New Portobello High School - PPAG win legal appeal

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New Portobello High School - PPAG win legal appeal

Postby seanie » 12 Sep 2012, 09:10

admin: For earlier discussion on Portobello High School on Portobello Park see the following threads:


Judgement to be posted 10:30am
Last edited by wangi on 12 Sep 2012, 14:30, edited 1 time in total.
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Re: New Portobello High School - PPAG Judicial Review

Postby Franck » 12 Sep 2012, 10:47

Well, who won?
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Re: New Portobello High School - PPAG Judicial Review

Postby wangi » 12 Sep 2012, 10:54

PPAG have won their legal appeal, see http://www.scotcourts.gov.uk/opinions/2012CSIH69.html
...

(v) Remedy
[43] In the result we consider that the petitioners are, at this stage, entitled to:

(i) Declarator that the Council have no power, under the 1973 Act or otherwise, to appropriate for use as a school any part of the inalienable common good land at Portobello Park; and

(ii) Reduction, as ultra vires, of the Council's decision of 26 April 2012 insofar as relating to the appropriation of inalienable common good land at Portobello Park for use as the site of the new Portobello High School and associated community facilities.

In our view, the circumstances of this case fall well short of the exceptional character which has, in rare cases such as Grahame v Magistrates of Kirkcaldy, been held to justify the withholding of legal remedies to which a party is otherwise entitled. And although the matter was not fully argued before us, the present dispute would also appear to fall outwith the scope of any relevant jurisdiction of the Lands Tribunal for Scotland under the Title Conditions (Scotland) Act 2003. Thus, regardless of the Council's statutory powers of appropriation, an unresolved difficulty would be the continued existence of the title restriction quoted at paragraph [2] of this opinion.

Conclusion
[44] For the reasons given above, we shall allow the reclaiming motion; recall the interlocutor of the Lord Ordinary dated 7 March 2012; repel the respondents' first, second, third, fourth and eighth pleas-in-law; sustain the petitioners' first, second, and third pleas-in-law; and grant decrees of declarator and reduction as sought in the petition at statement 4(a), (e) and (f).
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Re: New Portobello High School - PPAG Judicial Review

Postby rmolehusband » 12 Sep 2012, 10:55

Franck wrote:Well, who won?

The children of Portobello have lost.
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Re: New Portobello High School - PPAG Judicial Review

Postby Franck » 12 Sep 2012, 10:59

wangi wrote:PPAG have won their legal appeal, see http://www.scotcourts.gov.uk/opinions/2012CSIH69.html
...

(v) Remedy
[43] In the result we consider that the petitioners are, at this stage, entitled to:

(i) Declarator that the Council have no power, under the 1973 Act or otherwise, to appropriate for use as a school any part of the inalienable common good land at Portobello Park; and

(ii) Reduction, as ultra vires, of the Council's decision of 26 April 2012 insofar as relating to the appropriation of inalienable common good land at Portobello Park for use as the site of the new Portobello High School and associated community facilities.

In our view, the circumstances of this case fall well short of the exceptional character which has, in rare cases such as Grahame v Magistrates of Kirkcaldy, been held to justify the withholding of legal remedies to which a party is otherwise entitled. And although the matter was not fully argued before us, the present dispute would also appear to fall outwith the scope of any relevant jurisdiction of the Lands Tribunal for Scotland under the Title Conditions (Scotland) Act 2003. Thus, regardless of the Council's statutory powers of appropriation, an unresolved difficulty would be the continued existence of the title restriction quoted at paragraph [2] of this opinion.

Conclusion
[44] For the reasons given above, we shall allow the reclaiming motion; recall the interlocutor of the Lord Ordinary dated 7 March 2012; repel the respondents' first, second, third, fourth and eighth pleas-in-law; sustain the petitioners' first, second, and third pleas-in-law; and grant decrees of declarator and reduction as sought in the petition at statement 4(a), (e) and (f).

rmolehusband wrote:
Franck wrote:Well, who won?

