New Portobello High School - PPAG Judicial Review

[Mark Cameron]

Have any of the traders said who is applying the pressure. Or are they afraid to speak out. We need to somehow show them the community would be right behind them if they support this appeal being dropped.

[seashell]

I agree. There must be a lot of people out there who originally gave their support to PPAG, for whatever reason, who must regret that decision now. PPAG's reputation is at absolute rock-bottom and some of their recent actions are just beyond the pale. The truth about the posters needs to come out and we need statements from the traders concerned. Similarly, there is no way that Ros Sutherland should get away with the email she circulated to CC members and others. I've been too busy the last couple of days to give it much thought but I'm not backing down until she retracts it and issues me with an apology.

Any chance you can give us details of the email, Bob?

[Bob Jefferson]

Well I'm in Porty tomorrow after about 11. Think you are bringing PoP some posters, let's meet up and get the skinny on what's been going on.

Working tomorrow but I'll be in touch to arrange something.

[Bob Jefferson]

Have any of the traders said who is applying the pressure. Or are they afraid to speak out. We need to somehow show them the community would be right behind them if they support this appeal being dropped.

Yes, we know who is responsible and I'm sure Porty will obtain the evidence we need tomorrow.

[Bob Jefferson]

Any chance you can give us details of the email, Bob?

Yes, it has already appeared on the Facebook page but I appreciate that not everyone may have seen it. I believe it was posted on Saturday 7 April and went out to all CC members (except Sean I think) along with our local Councillors, Sheila Gimour, Marilyne MacLaren and Kenny MacAskill.

Text as follows:

Just to be sure we are all aware of feelings that are currently running very high in the community we represent, I thought you might interested to know that people are saying that the 'New Portobello High School' Facebook page is advising supporters to boycott traders who do not have one of their posters in the window.
Also the Labour party were out canvassing on the High st yesterday, and, according to one trader, they were telling folk that if they don't accept the school on the park they will get flats instead.
Nice tactics

Ros Sutherland
Sent using BlackBerry® from Orange

Anyone who is a member of our Facebook Page will know that this is completely untrue. Both Ros and Diana Cairns have been challenged to produce evidence of the allegation and of course have been unable to do so because none exists. Ros has been asked to retract the allegation and to issue me with an apology. She has failed to do either of these things.

[Bob Jefferson]

What gets Ros off the hook of course, is the phrase "people are saying that". In other words, she would argue that she isn't making a direct allegation, she is simply reporting what other people are saying in the same way that I might say to someone: "People are saying that you murdered your wife."

On the other hand, you might take the view that she is deliberately spreading a damaging rumour that has no basis whatsoever in reality.

So why has she done this? In a fit of pique apparently because Nick Stroud, the joint secretary of the CC had the temerity to circulate the link to our online petition.

That's what people are saying anyway.

[wangi]

Here's a map of the Portobello High School catchment area along with the 2009 Open Space Audit data. Keep it in mind when you read PPAG's claim of "25% of Portobello's parkland".



Click for larger size. New Portobello High is going on an area within PF2; along with new all-weather playing fields.

Map from City of Edinburgh Council Atlas.

L/

[Bob Jefferson]

On the subject of the online petition, I don't think a single member of the Community Council has signed it apart from the aforementioned Sean, Maria, Tom, Nick and Lawrence. Five out of around 30. And these are the people who are supposed to represent the community. This is a crisis. This is no time for sitting on the fence or abstaining. These people have a responsibility. You are either for us or against us. And if you don't have the courage to make a decision, get out and make room for someone who can and will.

[Porty]

perhaps the EM should begin with an informal show of hands by pcc members to indicate who thinks PPAG should drop their appeal. We can then move onto challenging those who put pressure on traders.

[Bob Jefferson]

Statement by PPAG in response to our press release:

The issues involved in the appropriation of common good land are complex and what Andy Wightman is saying is not consistent with advice from elsewhere. In particular he fails to distinguish between common good land where there is a right to alienate, and common good land where there is no right to alienate. Both Andrew Ferguson, a very experienced local authority solicitor who specialises in this area and Professor Robert Rennie, also a specialist in this area, have expressed views with which PPAG's senior counsel, Roy Martin QC, agrees. These views do not support those expressed by Mr Wightman.

