Commentary on Sections Part 4 – Supplementary Section 49 – Disapplication of statutory and other restrictions on acquisition and use of certain land
209.Section 63 of the Paisley Improvement Act 1877 required the local Council to lay out the land of the former race-course as a public park for all time. The land to which this section refers is St James’ Park. Some of the land will be permanently acquired for a viaduct to carry the new railway across the park and rights for access for maintenance will be required. During construction of the railway an area of the park will be occupied or used as a worksite. Section 49 therefore disapplies section 63 of the 1877 Act in respect of the land which is permanently acquired for the railway, and the land which is temporarily occupied or used for maintenance during the time when it is so used.
210.This land is land which is held by local Council for the common good. Under section 75 of the Local Government (Scotland) Act 1975 (c.65) if there is any question as to the right of a local authority to dispose of such land the authority may apply to the Court of Session to authorise the disposal. For the avoidance of doubt and in order to remove any need for a subsequent reference to the sheriff of the Court to authorise its acquisition, Section 49 also makes clear that any restriction arising from the status of the land as land held for the common good is not to prevent the authorised undertaker acquiring the land or rights over it.