New Portobello High School - PPAG Judicial Review

[Lashylass]

They certainly did.

[seanie]

Arguments concluded so now in the hands of the judge.

[Jamesie]

As to QCs, I have to say the Council's one is pretty impressive too.

Who is the Council's QC?

Sarah Wolffe?

That would be about right - not that many female silks practice in this area.

[Jamesie]

Question. If Lady Dorrian finds in favour of the Council, do PPAG have any further recourse to appeal? Is there a higher court or will this finally be an end to it?

I believe any decision from the Court of Session can be appealed in the Supreme Court so my guess would be that they could appeal. However, I suspect any appeal would have to be on the basis of a procedural issue with the way the original case was handled, rather than simply that they disagreed with Her Ladyship's decision.

There's another layer of appeal before the Supreme Court - to what is known as the "Inner House" of the Court of Session (the Petition has been heard in the "Outer House" thusfar). The Inner House is comprised of three judges and majority rules.

[Porty]

Presumably the judge could refer it to the inner house directly?

[Jamesie]

Presumably the judge could refer it to the inner house directly?

You mean the judge making the appeal rather than the parties? That wouldn't be possible in terms of the Court of Session Rules - it's up to one of the parties to kickstart the appeal process.

[Porty]

Sorry- I meant if she didnt feel entirely certain making a decision, could she "refer" it to the higher court?

[Porty]

I dont believe theres much chance of that outcome. Im just curious.

[Porty]

Roy Martin QC made the point that had it been 1994, the Council would have had to dispose of the common good land to Lothian Region, who were responsible for education at that time. I was really impressed with him but unsure where he was going with that one?

[Scoop]

Portobello Golf Club played at a course on the other side of the tracks and according to the PPAG historian that land was confiscated by the council in the 1880's so that they could build a freightliner terminal. Bonkers I know.

"Confiscate". Is that the same as "appropriate". Bonkers, I know. You don't even have to make it up.

[Porty]

Freightliners weren't "invented" til the 1950's or 60's. So the idea the Council appropriated or confiscated land in order to build a Freightliners depot some 70 years earlier is bonkers. There was no appropriation or confiscation.

[seanie]

Confiscate generally means taking somebody elses property, whereas appropriation is a specific legal term for changing the use of something. The appropriation of part of Portobello Park for a school would involve an appropriation, but no change in ownership so no, they don't mean the same thing.

[Betty Windsor]

Roy Martin QC made the point that had it been 1994, the Council would have had to dispose of the common good land to Lothian Region, who were responsible for education at that time. I was really impressed with him but unsure where he was going with that one?

I took that to mean that checks and balances were naturally in place when the responsibilities were split between the Regional councils and the city councils.
I thought he was arguing for seeking clarity. If the law is unclear on a point as important as this, it effectively gives carte blanche to any local authority who wants to landgrab inalienable common good land. This should concern us all.

[Betty Windsor]

I'm not sure if I understand why PHS headmistress felt she had to attend proceedings. You would think she would have enough to do running that big school. Was this really an effective use of her time?

[Makaveli]

I would have thought that was the best place for her to be.

[Porty]

Roy Martin QC made the point that had it been 1994, the Council would have had to dispose of the common good land to Lothian Region, who were responsible for education at that time. I was really impressed with him but unsure where he was going with that one?

I took that to mean that checks and balances were naturally in place when the responsibilities were split between the Regional councils and the city councils. ll.

So we can rule that out.

You must have been pleased with Roy Martin's (PPAG's QC) presentation, Betty.

[Epykat]

So Seanie..........why the delay? Could you now explain please.

[seanie]

Explain what exactly?

[Epykat]

Explain what exactly?

Explain why there was a delay in this going to Court. Was it purely because PPAG wanted to put a spanner in the works at the last minute?

[seanie]

Well you'd have to ask PPAG but I think so, yes. The judge asked specifically what decision or act was being challenged and Roy Martin responded that they weren't challenging a specific decision or act, but rather were seeking a declarator on a point a legal principle; that the Council cannot, under any circumstances, appropriate inalienable Common Good land.

Since they're not challenging an act or decision they didn't have to wait fir a particular act or decision. They could've brought a challenge as soon as it was clear that the Council intended to do just that. That's certainly no later than December 2008.