[wangi]

Results so far on a mini-poll on Talk Porty's Facebook page: http://www.facebook.com/questions/323610731035842/

• Get the school built on Portobello Park now; PPAG should drop the appeal: 161
  Let PPAG have their appeal: 14

To update on that poll - it now stands at:

• "Do you support a new Portobello High School on Portobello Park? The planning permission has been granted; PPAG's judicial review was refused on delay & merit. But PPAG are appealing that decision - risking many years of delay plus funding to other schools in Edinburgh"
  
  263 votes
  
  Get the school built on Portobello Park now; PPAG should drop the appeal: 243 (92%)
  Let PPAG have their appeal: 19 (7%)

[wangi]

Statement by PPAG in response to our press release:

The issues involved in the appropriation of common good land are complex and what Andy Wightman is saying is not consistent with advice from elsewhere. In particular he fails to distinguish between common good land where there is a right to alienate, and common good land where there is no right to alienate. Both Andrew Ferguson, a very experienced local authority solicitor who specialises in this area and Professor Robert Rennie, also a specialist in this area, have expressed views with which PPAG's senior counsel, Roy Martin QC, agrees. These views do not support those expressed by Mr Wightman.

Which goes right back to the final part of Lady Dorrian's judgement, namely:

Merits
[40] Strictly speaking, it is not necessary for me to deal with this, given the view I have reached as to the preliminary plea. However, it is right in the circumstances that I should express my view on the matter. I have reached the conclusion that the local authority does have power to appropriate inalienable common good land. Section 73 of the 1973 Act gives a local authority the widest powers to appropriate for the purpose of any function land vested in them for the purpose of any other function. The only restriction on appropriation is that a local authority may not appropriate land held for allotments without the consent of the Secretary of State. Section 24 of the 1959 Act requires a local authority to give public notification of any proposed appropriation and to consider objections made as a result but does not restrict the general power of appropriation. An equally wide general power of disposal is given under section 74, subject to a requirement to obtain the best price. Section 75 of the 1973 Act does two things. By subsection (1) it makes it clear that the provisions regarding appropriation or disposal of land apply to common good land where there is no question arising as to the right to alienate. Where such a question arises, under subsection (2) the power of disposal is limited, in that a local authority may only dispose of such land with the authority of, and subject to any conditions imposed by, the court. The power to appropriate such land remains unfettered.

[41] Such an interpretation is entirely consistent with both the case of North Lanarkshire Council, petitioners and that of South Lanarkshire Council, petitioners. I accept, of course, that those cases were concerned with disposal and the question of whether section 75(2) applied. However, the effect of the decision that neither of those cases involved a "disposal" was that they inevitably involved an "appropriation" of inalienable common good land. It could be nothing else, as counsel for the petitioners recognised. The decisions were based not on a conclusion that the land was alienable but that no disposal was required. The underlying assumption must have been that the council could appropriate the land in question. I cannot accept that either Lord Drummond Young or the Inner House (the Lord President, Lord Eassie and Lady Smith) would not have appreciated the consequence of their decision in the context of the legislation which they were construing.

[42] The cases to which I was referred fundamentally related to questions of disposal; or at least to whether the property had the character if inalienability and hence could be disposed of. Cases in the former category would include Crawford; Waddell and East Lothian District Council. Cases in the latter category would include Sanderson v Lees: "The question is whether there can be by usage such a dedication of property...as will exclude that property from being sold by the magistrates, or attached for the debts of the burgh", per Lord Deas, pp 31/32; Grahame v Magistrates of Kirkcaldy: "I find it impossible to hold that the magistrates as town council could sell to the magistrates as police commissioners property which they could not sell to anyone else"; Cockenzie; Magistrates of Kirkcaldy v Marks & Spencer; Magistrates of Kirkcaldy v Burntisland; and Wilson. The only case which dealt with what might reasonably be considered "appropriation" rather than "disposal" was Paterson. Even there, a primary concern was to make it clear that the council's powers did not extend to alienating any part of the solum. "Encroachment" was allowed, at least to the extent that it did not interfere with immemorial usage.

[43] Despite the observations in these cases, it seems, from the report of the Local Government and Public Health (Scotland) Committee of 1943, that there was some uncertainty as to the position regarding disposal of inalienable common good property. As I have noted, the majority of the cases to which I was referred suggest that it was impossible at common law to dispose of inalienable common good property, other perhaps than municipal buildings which were redundant or had been replaced. However, a degree of "encroachment" or appropriation appears to have been possible, certainly where consistent with historic usage. The effect of legislation has been to render possible that which was impossible, or at least highly doubtful, namely the disposal of the inalienable, and to impose no limit on the disposal which can be authorised by the court. Removing a more restricted limitation, namely that appropriation was only possible with continued usage, would not be inconsistent with that approach. Had I been with the petitioners on the issue of mora, I would nevertheless have refused the petition on the merits.

