New Portobello High School - PPAG win legal appeal

[Franck]

I'm sure it's not news to people on here, particularly as Andy Wightman (I think) has been helping out PFANS, but this makes interesting reading>
http://www.scottishcommons.org/docs/edi ... 060426.pdf

Did the decision take into account precedence of the council and it's haphazard use/sales of common good land?If it's good enough for Waverley and East Market Street, it's good enough for Porty park, no?

[wangi]

Folks - write to your elected representatives - tell them how you feel and what needs to be done. Some suggestions:

• michael.bridgman@edinburgh.gov.uk - Councillor Michael Bridgman, Portobello/Craigmillar ward
  maureen.child@edinburgh.gov.uk - Councillor Maureen Child, Portobello/Craigmillar ward
  kezia.dugdale.msp@scottish.parliament.uk - Kezia Dugdale MSP, Lothian region
  sheila.gilmore.mp@parliament.uk - Sheila Gilmore MP, Edinburgh East
  paul.godzik@edinburgh.gov.uk - Councillor Paul Godzik, Convener of Education, Children and Families Edinburgh Council
  kenny.macaskill.msp@scottish.parliament.uk - Kenny MacAskill MSP, Edinburgh Eastern
  michael.russell.msp@scottish.parliament.uk - Michael Russell MSP, Cabinet Secretary for Education and Lifelong Learning
  nicola.sturgeon.msp@scottish.parliament.uk - Nicola Sturgeon MSP, Deputy First Minister & Cabinet Secretary for Infrastructure, Investment and Cities

Have just sent my letter...

[Pal of Porty]

I think we have to find a way to get the school on the Park, whether by appeal or some of the other methods previously mentioned. An extensive feasability study concluded the Park was, although not ideal, clearly the best space available from over 20 options studied. At all costs a rebuild/refit on the current site has got to be avoided or we will end up with another '50 years worth' of children getting educated without any access to green space and outdoor sports facilities in a building that cannot possibly be suitable for 1400 kids plus staff.

[AndyB]

How many Porty parents have voiced a desire to have a joint Portobello/Castlebrae school in Craigmillar as reported here? Can't say I've heard any.

http://www.scotsman.com/edinburgh-eveni ... -1-2523528

I just read this and it has to be a joke. No one has ever mentioned a super school in Craigmillar before and its miles away from Portobello. How are the 1400 pupils meant to get there? Have people seen the number of kids heading up Brighton Place each morning? Are they now expected to walk to Craigmillar. There isn't the public transport for that number either. Whatever councillor is quoted as saying this should be booted up the you know what. It is not even a sensible option and should not even be considered. We need a school in our community not miles away so as to satisfy a few NIMBYs. We need the school and the facilities it will bring to the Portobello area.

[portygeoff]

I am looking to see what our MSP is going to do. He is in a position of power and he has the backing of the vast majority of his constituants. Time for Kenny to step up to the plate and use the powers that his constituants have given him.

[wangi]

Exactly. Don't let this decision result in the school being ripped out of our community.

[seanie]

I think the suggestion's just a panic reaction. People were shocked by the court judgement, and there's a superficial logic to it. They've got plans all drawn up for a new school in Craigmillar but no money to build it because the redevelopment's stalled, whereas they've got money for a new PHS but no site. But I can't see it getting very far as an idea because there are lots of difficulties when you start to think it through.

[Porty]

Still reckon a travellers site would be a good addition to the area, You know, social inclusion and all that. .

We should maybe ask the travellers before deciding to socially include them. Not sure they would be happy with some of the neighbours, nevermind some of the visitors.

[Porty]

I am looking to see what our MSP is going to do. He is in a position of power and he has the backing of the vast majority of his constituants. Time for Kenny to step up to the plate and use the powers that his constituants have given him.

BIGTIME!!!

What does everyone feel about the Council in the light of the decision? Personally I still have faith. I believe they conducted the process very well and in line with the legal advice they sought and paid for. They have to find a way to deliver this school on the park and should pursue every possible route to do so.

