New Portobello High School - PPAG Judicial Review

[seanie]

Letters: Help save precious green spaces before it is too late

The Court of Session last week ruled that Edinburgh City Council could proceed with building the new Portobello High School on Portobello Park.

The overriding judgement was that Portobello Park Action Group (PPAG) was too late in taking this to court – a surprising decision to many as the council has yet to appropriate the land, an essential process when the council wishes to build on common good land.

The case for protecting our green space has never been about stopping the building of a much-needed new school. It has always been about saving valuable parkland.

This result is a hollow victory for anyone who thinks they have something to celebrate. In this instance, the budget is there for a new school and it could have been successfully built on its existing site, as many other schools have been.

The only winner in this case is the city council, which stands to make a substantial sum of money from selling the existing school site, which itself was playing fields before the current school was built.

This case has become a much wider issue about whether the city council can build what it wants where it wants, irrespective of public opinion. This case sets a dangerous precedent.

PPAG is considering a legal appeal and I would urge anyone in Edinburgh who cares about green space to support the group. If you wait until your local park is affected it will be too late.

J Peters, Duddingston Crescent, Edinburgh

[Porty]

I thought Betty Windsor was Gillian Dunn.

[Epykat]

I thought Betty Windsor was Gillian Dunn.

You seriously think there's only one person with that opinion?

[seanie]

Which opinion in particular?

[Porty]

Things are getting desperate over at Porty Greenkeepers. Desperate but still woefully inaccurate.

I recognise the prose. How can someone sit in court for three whole days and still fail to grasp the focus of their own legal argument?

As you know, the Court of Session unfortunately ruled that the City of Edinburgh Council did not have to seek permission to build on Portobello Park. Lady Dorrian ruled that Portobello Park Action Group was too late in bringing the action, even though the Council has not yet taken the decision to appropriate the park. Our legal argument focused on the fact that there is no provision in the law for alienating inalienable (a fact acknowledged by the Council) common good land. We are taking advice from our legal team before deciding whether to appeal the decision or not and we have until 27 March to decide.

Aside from the loss of a substantial area of public open space (25% of Portobello's parkland), the consequences of this decision are disastrous, in that it sets a precedent and gives carte blanche to councils to take and use common good assets in any way they wish without any checks and balances being applied. If this judgement is allowed to stand, no-one will be able to challenge decisions to appropriate or alienate common good land in law. This means that councils, especially in these cash-strapped times, could sell off, or appropriate for other uses, common good assets, riding roughshod over local opinion, and get away with it. This is no longer an issue for Portobello but for the whole of Scotland.

We have been advised by our legal team that there may be grounds for an appeal but the big barrier to this would be the the expenses of this going forward. It is a potentially huge financial burden for a community group to bear. Friends of the Earth Scotland is running a campaign on this very issue, i.e. Access to Justice and the increasing difficulties faced by communities and groups with limited means.

If we do not appeal, a legal precedent will have been set that enables councils all over Scotland to play fast and loose with our common good assets. Which green space will be next?

It you would like to support our cause in any way, please

[seanie]

It is a little astonishing.

[seanie]

It you would like to support our cause in any way, please Contact Us

Dear PPAG

URGENT AND CONFIDENTIAL PROPOSAL

I am The Deputy Director of the Nigerian Department of Administration of Administrative Affairs. I have seen on your excellent and most attractive website your appeal for support. I am in a position to make a proposal that will be mutually benefit to us both. I currently have, for entirely legitimate and not in any way questionable reasons, access to a sum of $20,000,000 (USD) and am in need of a honest and trustworthy third party in the UK; with a bank account. If you would be willing to manage said funds upon our behalf, in return for a small administrative fee (10%), then the Nigerian Department of Administration of Administrative Affairs would be accessing new investment opportunities whilst also benefiting your most noble and wondrous cause.

Rest assured that this transaction involves NO RISK. As you can see, NO RISK is in a large red font and in capitals, so there cannot be any doubt that there is indeed NO RISK.

Simply send me your bank details and I can arrange the transfer of monies forthwith.

Yours in anticipation,

The Deputy Director of the Nigerian Department of Administration of Administrative Affairs

[Porty]

I don't believe the Deputy Director - were he looking for an "honest and trustworthy third party" why on earth would he be writing to PPAG?

[Porty]

Hot off the press : PPAG are rumoured to be planning a "recruitment " event the second weekend in April in order to garner support for an appeal.