[44] I notice that in both the Lanarkshire cases the areas under consideration involved appropriation of only part of the land in question. The same position arises in the present case. Although the area available for dog-walking will be more limited then hitherto, the opportunities for recreation remain substantial, and in some ways will be increased. This factor does not seem to have featured as part of the reasoning in either of the Lanarkshire cases, nor does it do so in the present case. I can see that circumstances might arise where a council sought to appropriate the whole of a park in circumstances in which no aspect of its original use for the purposes of recreation remained. It might be argued, as counsel for the petitioner suggested, that, consistent with the "destruction" cases such as Crawford and Waddell, this amounted to a "disposal", but the point was not explored before me in detail. Such an interpretation might not accord either with the wide terms of the statute or with the notion of "disposal" discussed in North Lanarkshire Council which suggests that "disposal" requires an act whereby the local community were deprived of the land in question, but that the use of parkland for construction of a school and playing fields did not have such an effect. The partial nature of the appropriation was not highlighted.

[45] I need not deal with the petitioners' esto argument which was rightly departed from as untenable. Nor need I deal with the respondents' esto case. I would not in any event have done so. It is clear that the respondents did not proceed under the 2003 Act and I would not have ventured into discussion of an issue which was, at this stage, of academic interest rather than the focus of a dispute.

[seanie]

In particular he fails to distinguish between common good land where there is a right to alienate, and common good land where there is no right to alienate.

Words fail me.

Almost..

This has to be the most jaw droopingly dumb things they've said so far.

If it was alienable Common Good land then we wouldn't be having this discussion. Because if it was dlienable Common Good then, under the provisions of the 1973 Local Government (Scotland) Act, local authorities can pretty much do what they want.

The idea Andy Wightman is overlooking that point is stupid beyond belief.

[seashell]

Let's not forget that Professor Robert Rennie (who is generally regarded as a conveyancing expert, not an expert on common good lands) was paid by PPAG for his opinion. Which Lady Dorrian rejected.

[seanie]

Let's not forget that Professor Robert Rennie (who is generally regarded as a conveyancing expert, not an expert on common good lands) was paid by PPAG for his opinion. Which Lady Dorrian rejected.

No, there's a bit of confusion. As far as I know he's not provided any opinion on this case, just the Bignold Park one.

[Chas]

In particular he fails to distinguish between common good land where there is a right to alienate, and common good land where there is no right to alienate.

If it was alienable Common Good land then we wouldn't be having this discussion. Because if it was dlienable Common Good then, under the provisions of the 1973 Local Government (Scotland) Act, local authorities can pretty much do what they want.

Good point well made. Yet another example of PPAG spouting a load of inconsistent tosh.

[Makaveli]

http://www.scotsman.com/edinburgh-eveni ... -1-2225612

[wangi]

The appeal is to be heard on the 23 and 24 May, the earliest available dates. Grounds of appeal have to be lodged within 7 days with answers within a further 7 days. The appeal will cover both the delay issue and the merits of the case.

[tufty]

Does this mean they have revealed their grounds for appeal already and it merits a hearing, or will they reveal their grounds on the 23rd May? sorry for not understanding this issue.

[Snow White]

I see that SPP Facebook page are claiming that they have pushed for this 'early' appeal hearing. Any truth in this or just more misinformation?

[wangi]

Snow White - our source at the hearing today says "It is only fair to record that counsel for PPAG did not oppose the request for an urgent hearing and was entirely helpful in finding a date for it".

Tufty - I think that's 7 days from today.

[Porty]

Council were solely responsible for for calling for early appeal hearing. Super quick action as its been less than Two weeks since notice of appeal. PPAG are dumb for publishing it was down to them. The power knows its untrue.

[Pal of Porty]

Council were solely responsible for for calling for early appeal hearing. Super quick action as its been less than Two weeks since notice of appeal. PPAG are dumb for publishing it was down to them. The power knows its untrue.

MIght be dumb but totally consistent with the way PPAG have run their entire campaign. They seem to forget that they already have a judgement against them for delay and even after that decision, they did not appeal until the very last minute to cause maximum delay and disruption. Previous behaviour would suggest their grounds for appeal would not have been submitted until the last minute of the 14 day time frame but at least now the Council have forced their hand.

What gets me is how their supporters seem to believe the misrepresentations and lies that have underpinned their campaign.

[Pal of Porty]

Just read the report on the BBC web site and despite the track record of PPAG, I am incredulous that they are issuing the following claim on national media and not just on their propagandist Facebook page:

"PPAG has claimed it requested the early appeal to show it was not "stalling"

They are obviously upset at being viewed by the majority of the community as the group that are maliciously delaying the school project and are now trying to appear like they care. Totally devoid of anything substantive in their entire campaign they again have to resort to misrepresentations.

Total liars until the bitter end.

[Bob Jefferson]

And on a more positive note, Ben McLeish has just become the sixth member of Portobello Community Council to sign the petition. Thanks Ben!

[Mark Cameron]

So whats the current scores on the doors in terms of PCC that have and haven't signed? Who has and who's not?