[Mark Cameron]

Folks - write to your elected representatives - tell them how you feel and what needs to be done. Some suggestions:

• michael.bridgman@edinburgh.gov.uk - Councillor Michael Bridgman, Portobello/Craigmillar ward
  maureen.child@edinburgh.gov.uk - Councillor Maureen Child, Portobello/Craigmillar ward
  kezia.dugdale.msp@scottish.parliament.uk - Kezia Dugdale MSP, Lothian region
  sheila.gilmore.mp@parliament.uk - Sheila Gilmore MP, Edinburgh East
  paul.godzik@edinburgh.gov.uk - Councillor Paul Godzik, Convener of Education, Children and Families Edinburgh Council
  kenny.macaskill.msp@scottish.parliament.uk - Kenny MacAskill MSP, Edinburgh Eastern
  michael.russell.msp@scottish.parliament.uk - Michael Russell MSP, Cabinet Secretary for Education and Lifelong Learning
  nicola.sturgeon.msp@scottish.parliament.uk - Nicola Sturgeon MSP, Deputy First Minister & Cabinet Secretary for Infrastructure, Investment and Cities

Have just sent my letter...

Me too - thanks for this Wangi

I'd urge everyone to do the same.

[Bob Jefferson]

What does everyone feel about the Council in the light of the decision? Personally I still have faith. I believe they conducted the process very well and in line with the legal advice they sought and paid for. They have to find a way to deliver this school on the park and should pursue every possible route to do so.

Likewise, I attach no blame to the Council. A few selfish nimbys have taken advantage of a hopeless legal system and arcane laws and struck lucky. For now.

[Underscore]

I'm now very worried that my children wont have a school worth attending.

[PortySeahawks]

The idea of a super school with Castlebrae makes no sense to me.

It would mean removing Portobello HS from the centre of our community. Would it even be Portobello HS if this happened? We cannot allow these NIMBY's to drive a school out-width our community. The councillor who is quoted in today's EEN shouldn't be mentioning this idea in the press.

http://www.scotsman.com/edinburgh-eveni ... -1-2523528

Saw that Kezia Dugdale had submitted a question over the new School at First Minister's Questions today but was sadly not called upon during the allotted time. Good to see.

https://twitter.com/kdugdalemsp/status/ ... 1336907776

[Franck]

Saw that Kezia Dugdale had submitted a question over the new School at First Minister's Questions today but was sadly not called upon during the allotted time. Good to see.

https://twitter.com/kdugdalemsp/status/ ... 1336907776

She also touted Craigmillar as a potential site yesterday...

[Chas]

What does everyone feel about the Council in the light of the decision? Personally I still have faith. I believe they conducted the process very well and in line with the legal advice they sought and paid for.

I disagree. It [the judgement] reads to me as though the Judges are (at least in part) saying that it is the clauses in the original deeds gifting the land to the Town which make building on the park illegal. The way I read it, the Council (and their advisers) should have known those clauses were there and should not have proceeded, gung-ho, with the project, assuring us all along the way that it was OK.

As I interpret it (and, with hindsight, what PPAG have essentially wanted to test all along), the correct procedure in 2006 should have been to set aside the terms of the original deeds, through the Courts; any objections raised to that would/should have been drowned out by the majority of the Community.

Do correct me if my reading of the [Court] papers is wrong or misguided…

[fresian]

Chas, it could just have come down to areas where different points of law actually contradict each other. The original court ruling, which was made by a judge who, I assume, had some understanding of law, came down against PPAG. The law is indeed an ass.

[Chas]

The law is indeed an ass.

Can't disagree with you on that one!

The point I guess I'm trying to make is that it is the Law which has put the brakes on this very necessary project, not the people who questioned the Councils actions (even if their challenge was fuelled by self interest).

[Bob Jefferson]

I wish people would stop saying that the land was 'gifted'. It was sold for £25000, the market value at the time. Millions of pounds by today's value. It may not make a difference in terms of the Common Good status of the land but it irks me that this myth is perpetuated. The owner was almost certainly a shrewd businessman, not a philanthropist.

