New Portobello High School - PPAG Judicial Review

[seashell]

[seanie]

There was some sort of preliminary hearing on Tuesday, scheduled for 5 hours which couldn't have come cheap. Hearing's still set for December as far as I know.

[wangi]

[Pal of Porty]

I reckon one day will do it though.

[Porty]

Shame about the delay.

Two days in Court won't come cheap. Maybe why PPAG have refrained from organising more loss making events?

Come January 6th, will the Spanish be the only ones celebrating?

[Pal of Porty]

[Porty]

[seanie]

There is a principle that legal action should be raised within a reasonable period of whatever decision being challenged was made. I can't imagine they're challenging the granting of Planning Permission, but rather the decision to locate the school on the park, and that was taken in December 2008. By the time they get to court it'll be over three years since the decision they object to was made.

That being said, I don't think there are any proscribed time limits for a judicial review and I've also read that the Courts are generally reluctant to dismiss things purely on the basis of delay.

[Porty]

[seanie]

[Porty]

"Ros Sutherland, chairwoman of PPAG, said: “As far as we’re concerned, the hearing is going ahead."

Seems an odd thing to say on behalf of the group that is bringing the action. Why does she think people would doubt?

[rmolehusband]

[seashell]

I'm hoping to be able to go along to the Court of Session for at least one of the two scheduled days. Anyone else planning on attending?

[Porty]

yes. have to make a work escape plan. what hours does the court keep?

[wangi]

A comfortable 10-4 normally, innit? (if my jury duty stints are anything to go by)

[seashell]

Yup - should be 10 to 4. This actually ties in with a lot of work-related issues, so hope to go in offical time.

[wangi]

[rmolehusband]

Looks like another 'donations only' race on boxing day.

http://www.scottishathletics.org.uk/ind ... emId=14381
http://scottishrunningguide.com/news.php/1078/

Kept very quiet again.

[seanie]

The Court hearing is less than two weeks away - surely they must have the money for that by now?

[Porty]

I doubt it. Inside track says that PPAG don't have enough funds raised and are having to fork out personally. Must be hoping the run lessens the burden.

[seanie]

Are QCs like taxis? Does the meter keep running as long as things drag on?

[rmolehusband]

[seashell]

You are billed for the actual time counsel spend on the case - considering papers, meeting with clients, drafting answers (this tends to be on an hourly basis) and of course for their time in court (generally on a daily basis). If you use senior counsel, they will often use junior counsel as well, so that is someone else to pay for. Generally, you are billed after the court appearance, by which time you may have accumulated quite a large bill. It may be that PPAG are hoping for costs to be awarded in their favour - which would mean that the council (i.e. the people of Edinburgh) would have to pay for any legal costs they have accrued.
Rest assured that employing counsel is a very costly business indeed.

[Porty]

1 day in the COS will be approx half the cost of two days. PPAG didn't raise enough money to fund one day.

[seanie]

[seashell]

Petition for Judicial Review tomorrow at Court of Session. I'll be there - anyone else coming?

[Bob Jefferson]

Wow, that's crept up on me. Would love to be there but sadly I'm working. Up for some celebratory drinks though. Champagne on ice!

[seanie]

I'll try to go.

My understanding was that the hearing had been rescheduled to two days so all the issues could be gone through. But PPAG's 'Latest News' makes it sound like it could drag on longer; they're appealing for funds for the 'next stage', beyond the Thursday/Friday hearing.

[rmolehusband]

[seanie]

Well I suppose things may become clearer tomorrow.

[Mark Cameron]

Anyone have any news on today's proceedings?

[seashell]

An interesting submission from PPAGs counsel, turning on the interpretation of the statue (Town and Country Planning (Scotland) Act 1974, ss 73 - 75
Basically, their counsel proposed that there is provision for the disposal of inalienable common good land, but not for the appropriation of it. If the land is to be used for a school, rather than sold off, then this is appropriation. The contention is that there is no method provided by statute for a local authority to appropriate common good land. Her ladyship noted that was difficult to see why there should not be power to appropriate if there is power to dispose, to which it was responded that this was not a lacunae in the law, but rather that it reflected the preceding act (1947) which also was silent as regards this issue.
Moving on to precedents, the decision in the case of North Lanarkshire Council found that in that instant it was not a disposal, however it did not appear to consider if it was an appropriation. Her ladyship wondered what else it could be. With SOuth Lanarkshire Council, the arguments turned on whether the particular circumstances constituted a disposal and again did not consider appropriation.
It was contended that if the land continues to be used for a public purpose, then the underlying assumption is that this is an appropriation.
A number of historical authorities were also quoted.
I had to leave before the session ended, so not sure if the Council started their submission.

[seanie]

The Judge did comment on the line of argument...

If a local authority were seeking to build a leisure centre for the benefit of the community on inalienable Common Good land then, according to the PPAG interpretation, they would be prohibited to do so since there was no legal mechanism for such an 'appropriation'.

However should, as an alternative, the local authority seek to buy a site for the leisure centre at considerable public expense, then they could conceivably sell the inalienable Common Good land to fund such a purchase since there was a legal mechanism for disposal.

The judge offered the view that that would be 'preposterous'.

To which Counsel replied 'yes and no'.

[seanie]

The Council only had the last 20 minutes of the day to start their arguments so we didn't hear much, but it was raised that the arguments that constituted the core of the PPAG case bore no relation to the basis for the petition for judicial review or the arguments that lead up to it.

Essentially PPAG have repeatedly argued that the Council had to go to court to get permission. Even today their QC repeated more than once that the petitioners would be satisfied simply if the issue was decided upon by the courts; they desired an independent arbiter.

However, the core of their case is that the issue cannot be decided by the courts; although the council could seek permission to dispose of the land there is no legal mechanism to seek the appropriation of the land. The 1973 Local Government Act is simply silent on the subject and so by presumption it is a legal impossibility.

[seanie]

By extension the previous rulings in the South & North Lanarkshire cases, which would appear to form the basis of the Council's earlier legal advice, were simply wrong. Whilst they appear to have interpreted 'disposal' widely so as to include appropriation, alienation etc. this was wrong and only a narrow interpretation of the legislation was justified, even if the outcomes were preposterous.