Swarbrick of Swarbrick Law, Aviemore, and Scott Blair, advocate, with Terra Firma Chambers, who prepared detailed defences to the application. Among other concerns, it was noted that the adoption of the scheme was not a course which followed the recommendation of council officers and an issue arose about the lack of reasons as to why that recommendation was not followed. Concern was also expressed about whether the consultation followed the requirements of the Community Empowerment (Scotland) Act 2015 and the statutory guidance relating to consultation.

Faced with the opposition of the Community Council, just ahead of the next calling of the case, the council announced it had decided to no longer proceed with the application. At that hearing on 4 June 2025, before Sheriff Eilidh McDonald, where she described the case as “difficult, complex and novel,” the Community Council sought expenses from the council and sanction for counsel. Although opposed by the council, the sheriff determined that it was competent to award expenses to a community council opposed to a Common Good application and went on to award expenses and sanction.

Duncan Swarbrick told Scottish Legal News that the case is of some importance.

He said: “Although the council did not formally concede that the concerns of the Community Council were justified, it is difficult to escape the conclusion that they recognised the force of the case against them.”

He added: “Whatever the merits of the case, the case has stressed the important role of a community council in opposing Common Good applications and the financial risk that the council runs if the application is not successful.”