The children of Portobello have lost.


Not good news.
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Re: New Portobello High School - PPAG Judicial Review

Postby Snow White » 12 Sep 2012, 11:03

Well said Molehusband. There is no victory in the children’s loss. PPAG would do well to remember this.
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Re: New Portobello High School - PPAG Judicial Review

Postby portygeoff » 12 Sep 2012, 11:06

A loss for the children of Portobello and a victory for some small minded NIMBY's. :(
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Re: New Portobello High School - PPAG Judicial Review

Postby Franck » 12 Sep 2012, 11:09

As someone not affected either way by this, I'd be looking to question the council and hoping they have a fall back.Why have they been so confident ( the same could be said about posters on here) but been so wrong?

Call the law an ass, be offended that a small group of nimbys can have such a dramatic affect on kids education, but accept the ruling is legal and the other lot were right.

And now, what are the alternatives?
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Re: New Portobello High School - PPAG Judicial Review

Postby lg1726 » 12 Sep 2012, 11:10

portygeoff wrote:A loss for the children of Portobello and a victory for some small minded NIMBY's. :(


Could not agree more. This is a sad day for Portobello kids current and future generations. Their educations and futures have been sacrificed to allow some NIMBYs to maintain a leafy outlook from their windows. It is a travesty!

Even if the CEC were minded to appeal the appeal (it is possible), this would take ages and delay still further!
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Re: New Portobello High School - PPAG Judicial Review

Postby atanabalan » 12 Sep 2012, 11:14

The Council didn't have the right to try and put the new school there.

We need to focus on finding a usable site and get the job done properly. There is no gain to had by pointing fingers at incompetent council staff, poor legal advice, or even PPAG.

I want a school for my kids, but it looks like the eldest will not get a new one at all.

Castlebrae looks like an option...

The old Scottish Power site

Let's just get this done!
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Re: New Portobello High School - PPAG Judicial Review

Postby Lones » 12 Sep 2012, 11:27

Dreadful news. The poor kids of Porty High.
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Re: New Portobello High School - PPAG Judicial Review

Postby rmolehusband » 12 Sep 2012, 11:41

atanabalan wrote:The Council didn't have the right to try and put the new school there.


Well, unless the council has a trick up its sleeve, it is indeed back to the drawing board. However, lets keep the legal decison in context.

The council exists to do what the residents of Edinburgh want. In the absence of unanimity, they must act for the majority. No one can be in any doubt what the majority of Portobello residents and their children want. They council may not have the legal right to try and put the new school there, but given the overwhelming public support for building a new school on that site they clearly have the mandate to do so and it was clearly the right thing to do for the community of Portobello.

The bottom line is that our children have been deprived a new school by a small minority of the community. These people found a valid legal reason to object and had the right to do so. That doesn't mean they were right to do so. The decision simply means that the council does not have the legal right to build on the park, not that building on the park is or was wrong. This is a triumph of legal subtlety over popular democracy.


(And, welcome atanabalan, no doubt only the first of an army of one post wonders appearing out of the woodwork now)
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Re: New Portobello High School - PPAG Judicial Review

Postby wangi » 12 Sep 2012, 11:41

Maureen Child wrote:Dear All

FYI - see below. Devastating for Portobello!

Personally, I have a Plan B and will be discussing various options with colleagues this afternoon after we have absorbed this devastating and totally unexpected news.

We do need to get together as a whole community, and decide what is the best way forward..

Maureen


Kelly Murphy wrote:Subject: The City of Edinburgh Council - Reaction to ruling on new Portbello High School court appeal

The Court of Session has issued a judgement today, 12 September 2012 in relation to the case brought against the City of Edinburgh Council by Portobello Park Action Group Association.
Councillor Paul Godzik, Convener of Education, Children and Families, said; “We are surprised and extremely disappointed with today’s decision and I am sure the vast majority of the local community will share our disappointment. There remains a compelling argument for the new school. We are now seeking legal advice on our next steps.”

