New Portobello High School - PPAG Judicial Review

[Scoop]

Anyway, back to the question of mediators. Are mediators not meant to be impartial? So, that can't be right.

[seanie]

[Puerto bella]

I did, a couple of pages back. I should get back to my corner now, dont want to wind you up to your usual frenzy - Scoop is doing a good enough job on that.

All this stuff is hot air anyhow- Lady Dorrian will decide and that will be that. So what's the point in the topic just a bit of late night PPAG bashing to get you into your stride for a good rant on tinternet.

[Scoop]

[Makaveli]

[seanie]

[Scoop]

[seanie]

The Council aren't proposing to dispose of inalienable Common Good. They're proposing to appropriate it.

[Scoop]

Ok, but does the same apply? Can they get court permission to appropriate it, even though they don't necessarily need to get that permission? I'm just trying to get me head round the law.

[Porty]

Oops sorry to interject. Sean will do this much better than i can.

The council are only proposing to appropriate a small percentage of this particular piece of ICGL (around 6%) whilst neither disposing or appropiating the remaning 94% or thereabouts.

If my understanding is correct, should the council wish to build houses where they intend building the school, then they MAY have to apply to the court to do so.

The law seems to treat appropriation as much less significant than disposal and there is therefore no provision or mechanism for a court procedure. Therefore It is impossible to understand. why PPAG's insistence that the council must seek approval from the court, for appropriation,makes any sense.

[Scoop]

6%? that's a typo, right?

[seanie]

No idea of the %, but the core PPAG case is that it is impossible for the Council to appropriate any inalienable Common Good land. It's not a question of getting permission from the courts, it is simply unlawful.

[seanie]

Going back to the legal arguments and Section 75(2) of the Local Government Scotland Act, PPAG did suggest that the lack of reference to appropriation might be an accidental omission, but they insisted that if there was a deficiency in the law it was for the Scottish Parliament to rectify not the courts.

They also argued, perhaps trying to anticipate a Council line of argument, that they would only be too happy if the School could be considered under Section 75 (2), as all they had ever wanted was an independent arbiter, but that sadly the wording of the act didn’t support it. In that they’re probably right. Certainly in case law there have been times when ‘disposal’ has been construed in a very wide sense, perhaps wide enough to include alienations and appropriations short of sale or destruction, but given that appropriation is included as a distinct term in (1) it would be hard to argue that disposal in (2) also meant appropriation.

PPAG then referred to various cases to justify the interpretation that appropriation of inalienable land is unlawful. However, they conceded it was difficult to find cases that were a close parallel, and their argument was more by inference. They didn’t produce a single instance where a judge had offered an opinion that it was unlawful, as a matter of principle, to appropriate such land. Given that it’s a fairly simple concept to express its odd why, if true, it’s never been said in clear and unambiguous terms.

Having gone through earlier case law PPAG then turned to the recent South & North Lanarkshire cases, where Local Authorities had been given the green light to proceed with building schools in inalienable Common Good land. Here it was argued that the courts had indeed been correct to conclude that what was proposed did not constitute a disposal under Section 75 (2) but had failed to consider the question of appropriation. So in effect the judges in the Inner and Outer Houses had erred by not considering the issue widely enough and not recognising that what was proposed, whilst not a disposal under the statue, was nevertheless an unlawful appropriation under Common law.

[Porty]

[Porty]

[Scoop]

It seems like it will be a very small school if it is only to make 6% unaccessible.

[Scoop]

[Porty]

[Porty]

[seanie]

The total area of the land is over 20Ha. The golf course constitutes over 14Ha. The school and pitches combined are probably around 4Ha, or 20% of the total. Porty's line of the argument that the pitches should be excluded is not unreasonable. If they're publicly accessible then they don't really represent a change from the inalienable recreational use of the park. Take them out of the equation and you're probably looking at less than 10% of the total. 6% might be on the low side but it's not far out on that reckoning.

[Scoop]

Is this a different situation to Bigwold Park in Wick?

[seanie]

[Scoop]

Typo. No more. No less.

[seanie]

Well there was a proposal to build a school on Common Good land at Bignold Park, and Highland Council received an opinion that the land could not be appropriated, in terms not dissimilar to the argument put forward by PPAG in the Court of Session. But the PPAG argument certainly appears to be inferred, rather than supported by clear authorities in the the case law, and it does lead to what appears to be a somewhat preposterous situation.

[Epykat]

[Scoop]

[Scoop]

Talking of fundraising, does anyone remember the Ladies Night at the Toddler's Hut 20 years ago? Another fundraiser like that might help PPAG. Win win situation for all concerned if you ask me.

[Epykat]

[Porty]

It was St James who were duped into accepting the booking . They were unhappy when the true cause was discovered. .I dont believe anyone is suggesting that you didnt know you were doing your bit to delay the school. you're far from daft.

[seanie]

There's only one case at present. The Bignold Park issue hasn't been brought before a court.

However, as I said, the underlying rationale seems similar to the argument advanced by PPAG. However the opinion offered in the Bignold Park case, at least so far as described by Highland Council, doesn't explain in detail why the 1973 Local Government Scotland Act prohibits appropriation, doesn't make reference to the precedents of the North and South Lanarkshire cases, and doesn't consider the effect of the 2003 Local Government Scotland Act.

[Epykat]

[Scoop]

[seanie]

It was not referred to last week.

If you're arguing a case in law you really have to base it on established law; either statute or judgements in previous cases. You need that to support your opinion.

And in the Bignold Park case, in the absence of an actual case, there's only an opinion. It has no authority.

[Scoop]

[Scoop]