That's not to say they don't think they have a valid case, simply that they chose to bring that case at a time that would cause maximum disruption and delay.

[Epykat]

Thanks for that. I was pretty sure that's what you would have heard.

[seanie]

Thanks for that. I was pretty sure that's what you would have heard.

I was largely expressing what I thought, not what I'd heard. You asked for my opinion.

[Epykat]

Thanks for that. I was pretty sure that's what you would have heard.

I was largely expressing what I thought, not what I'd heard. You asked for my opinion.

No I didn't. I asked for your explanation to your oft asked question.

[seanie]

So you asked for my explanation for the delay, but you were in no way asking for my opinion on why the delay had happened?

How does that work?

[Epykat]

So you asked for my explanation for the delay, but you were in no way asking for my opinion on why the delay had happened?

How does that work?

I was just interested to see if what you heard as Roy Martin's explanation of why there was a delay and what I heard as Roy Martin's explanation of why there was a delay were the same. I'm not really interested in your opinion on why there was a delay because that's not really relevant to the case.

[seanie]

But as you just confirmed;

I asked for your explanation to your oft asked question.

You asked me for my explanation, not Roy Martin's or anyone elses. It's a bit churlish to ask for my explanation, then get in a huff when I provide my explanation.

[Bob Jefferson]

So, out of interest, what was your interpretation Epykat of Roy Martin's explanation for the delay?

[rmolehusband]

Roy Martin QC made the point that had it been 1994, the Council would have had to dispose of the common good land to Lothian Region, who were responsible for education at that time. I was really impressed with him but unsure where he was going with that one?

It may be related to something seashell pointed out right back at the start of this epic thread...

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.

If the land were given to the region for a school then it would be disposal which is covered by the law, but since the counicl will build/own the school it is appropriation which he argues is not covered.

Taking this to it's ridiculous, but logical, conclusion, would that mean that if the council can't appropriate the land to build a school then neither can they appropriate it for paths, a planted woodland, football pitches, benches, changing rooms, etc.? What is the default state of common good land and should it all be returned to that state?

[Porty]

Well you'd have to ask PPAG but I think so, yes. The judge asked specifically what decision or act was being challenged and Roy Martin responded that they weren't challenging a specific decision or act, but rather were seeking a declarator on a point a legal principle; that the Council cannot, under any circumstances, appropriate inalienable Common Good land.

When I heard this exchange, I was left wondering why Judicial Review was being used when a decision was not being challenged.

[Porty]

If the land were given to the region for a school then it would be disposal which is covered by the law, but since the counicl will build/own the school it is appropriation which he argues is not covered.

Taking this to it's ridiculous, but logical, conclusion, would that mean that if the council can't appropriate the land to build a school then neither can they appropriate it for paths, a planted woodland, football pitches, benches, changing rooms, etc.? What is the default state of common good land and should it all be returned to that state?

Yep, logical but absurd and Mr Martin seemed to admit as much.He's hoping the Judge will conclude that previous judgments simply overlooked appropriation, time and time again. Its a long-shot but not a no-hoper and he constructed a good case. Flowery and weak on legal principle but he put it together well.

[Porty]

The "Hungry Joe" impersonations during the Council's QC's speech were mystifying.

[Puerto bella]

The "Hungry Joe" impersonations during the Council's QC's speech were mystifying.

what does that mean?

[Porty]

Hungry Joe was a pilot based in Pianosa during WW2.

Where do you all go when asked a question? You seem to disappear for days on end.

[rmolehusband]

Hungry Joe was a pilot based in Pianosa during WW2.

I wondered if it was a Catch-22 reference, but unless they were screaming in their sleep I can't see a connection there. I assumed you simply meant sitting open mouthed, as a hungry person, named Joe or otherwise, might do.

[Porty]

When Hungry Joe wasn't required to fly perilous missions, he had screaming nightmares. He was at peace only when his life was most threatened. His state of mind was inverse to his predicament.

Our Counsel skillfully dissected the PPAG petition, throttling the life out of their case. Some PPAGERS seemed to find that a source of mirth, vacuous smiles and inane, silent laughter.