Notes to editors;
The judgement can be found here;
http://www.scotcourts.gov.uk/opinions/2012CSIH69.html

Kelly Murphy, Media Officer,
0131 529 4489
kelly.murphy@edinburgh.gov.uk

also at http://www.edinburgh.gov.uk/news/articl ... urt_appeal
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Re: New Portobello High School - PPAG Judicial Review

Postby wangi » 12 Sep 2012, 11:45

Anandan, not sure how much you've kept up to date with this over the years... but the park is the best worst option. There has been extensive consultation & deliberation on this issue - it wasn't just plucked out of thin air. Scottish Power site, Harry Lauder rd etc and all no-go. Build on site really does need the area occupied by St John's (but what about it?) - and this was the 2nd option... That's why people are very frustrated that a small number of people have been successful in denying our community the high school it desperately needs

Castlebrae isn't even in the catchment...
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Re: New Portobello High School - PPAG Judicial Review

Postby AndyB » 12 Sep 2012, 11:50

This is an absolute joke. Time and time again it is approved and this is somehow not good enough. What is our right of appeal? Do we have a right of appeal? If not why not? The law is an ass. This will now cause much unrest in our community and feelings of anger will be running very high. I hope that these small minded people that are ruining the education of our children are proud. Up until now we have listened to them and watched as they waited until the very last minute to appeal each time but I think that any feeling we did have will now be elevated to anger.
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Re: New Portobello High School - PPAG Judicial Review

Postby seanie » 12 Sep 2012, 12:02

Castlebrae isn't in the catchment but...the arguments about other sites not being viable were true. There are very few sites suitable for a new PHS, the existing site isn't one of them, and the urgency in replacing PHS only increases.
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Re: New Portobello High School - PPAG Judicial Review

Postby Porty » 12 Sep 2012, 12:10

Well we always said we would have to abide by the law. All along we've been led to believe we were in the legal right, turns out not. I feel totally devastated for the school, its community and the community at large. Who know where we go from here.

Congratulation to the Connelly's, Cairns, Hawkins, Dunn and the rest of the selfish blurts. You stopped the school- you must be ecstatic. You need to live with it now tho!
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Re: New Portobello High School - PPAG Judicial Review

Postby atanabalan » 12 Sep 2012, 12:16

The "best worst option" is not an option if you don't get to build the school.

I understand that the decant effectively only leaves the existing site + St John's.
There has been suggestion of an appeal of the appeal - I do not claim to understand the legal subtleties but the rejection seemed solid.
The Council does indeed exist to do what the residents of Edinburgh want - regrettably, it also has to do this within the law. Ass or otherwise, judgement has come down against us today so we must sort out what plan b is quickly and learn from the mistakes of the past.
'Mistakes' because despite majority opinion, and perhaps even previous legal counsel, our plan A has not succeeded so far.

rmolehusband - thanks for the welcome. I will not troll nor troll-hunt. Posting on talkporty does not sway planning commitees, councils or courts.

Angry as we are - we must move forward else the school will never be built. anywhere!
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Re: New Portobello High School - PPAG Judicial Review

Postby AndyB » 12 Sep 2012, 12:23

Porty wrote:Well we always said we would have to abide by the law. All along we've been led to believe we were in the legal right, turns out not. I feel totally devastated for the school, its community and the community at large. Who know where we go from here.

Congratulation to the Connelly's, Cairns, Hawkins, Dunn and the rest of the selfish blurts. You stopped the school- you must be ecstatic. You need to live with it now tho!


Do you honestly think they will lose any sleep over it?
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Re: New Portobello High School - PPAG Judicial Review

Postby Grunk » 12 Sep 2012, 12:26

Perhaps next time they decommission a North Sea oil platform, we could see if we can have it to build a school on.

