Councillors asked if they wish to test the law over Cooper Park court

Councillors could test the law over Cooper Park courts
Councillors could test the law over Cooper Park courts

COUNCILLORS WILL CONSIDER today if they are prepared to test the terms of a long standing trust deed under which Elgin’s Cooper Park is managed by the local authority.

In question is the long term future of the Tennis Courts in the park, which form part of the Cooper Park Public Trust.

At present the courts are primarily used by the Elgin Lawn Tennis Club as part of an informal arrangement for which the club pay £92.25 each month from April to September and £61.50 from October to December.

While the arrangement is informal, the tennis club have carried out small repairs on the court – and now they are seeking something more permanent with a long term aim of obtaining a Community Asset Transfer of the courts.

However, the terms of the trust deed would not permit such a transfer – and as an alternative, Councillors are being asked to consider a long term lease. The main stumbling block on that is that may also be prohibited under the trust deed – which is why Councillors are being asked to consider going ahead and “testing” the legal standing of the deed.

In a report on the agenda for today’s meeting of the Full Council, the report author, Mark Palmer, advises: “In terms of a 25 year lease it is clear that the Council would be in breach of the terms of the trust.

“The risks are whether anyone or any group would be minded to challenge the Council for such a breach and also the Council setting a precedent for breaching the terms of trust deeds. The Club and or the Council could consult with the Elgin Community in respect of a long term lease and this would mitigate the risk of a challenge to some degree.

“The Council does not currently have resource available to undertake such a consultation, without impacting on other commitments of the Community Support Unit.”

Mr Palmer adds that the Council has advised the trustees of the Grant Lodge Trust that a petition to the Court of Session would be required to vary the terms of the Cooper Park Trust to enable their 25-year lease bid to be approved.

He adds: “There are differences between the two scenarios and it is these that the Council could rely on to defend different treatment i.e. the use of Tennis Courts will continue to be in terms of the Trust Purposes (recreation) while Grant Lodge Trust require a change in the Trust Purposes as well as permission for a long lease.

“As a Public Trust (and not Common Good) Cooper Park has conditions/rules that are particular to the park e.g. the ‘no long lease’ rule. This fact should further protect us from parties attempting to rely on precedence for cases that relate to property outwith Cooper Park.”

No firm recommendation is made to Councillors who are asked to assess the risks associated with the tennis club request and decide on what length of lease to offer.