[storky]

Surely it would make more sense for PPAG to have a fund raising event to pay for the Council's legal expenses that have been incurred so far? I certainly hope that our Councillors are going to pursue these costs.

I have challenged my local Councillors to obtain legal costs from PPAG. I would urge others to do likewise.

[seanie]

The possibilty of the Council pursuing them for costs may not have occured to PPAG yet, although I understand that the Council generally don't.

[seanie]

Anyway, for the sake of completeness.

As you know, the Court of Session unfortunately ruled that the City of Edinburgh Council did not have to seek permission to build on Portobello Park. Lady Dorrian ruled that Portobello Park Action Group was too late in bringing the action, even though the Council has not yet taken the decision to appropriate the park.

No, the decision was taken some time ago; there was the site selection back in 2006 subsequently approved by the Scottish Government, there was the 2008 decision to proceed with the project on the selected site without recourse to the courts, and then confirmation of that in March 2010. The Council have spent a couple of million on fees to develop the design, take it through planning and out to tender. They've even signed off £200,000 to the prospective contractor for preparatory works. Do you really think they haven't decided to appropriate the park for the new school? That decision was taken years ago.

Our legal argument focused on the fact that there is no provision in the law for alienating inalienable (a fact acknowledged by the Council) common good land.

No, that wasn’t your legal argument. Your argument was that there was no provision in law for appropriating inalienable land. Alienation and appropriation are not one and the same. In any event there is indeed provision in the law for alienating inalienable land, as Section 74 of the 1973 Local Government provides a mechanism for disposing of such land and disposal is the most extreme form of alienation.

We are taking advice from our legal team before deciding whether to appeal the decision or not and we have until 27 March to decide.

This would be the same legal team that advised on when to bring your case?

Aside from the loss of a substantial area of public open space (25% of Portobello's parkland), the consequences of this decision are disastrous, in that it sets a precedent and gives carte blanche to councils to take and use common good assets in any way they wish without any checks and balances being applied.

No it doesn’t set a precedent, it follows precedent. How many times have you been directed to the North & South Lanarkshire cases? Nor does it give carte blanche to how such assets are used; there are regulatory requirements Councils are bound to follow, procedures, processes and other legislative frameworks such as Planning.

And the idea that this ruling marks a significant change shows a lack of understanding of the history of the Common Good. Whilst there always have been, and continue to be, special provisions as to how Common Good assets are dealt with, Local Authorities have always had very wide discretion in how they administer such property. Going back to the 19th century. Lord Kyllachy in the Court of Session observed;

"The Common Good is corporate property and falls as such to be administered by the Town Council as the Executive of the Corporation and applied by them for the benefit of the community in such manner as, using a reasonable judgement, they think proper.”

What limitations there were, apart from outright disposal, really rested on those two key considerations; that the Common Good should be used to the benefit of the community and that reasonable judgement should be exercised to that end. The Courts have intervened on occasion, largely on matters of disposal, but they’ve historically been reluctant to interfere unless an action was patently unreasonable or unlawful. So this decision is no departure from the legal conventions, and doesn't represent any great change.

If this judgement is allowed to stand, no-one will be able to challenge decisions to appropriate or alienate common good land in law. This means that councils, especially in these cash-strapped times, could sell off, or appropriate for other uses, common good assets, riding roughshod over local opinion, and get away with it.

It doesn’t change councils’ ability to sell Common Good assets in any way shape or form. This ruling relates to appropriation, whereas selling would amount to disposal, and the rules regarding that remain the same.

This is no longer an issue for Portobello but for the whole of Scotland.

For the reasons above, it's difficult to see why it should be.

We have been advised by our legal team that there may be grounds for an appeal but the big barrier to this would be the the expenses of this going forward.

This would be the same legal team that advised you had a good case first time round?

It is a potentially huge financial burden for a community group to bear. Friends of the Earth Scotland is running a campaign on this very issue, i.e. Access to Justice and the increasing difficulties faced by communities and groups with limited means.

You first announced your intention to take legal action over 6 years ago. It’s not like you haven’t had plenty of time to raise funds, just not enough support within the community. Your repeated insistence that your represent the 'SIGNIFICANT MAJORITY' isn't borne out by reality.

If we do not appeal, a legal precedent will have been set that enables councils all over Scotland to play fast and loose with our common good assets. Which green space will be next?

