New Portobello High School - PPAG Judicial Review

[Betty Windsor]

[seanie]

In the morning, when the Council's QC was finishing her case, Porty was sitting on the one of the comfy seats at the back.

So the standard eyes-to-the-front of the head was quite sufficient.

[Betty Windsor]

[seanie]

I'm afraid you weren't paying attention.

The core of the PPAG is that it is simply unlawful to appropriate inalienable Common Good land. It's not a question of getting permission from the courts, it just can't be done.

[Betty Windsor]

[Porty]

Betty you still appear to be having difficulty recalling which QC is representing the council. How can I assist?

Councils QC= Female
PPAG QC = Male

Do a screen capture -Cut this pic out and carry it with you so you dont get mixed up again.

30-RLMartinQC-2011.jpg (10.01 KiB) Viewed 9514 times

W

[seanie]

The Council's case had more aspects to it.

[rmolehusband]

[Porty]

[Porty]

[Epykat]

[Porty]

[Betty Windsor]

Someone from the PPAG side left their scarf in court. Best get in touch with Diana if you want it back.

[Betty Windsor]

[Epykat]

[seanie]

Roy Martin suggested that PPAG would only be too happy for the proposal to be considered by the courts under section 75 of the '73 Act if that were possible, as all they wanted was an independent arbiter on the issue.

[seanie]

[Betty Windsor]

[wangi]

[Betty Windsor]

[Porty]

[Makaveli]

But one of the main arguments PPAG have had for not building on Porty Park is loss of green space - yet the next minute they are suggesting other parks in Porty to build the new school on.

It cetainly does seem very much to be NIMBYism.

[seanie]

Back to the case..

When it came to the issue of delay, the thrust of the Roy Martin argument was that the decisions in 2006 and 2008 were merely provisional, conditional on various subsequent actions that may or may not have come about. Whilst they may’ve signalled an intention to appropriate they weren’t decisions to appropriate. A legal challenge might not have been allowed as competent at those earlier stages. Also, given the difficulty and expense for individuals in bringing a legal challenge, there was nothing unreasonable in them waiting until subsequent events made the prospect of appropriation imminent, rather than a theoretical possibility. In fact PPAG are arguing that no decision to appropriate has yet been taken, as the requirements of the ’59 Town Planning Scotland Act have not yet been fulfilled, and this is key to the process.

I think a problem with that line of argument is that the issue is not when it was convenient to bring a legal challenge, but rather when it was possible to bring a legal challenge. The Scots Common Law principles behind mora, taciturnity and acquiesence involve further tests, but the basic idea behind delay is that an action should be brought within a reasonable time of when it becomes possible to do so.

That would seem to be after the decision in December '08.

[Betty Windsor]

[seanie]

It's very difficult to tell how the Judge viewed the respective cases. The only insight that I could glean was the questions the Judge raised right at the end, when both sides had concluded.

The Judge said she was finding difficulty reconciling the North & South Lanarkshire cases with the PPAG argument. If the PPAG case is correct, then in those cases both the Inner and Outer houses of the Court of Session simply failed to notice that they were allowing an unlawful act to occur. I think the word used by her ladyship to describe that was "incredible".

Not on a par with preposterous, but it may indicate a certain disquiet with the thrust of the PPAG argument.

[Porty]

Based on no more than personal observation. The Judges' demeanour , expression and body language combined with what she said suggested to me that she did find the PPAG position incredible. However, because the advancers is held in such high regard there may just be something to it.
For the previous judgments to be wrong, it would imply the Judges didn't realise a change of use constituted appropriation. It seems far fetched.
Wonder if she will discuss the matter with Lord Drummond Young et al or is that not the done thing?

[seanie]

It's difficult to see how the core PPAG argument could be supported. It's essentially very simple; it is unlawful to appropriate inalienable Common Good land in any circumstances.

That's a very simple legal principle to express, and to understand. And yet there wasn't a single precedent produced in which this was expressed. There isn't a single instance, of a single judge, in any Common Good case, ever articulating this basic point. The argument was entirely inferred.

Quite the reverse. The case law is littered with judges weighing up the merits or otherwise of various proposals, sometimes allowing them and sometimes not. You only have to look at the Lanarkshire cases in which the Inner & Outer Houses of the Court of Session gave the greenlight to what were, if PPAG are correct, unlawful appropriations of inalienable Common Good land.

PPAG appear to have discovered a fundamental principle of Common Good law that, until now, the entire legal profession has been unaware of. Which seems a bit of a stretch...

[Puerto bella]

Was any indication given on the timescale for the judgement?

[seanie]

No. It could be several months and, looking at other cases, at least several weeks seems likely. If the Judge is persuaded on the delay issue then maybe she won't want to contribute to further delay by taking too long, but even then there were various issues raised and to go through them all won't be quick.

[Puerto bella]

My average wait has been 4 months for Inner House; not been to Outer.

[Porty]

FFS! That long?

Average of how many cases? (not a loaded or trick question ) And what's the Mean length of time over those cases?

[Puerto bella]

Yes, infuriating isnt it and yes its over a fair few over a long time - 22 years; so dont hold you breath waiting would be my advice.

[Betty Windsor]

[Epykat]

[seanie]