I think the repercussions of this will last a long time, What a shame for the kids, for progress, for common sense and for Portobello.
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Re: New Portobello High School - PPAG Judicial Review

Postby lg1726 » 12 Sep 2012, 12:27

Do you honestly think they will lose any sleep over it?


I suspect they always have and will continue to sleep well,unlike many of us worrying about the education future for our children. They may find the local community less enthusiastic to support any of their future causes!
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Re: New Portobello High School - PPAG Judicial Review

Postby seanie » 12 Sep 2012, 12:28

I'm not sure the existing site + St John's is a viable option. St John's have made it perfectly clear they don't want to move, and the time involved in first relocating St John's may be too long even if they were amenable. Even assuming the combined site was available, you'd still be looking at huge additional costs for a decant that currently aren't budgeted for.
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Re: New Portobello High School - PPAG Judicial Review

Postby gillian » 12 Sep 2012, 12:43

PPAG may have won the legal battle, the moral war however was lost by them sometime ago. No Andy, they won't lose any sleep over it. Selfish, small minded people tend not to. Live with it they will.
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Re: New Portobello High School - PPAG Judicial Review

Postby seanie » 12 Sep 2012, 12:47

PHS is still a very good school, but also still in urgent need of replacement. The important thing is how we now do that, given the extreme constraints.
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Re: New Portobello High School - PPAG Judicial Review

Postby wangi » 12 Sep 2012, 13:04

http://www.snp.org/media-centre/news/20 ... l-decision
MackAskill disappointed by school decision

Commenting on the surprise announcement that an appeal against construction of the new Portobello High School has been accepted by the Court of Session, Edinburgh Eastern MSP Kenny MacAskill said:

“I am surprised and hugely disappointed by this decision, which I think it is fair to say no one was really expecting.

“We’ve currently got over 1,300 kids being educated in a building that is falling down – this just isn’t sustainable.

“While it is unfortunate that the new school is to be built on park grounds, the proposals do of course include a swimming pool and community sports pitches.

“The Council has my full backing in any attempts to further appeal this decision, or to explore alternative options. There currently is no plan B, but whatever happens a new school needs to be constructed as soon as possible.”
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Re: New Portobello High School - PPAG Judicial Review

Postby Mark Cameron » 12 Sep 2012, 13:07

Very worrying that Kenny MacKaskill is stating there is no plan B.

I think a community meeting needs to be convened at the earliest opportunity with the council in attendance to ensure momentum on getting this school built is not lost -whether that be appealing the appeal or agreeing a new site.
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Re: New Portobello High School - PPAG Judicial Review

Postby Chas » 12 Sep 2012, 13:09

rmolehusband wrote:No one can be in any doubt what the majority of Portobello residents and their children want. They council may not have the legal right to try and put the new school there, but given the overwhelming public support for building a new school on that site they clearly have the mandate to do so and it was clearly the right thing to do for the community of Portobello.


atanabalan wrote:There is no gain to had by pointing fingers at incompetent council staff, poor legal advice, or even PPAG.


Whilst I am as devastated as everyone else, PPAG now have the backing of the Law, saying the Council was wrong all along and that the conditions on which the land was given to the community do not allow it to be built on. There is no one but the Council and their Legal advice to blame, although pointing fingers is useless; even if PPAG had not challenged the appropriation, it would still technically, in law, be wrong to build a school there. So although we may be in the majority, common sense will not prevail.