Most green spaces aren’t Common Good land so most greens paces aren’t affected by this decision, and the principal protection for green spaces is and remains the relevant planning policies. There is not, and never has been, a absolute bar on developing green space. But the current planning framework does set a fairly high bar in terms of the procedures and criteria that need to be satisfied. In this instance the proposal failed to comply with the Development Plan on only one point; criterion b) of Policy OS1. In all other respects it was consistent with the planning regulations and such a minor breach was outweighed by the benefits that were themselves material considerations. A fact reflected in the Scottish Government declining to call in the application for further scrutiny.

[Chas]

[Porty]

Bravo Seanie!

i believe there is one thing on which both pro-school and PPAG can agree. We are all glad you are on our side.

[Epykat]

Bravo Seanie!

i believe there is one thing on which both pro-school and PPAG can agree. We are all glad you are on our side.

[seanie]

To be fair, the Portobello Park Action Group has achieved something. They were the ones who raised the issue of Common Good status in the first place, without which that status of the land wouldn't have been established. Whilst PPAG may not recognise it at the moment, that is an added protection for the land; it makes it more difficult to sell, more difficult to lease, and difficult to use for any function that isn't of benefit to the community in general. So there is at least one positive to come out of their campaign.

[Doris]

Does anyone know if PPAG intend to appeal the decision? Thought the deadline was today......

[seanie]

Not heard anything. May not know for sure till Thursday.

[joeshmoe]

Not heard anything. May not know for sure till Thursday.

Whats the timeline now then, when can/will CEC actually get on and start building?

21c the last 2 days and seen about 2 people in this so called 'green space'

[seanie]

If there us no challenge (and given PPAG's track record they'll leave anything till the last minute) then the Council will most likely approve the contract at their April meeting. They did however approve £200,000 towards initial works to speed up the process if successful in court, so they could start work prior to then.

[Porty]

I think PPAG are still planning the "recruitment/funding" event in April, pinning their hopes on legal precedent.

[storky]

One local councillor has informed that he is consulting with the councillors solicitors about seeking legal costs from PPAG.

I also discussed this matter with Kenny Macaskill as this is within his constituency, plus he is well qualified to comment on legal matters. Kenny's opinion was 'It’s obviously a matter for the council but the standard rule in court proceedings is that expenses follow success. I cannot see any reason why the council should desist from that.'

[Porty]

If they have to stump up costs it will be a real kick in the nuts. Let nut kicking commence.......

[joeshmoe]

If there us no challenge (and given PPAG's track record they'll leave anything till the last minute) then the Council will most likely approve the contract at their April meeting. They did however approve £200,000 towards initial works to speed up the process if successful in court, so they could start work prior to then.

Can they still challenge and then effectively pull out, just to delay the process even further? Or do they have to commit funds to the process?

I for one hope they get stung for the funds as not only is it legally correct they do so it is also my council tax that has gone to pay for their charade

[Betty Windsor]

We can expect a press release tomorrow, I'm told.

[Bob Jefferson]

A press release from PPAG?

[Betty Windsor]

I believe so.

[seanie]

Go on, give us a hint...

[Makaveli]

I know alot of local people that are writing to their local councillor asking that costs be chased in this case.

[joeshmoe]

What's our councillors email address, I'd like to write to them to ask for costs to be claimed as well

[Porty]

We can expect a press release tomorrow, I'm told.

Will it include some drawings? Those are my faves.

[storky]

Joeshmoe, these are the email addresses of the Councillors (that I could find) in the two local wards. I would also cc Kenny Macaskill, as he has expressed an interest.

michael.bridgman@edinburgh.gov.uk
maureen.child@edinburgh.gov.uk
stephen.hawkins@edinburgh.gov.uk
ewan.aitken@edinburgh.gov.uk
gary.peacock@edinburgh.gov.uk
stefan.tymkewycz@edinburgh.gov.uk
Kenny.MacAskill.msp@scottish.parliament.uk

[storky]

Would I be correct in assuming the Councils legal expenses incurred thus far could be obtained under the freedom of information act?

[wangi]

I know alot of local people that are writing to their local councillor asking that costs be chased in this case.

You know, I think normal precedent should be followed. Sure I disagree with much of what PPAG say, they were late in bringing the case... But it is right that they should have the ability to do so.

Of course given such a clear ruling that should be the end of the matter. Any further legal costs absolutely must be covered by them, not the Council / tax payer.

L/

[Makaveli]

Wangi you are correct that is probably the fairest way of dealing with it.