New Portobello High School - PPAG win legal appeal

[seanie]

It would be for the Council to do. Someone said the Bill for the National Galleries took about 6 months but that may be exceptional.

[regent]

I am assuming that there would be an objection to the bill and that this could draw the whole process out.

Right to object

3.1 Under Rule 9A.6.1, any person, body corporate or unincorporated association may lodge an objection to a Private Bill that would adversely affect their interests (see paragraph 2.26). This may include individuals, amenity bodies and others whose interests may be adversely affected by the proposal

[regent]

Suppose it just seems that there is going to be no quick fix and the contractor, I assume, will pull out at some point.

[seanie]

As I understand it a Private Bill would mean setting up a Committee to investigate the matter, and that would be the opportunity for opposing and supporting voices to be heard. Not sure it would drag things out that much, the arguments are well rehearsed and not particularly exhaustive. The project may have to be re-tendered, which would be a 6 month process at best, so that's not great. There may be other routes that are quicker than a Private Bill but I don't know how feasible they are.

[Sceptic]

The project is suspended, as it was the entire tranche of school rebuilds which was involved, not just Portobello. The contract included, if my memory serves me correct, no doubt I will be corrected if I am in error, Gillespie's and Boroughmuir.
That was the importance of the appeal being dropped before a certain deadline.

[seanie]

All the schools are being tendered separately, so there shouldn't be any impact on JGHS or BHS. The only other school directly effected is St John's.

[regent]

The poster produced reading Close the loophole. What loophole does this refer to?

[seanie]

Potentially two loopholes; the '73 allows for the disposal of inalienable Common Good land, but is silent on appropriation. It looks like a drafting omission.

Secondly the Court took such a narrow view of 'well being' as to render the 2003 Act pointless. There is the option of clarifying what parliament intended under the 2003 Act.

[Porty]

PPAG QC advised the inner house judges that the 2003 act empowered Councils to action almost anything to promote the well being of its citizens. He illustrated the powers by suggesting that should Edinburgh city council decide that relocating the city HQ to Hawaii was to the benefit of our citizens, the act enabled them to do so.

The judges clearly did not like this idea and I think all 3 demonstrably disapproved of this empowerment and this clearly influenced their judgment. Hugely so in my opinion.

They chose to override the thrust and intent of the Act , which is beyond their duty. The above mentioned loophole allowed them the opportunity.

[neilking]

[seanie]

The power to advance well being was constrained by explicit provisions. Hiring mercenaries to kill people is explicitly prohibited anyway, so as an analogy it's just silly. And when it cones to common law and common good there wasn't a single instance, of a single judge, in any case, ever articulating explicitly the inalienable could not be appropriated in any event. If that is a fundamental right, it's one that has been unexpressed over centuries of case law.

[Betty Windsor]

The clue is in the word "inaliable".

[seanie]

[seanie]

The report that goes to Council on the 25th will consider two key questions; what legal options are available to build the new school on Portobello Park and what alternative site options are available in the event that this does not, ultimately, prove to be possible.

Given the importance of replacing PHS, and inevitable delays and additional cost whatever is done, I think by far the best option is to pursue both.

The Council should seek to find a way to overcome the legal judgment, AND - consider an alternative site for the school.

[neilking]

[Porty]

Prior to the 2003 Act; Councils could alienate inalienable CG land. The Act was designed to broaden local govt powers to make it easier and less costly to promote well being. Lady P managed to enforce the act in a way that is completely at odds with the intention.

[seanie]

The 2003 Act was meant to be far reaching. Prior to that Local Authorities could only do that which they had been given express statutory authority to do. The intention of the act was radical in that it gave the Local Authorities the power to advance well being unless there was an explicit limiting provision in law. Hiring mercenaries to kill people would fall under an explicit limiting provision.

In Grahame v Magistrates of Kirkcaldy, the decision relied heavily on neglect, and there was no explicit articulation that inalienable land could never be appropriated, and it doesn't accord with other case law where the question of appropriation was considered on the basis of degree such as Paterson v Magistrates of St Andrews.

If it is indeed unlawful to appropriate inalienable common good land, it's remarkable that the principle has never been explicitly articulated, especially when it would have made a good many court hearings a great deal shorter. And since it has never been explicit, it's difficult to see how it could legitimately be interpreted as a limiting provision.

[Betty Windsor]

[seanie]

People living near the school on the park would still be living beside open green space.

The big thing?

With holes?

And little flags?

[seanie]

Anyway, leaving aside these distractions, the most important thing is to find a sensible way forward.

So the Council should seek to find a way to overcome the legal judgement, AND - consider an alternative site for the school.

[Betty Windsor]

[seanie]

[Betty Windsor]

Or they may decide to stop throwing good money after bad and admit defeat. Then we can all get on with looking for alternatives that do not involve stealing green space.

[seanie]

Well there do appear to be legal and legislative routes available, to pursue them doesn't involve huge sums compared to things such as decants, and if that can run in parallel with looking into alternatives then it's only sensible to do both.

[neilking]

[seanie]

The idea that changing the status from inalienable to alienable via transferring the status to alternative land, goes back to an odd interpretation of the '73 Act and possible conditions surrounding disposal. The case heard was agreed not to be a disposal of inalienable common good land, only on the legalities of an appropriation. And whilst you may not be interested in the 2003 Act, it was intended as a power of first resort. A power to advance well being only limited by explicit restrictions.

Where in Common Good law is the explicit restriction on appropriating Common Good land?

Why were the judges unaware of it in the North & South Lanarkshire cases?

Why had Lady Dorrian never heard of it?

[neilking]

seanie, before I say any more for now can I ask whether you believe the park to be common good or not?

[Porty]

It's a racing certainty the council will pursue in the manner Sean suggests. Will they challenge the CG status? That is the £25, 000 question. (In 1896 money)

[portygeoff]

[portygeoff]

[seanie]

[Betty Windsor]

[seanie]

The park is barely used by any children, and the new school with accessible all-weather pitches would be an improvement in amenity, and there would still be that big green thing with holes and little flags on.

[gillian]

Betty don't start all that again. The children of Magdalene and the Christians don't use the parks. You know that, we know that. You also know that the children of Magdalene and the Christians matter as much as any child. Which is why there is the fight to get them a new school. Your new attempt to try to introduce some sort of class, us and them situation is as patronising and offensive as the last attempt.

[Porty]

Once the accessible all weather pitches are in place, the usage figures for the park will increase, possibly by a factor of 10 or more on a weekly basis.

One only has to look to the Powerleague site to appreciate what all weather and floodlights can do for a site, in terms of usage.
The open air pool was open maybe 5 months a year and numbers were inextricably linked to weather conditions.
Now the site is open and busy 360+ days a year. The idea that floodlights and all weather pitches will somehow impair the general health of the community is bonkers. At present Portobello Park is in darkness from late afternoon, 5 months of the year. Which is how they prefer it up Park Avenue way.