The only question I believe is worth addressing is, where do we build the school now?
He attacked everything in life with a mix of extraordinary genius and naive incompetence, and it was often difficult to tell which was which - Douglas Adams
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Re: New Portobello High School - PPAG Judicial Review

Postby lg1726 » 12 Sep 2012, 13:13

Kenny MacKaskill is, as well as our local MSP, the Cabinet Secretary for Justice and to state that the council has his backing to appeal the appeal is significant!
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Re: New Portobello High School - PPAG Judicial Review

Postby fresian » 12 Sep 2012, 13:24

Not a problem for those who complained. Ian Ross's son was at Heriots, and Alison Connely's go to Holyrood. It would have been a different story if neither had these options available to them. It's the kids and the community who lose out. I also think it time someone called for a vote of no confidence in the PCC officebearers.
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Re: New Portobello High School - PPAG Judicial Review

Postby wangi » 12 Sep 2012, 13:26

MP RESPONDS TO PORTOBELLO HIGH SCHOOL COURT APPEAL RULING

MP for Edinburgh East Sheila Gilmore has responded to the “devastating” news that the judgement in the case brought against the City of Edinburgh Council by Portobello Park Action Group Association. The Court of Session allowed an appeal to prevent the construction of a new high school on the park.

‘Pupils, parents, staff and residents in Portobello are so deeply disappointed with today’s ruling. The news is devastating.

‘However, this is not the time for recriminations.

‘Children and families in Edinburgh East still need a new Portobello High School and it is crucial that it is delivered soon.

‘The City of Edinburgh Council must urgently hold a “summit” of the key members of the community. whatever their views on previous proposals our children deserve urgent action'
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Re: New Portobello High School - PPAG Judicial Review

Postby atanabalan » 12 Sep 2012, 13:32

mcdryburn wrote:Very worrying that Kenny MacKaskill is stating there is no plan B.


I feel that this is about building a new PHS _somewhere_; We have the funding and the will, just not the site.
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Re: New Portobello High School - PPAG Judicial Review

Postby Porty » 12 Sep 2012, 13:33

AndyB wrote:
Porty wrote:Well we always said we would have to abide by the law. All along we've been led to believe we were in the legal right, turns out not. I feel totally devastated for the school, its community and the community at large. Who know where we go from here.

Congratulation to the Connelly's, Cairns, Hawkins, Dunn and the rest of the selfish blurts. You stopped the school- you must be ecstatic. You need to live with it now tho!


Do you honestly think they will lose any sleep over it?


No I don't.
.....ambition makes you look pretty ugly
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Re: New Portobello High School - PPAG Judicial Review

Postby Porty » 12 Sep 2012, 13:37

atanabalan wrote:
mcdryburn wrote:Very worrying that Kenny MacKaskill is stating there is no plan B.


I feel that this is about building a new PHS _somewhere_; We have the funding and the will, just not the site.


The funding was for a school on Portobello Park. It is not safe to assume the funding will remain, it is extremely unlikely.
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Re: New Portobello High School - PPAG Judicial Review

Postby wangi » 12 Sep 2012, 13:47

http://www.andywightman.com/?p=1562
Lady Paton handed down a dramatic decision of the Inner House of the Court of Session today and ruled that Edinburgh Council do not have the legal authority to build a new school on Portobello Park. This has been a long-running saga and has, tragically, caused very deep divisions in Portobello which I will come to in a moment. Briefly the story is as follows.

...

...
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Re: New Portobello High School - PPAG Judicial Review

Postby Porty » 12 Sep 2012, 13:54

andy wightman wrote:http://www.andywightman.com/?p=1562
Lady Paton’s ruling misses out an important fact. The 1898 disposition that transferred the park to Royal Burgh of Edinburgh was a feu disposition. The burdens narrated at [2) are therefore feudal burdens. The Abolition of Feudal Tenure (Scotland) Act abolished all feudal burdens unless any Superior took action to preserve them. No application was made in this instance and thus the restrictions are, in my view, irrelevant. I do not think this alters the fundamental decision of the Inner House since the land remains common good land and thus subject to the law on common good.

Finally, let us not forget in this whole sorry tale the young people of Portobello who deserve a new school. It is tragic that this now seems as distant a prospect as it did at the beginning of this saga.
...

...


In court, I recall one of the Judges asking about this aspect of the case. I was alarmed that he appeared to have missed the feudal nature of the disposition. I'm not an expert by any stretch, but to me, this is a fundamental flaw in today's judgment.
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