New Portobello High School - PPAG win legal appeal

[urchaidh]

[wangi]

[neilking]

[neilking]

[seanie]

The Council's legal argument was never that they had explicit statutory powers under the 1973 act to appropriate inalienable Common Good land. On the question of such an appropriation the act is indeed silent. It was raised during the case that this could well be an omission in the drafting, but it was not a matter for the courts to resolve.

But the Council's case was firstly that the power derived from existing common law and that the wording of the '73 act should be read in that light. Secondly they argued that that the 2003 Local Government Act gave Local Authorities the power to do whatever to advance well being unless there was an express prohibition. Consequently, since there is no act anywhere saying inalienable Common Good can't be appropriated, the 2003 act grants that power over and above any case law.

[seanie]

I also think you've fundamentally misread the implications of this judgement.

It's not at all a question of the Council having acted in a reasonable way; due consultation, planning, backing of the local population etc. The ruling of the court is that such an appropriation is unlawful. The factors you mention are inconsequential to that.

As is the issue of alternative green space. That may be relevant in the case of a disposal, but since this appropriation isn't considered to be a disposal, it would make no difference.

[neilking]

[seanie]

How would your suggested change to the '73 act would make Lady Paton any more amenable should the same proposal come to her again?

[seanie]

And no, the Council weren't simply relying on the 2003 act. They also argued they had the power under Common Law.

[seanie]

And whilst Lady Paton may've approvingly quoted a case equating disposal with appropriation, a central part of the PPAG legal argument, expressed at some length, was that the case didn't involve a disposal. In fact everyone in the first hearing agreed on that. PPAG didn't want it to be a disposal precisely because of the provisions in the '73 act allowing it, and the Council agreed it wasn't because of the precedents of the North and South Lanarkshire case which supported their argument.

[seanie]

Just to expand on that, it was the position of both parties that the appropriation did not constitute a disposal. Only at the very close of the appeal hearing did PPAG's counsel articulate the view that the land would no longer be Common Good; as you say, build a school on it and it's no longer a park.

But if the land would no longer be Common Good it's difficult to see how that could be anything other than an appropriation amounting to disposal. And if it's a disposal you don't need a power to appropriate because there's the explicit power of disposal under the '73 Act.

[lg1726]

So, back to my initial question - can it be sold and built on!??

[seanie]

Yes.

But you need permission from the courts.

Given that the Inner and House looked at the same set of facts and came to diametrically opposite conclusions, how much confidence could you have in applying for permission to dispose?

You'd be as well tossing a coin.

[lg1726]

OK - so that takes us back to an Act of Parliament in order to avoid a court decision and then the preference of a private act versus a public act! However, it does suggest that a build on the park is still a possibility and could still be Plan A, but with a plan B in the hip pocket, just in case!?

[seanie]

All the arguments in favour of the school on the park remain. It's by far the best site of an extremely short list of options. And those inferior alternatives are neither quick nor cost effective.

[neilking]

[neilking]

[neilking]

[lg1726]

[neilking]

[lg1726]

[mr magnolia]

[Maria]

Recent letters in the Evening News and

[neilking]

[Porty]

I believe the council's reasoning was; it made no difference whether the land was CG or not. They took legal advice, a key part of which was the North and South Lanarkshire cases- there was every reason to believe that permission to build a school on CG land would not by a matter for the court.

Andy Wightman doesn't think it would be sensible to test the CG status of Portobello Park in court and I bow to his experience. It would be remarkable and intruguing if a community were to actively pursue a "non common good" status through the courts.

[mr magnolia]

I think the council were clearly wrong then to think it made no difference if the land is common good, as the court (or one bit of it) seems to think it does.
I'll have to have a look more closely at andywitemans reasoning to understand why it wouldn't be clever to get it clear as to whether it is or isn't common good land, but his interest is in common good land while ours in in high schools. I'd suggest it's a no brainier to test the common good land status, at least by an independent peer review for the council.

[Porty]

I agree Mr M . worst that can happen is confirmation it is CG. There's no downside for us. Andy didn't elaborate .

[seanie]

Did people think the Council were clearly wrong when Lady Dorrian agreed with them?

[seanie]

On the CG status, the land was also acquired under statutory powers, the Edinburgh Extension Act I think, so that's another reason that the CG status is maybe questionable. However I think it may be a little late in the day for that.

[mr magnolia]

[Sceptic]

We have two opinions, one for, one against. Who is to say which one is correct? If the Couincil wishes, surely there must be a method of referring the difference of opinion to a higher Court? Supreme Court? Why not, I was always anticipating such a move if the appeal had failed.
If not, have the law changed, with a retrospective to cover the present situation. The only other option is to builkd a school outwith Portobell, denying the area it's facilities for Community Activities. Would people travel to Craigmillar? Would people buy a house in the area if their children had to travel some distance to school?

And all to do with property prices, the square root of nothing to do with parkland.

[neilking]

[wangi]

[wangi]

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