[Bob Jefferson]

Those who have signed are as follows:

Sean Watters
Maria Devoy
Tom Ballantine
Nick Stroud
Lawrence Marshall
Ben McLeish

And although the link to the petition has been circulated to all CC members, none of the others have signed to date. One member has told me privately that he supports the school on the park but won't sign the petition. The others - who knows?

[Betty Windsor]

I need 3 large posters to display in my shop can anyone supply me? Any PPAG member wishing to come in and reprimand me can feel free.

I think I may be able to help you there. Thank you for your support and thanks to all the other traders who are resisting the pressure from PPAG supporters to remove our posters. I'm sure we will continue to support ALL of our local shopkeepers in these difficult trading conditions.

What scurrilous rumours are you peddling now?
This is bo**ocks and you know it. I turn my back for 5 minutes!

You might just have to face up to the uncomfortable truth that many people are not as enthusiastic about building on open green space as you are. I think you are using your own standards to judge people (again). Many of us remember you going round the shops asking shopkeepers to take down the save the park posters.

[Betty Windsor]

Have any of the traders said who is applying the pressure. Or are they afraid to speak out. We need to somehow show them the community would be right behind them if they support this appeal being dropped.

Mcdryburn I think you have been duped. You really must speak to the shopkeepers directly and ask them themselves what happened and don't just take Bob/Seanie/Porty's word for it.

If you really believe that the vast majority of people in the community are for the new school being built on the park, why would shopkeepers be intimidated by 6 people? It doesn't stack up.

[Betty Windsor]

Those who have signed are as follows:

Sean Watters
Maria Devoy
Tom Ballantine
Nick Stroud
Lawrence Marshall
Ben McLeish

And although the link to the petition has been circulated to all CC members, none of the others have signed to date. One member has told me privately that he supports the school on the park but won't sign the petition. The others - who knows?

Really Bob- are you seriously suggesting someone is so intimidated by PPAG that they are scared to sign the petition. Maybe they're scared of you and that was just their way of getting rid of you.
The thing with the community council is that it represents the wider community and not just parents which is why you might have an issue with everyone signing.
Your attempts to discredit and undermine PPAG at every opportunity are absolutely reprehensible. Anyone who genuinely cared about his community (whole community) would not seek to split it in this cynical way. The hysteria you have managed to create with your latest campaign helps no-one.
The most interesting thing in this whole campaign (from my point of view) is that every single accusation you have levelled at PPAG you could equally (or more) be applied to yourselves.

[Betty Windsor]

Just read the report on the BBC web site and despite the track record of PPAG, I am incredulous that they are issuing the following claim on national media and not just on their propagandist Facebook page:

"PPAG has claimed it requested the early appeal to show it was not "stalling"

They are obviously upset at being viewed by the majority of the community as the group that are maliciously delaying the school project and are now trying to appear like they care. Totally devoid of anything substantive in their entire campaign they again have to resort to misrepresentations.

Total liars until the bitter end.

How would you know this PoP, when was the last time you had a civil word to say to them, or any word for that matter. I think calling people liars is out of order and unfair. They are merely stating what they believe will happen. How can that be lies? If the council were to give some guarantees about the land use some of us might not be so concerned. The fact is they wont.
So what if we're right? What if the courts eventually rule that the council should not build on the land? Or what if the school gets built on the park and in a few years time they build houses (or more likely St Johns's in my opinion) Will you apologise to PPAG for calling them liars?
Again I think you are getting mixed up between the majority of parents and the majority of the community at large.

[Betty Windsor]

I'm at a loss as to understand why a special meeting of the community council should be called. What's it got to do with them? Or is this just another tactic to try and discredit PPAG?
You are clearly people who have no real concept of community outside your own clique. If it were not so you would have a bit more regard for people who disagreed with you.
Can you not see the hypocrisy of this? You are seeking to censure a group for excersising their democratic right. In any other scenario most of the same people that are attacking PPAG, would be on the side of protecting open green space and defending democratic rights.

You're behaving like a bunch of fascists.

[Betty Windsor]

The dirty tricks would soon be forgotten if the hardcore would concede gracefully. Perhaps I am naive but the bright and decent people on the PPAG periphery are bound to be swayed by the opinion of Andy Wightman and others. Along with the strenght of feeling in the community.
The core of the group are deliberately spinning the judgment so as it appears different to what it actually is.

Enough is enough folks, let the kids have their School, please pretty please!! Come back into the fold.

Dirty tricks indeed. Did you get a red face when you wrote that?

[seanie]

Honesty, integrity, even simple decency...

....I may something to say about that soon.

[Makaveli]

Fascists indeed!!!

Do you resort to name calling in real life when you lose a debate Betty?

And you know full well it is not about defending green space as PPAG have offered up numerous other green spaces for the school to be built on so please do not repeat that claim as it is quite frankly embarrassing!!!