[lg1726]

I wish people would stop saying that the land was 'gifted'. It was sold for £25000, the market value at the time. Millions of pounds by today's value. It may not make a difference in terms of the Common Good status of the land but it irks me that this myth is perpetuated. The owner was almost certainly a shrewd businessman, not a philanthropist.

Whist it may not make a difference in terms of the legal status, it can and does make a difference in the perception of the status. If people believe that it was a conditional gift they may view it in a rather more benign way that if they understand that it it was bought by the council. That Bob would like me buying your house and you stipulating what colour I should paint the front door! Now if you gifted me your house with the same condition, that would be quite different!!!

[seashell]

Ah, colour of door would come under the category of 'neighbourhood burdens' - and believe me, there are similar burdens in existance. A real burden can be created in any constitutive deed, not just dispositions, so there isn't any need for a price to be paid.

[Porty]

I disagree. It [the judgement] reads to me as though the Judges are (at least in part) saying that it is the clauses in the original deeds gifting the land to the Town which make building on the park illegal. The way I read it, the Council (and their advisers) should have known those clauses were there and should not have proceeded, gung-ho, with the project, assuring us all along the way that it was OK.


As I interpret it (and, with hindsight, what PPAG have essentially wanted to test all along), the correct procedure in 2006 should have been to set aside the terms of the original deeds, through the Courts; any objections raised to that would/should have been drowned out by the majority of the Community.

Do correct me if my reading of the [Court] papers is wrong or misguided…

The council did not know or accept that PP was common good land in 2004/6. Truth be told it has still to be determined. The council have only ceded that it is, it looks like a mistake to have done so

The burdens attaching to the land were feudal and sold to the Liverpool and Victoria Assurance Company. Those burdens "fell off" in 2004 as a result of the feudal reform act. There was no need to go to court.

As far as I am aware the Council did not start the process knowing what was in the original disposition, which only came to light when one of our fellow posters uncovered them at ROS.

An opinion from the lands tribunal may have closed the door on Lady Paton's judgment.

[Bob Jefferson]

Can someone point me towards the deeds for Portobello Park?

[seashell]

They'll be available from NAS - National Archives of Scotland, Bob.

[Bob Jefferson]

Don't we have a PDF?

[Stephen Dishon]

Just out of curiosity are we saying we will now accept the council selling the whole park in order to build on the bit we want or are we hoping the council only sell the bit we want to a “trust”?

[wangi]

Can someone point me towards the deeds for Portobello Park?

They'll be available from NAS - National Archives of Scotland, Bob.

Don't we have a PDF?

Sure, see:


(click image for the PDF) - Would be great if someone could type this up, it's torture to read!

Having had a bit of time to think this through now, it really was a surprising and disappointing legal decision
yesterday which prevents the building of a desperately needed Portobello High School on Portobello Park. Our electected representatives need to do everything in their power to ensure the communities of Bingham, Brunstane, Christians, Duddingston, Durhams, Joppa, Magdalenes, Mountcastle, Northfield, Parson’s Green, Piershill, Portobello and Willowbrae in East Edinburgh will as soon as possible have access to a high school which is fit for purpose, safe and allows our children to be educated to the best possible standard. Portobello Park is the least worst option for the new school. Edinburgh Council carried out extensive consultation on this and there are no other credible alternatives.

PPAG represent a very small number of people within our community. They place more importance on their own immediate amenity than that of the community as a whole. During this long process they have made numerous statements which show their green credentials for what they really are – greenwash. They have proposed other parks instead.

This common good land should be made to work for the common good of our community. There is clear majority support for the building of this school on Portobello Park. We have a project which has planning permission and a contract agreed – shovel ready, just what we need for the building industry during these hard times.

The following four options need to be fully considered by our representatives:

1. A private act of parliament to enable a new Portobello High School to be built on Portobello Park

2. An act of parliament to allow inalienable common good to be appropriated to alternative uses with the consent of the courts

3. Investigation of possible alternate approaches – for example sell site to an arms-length company, they build & then lease school back to Edinburgh Council. That’s a perverse situation, a mockery of common good, but supposedly achievable with current legislation!

4. Legal appeal, if sufficient grounds are believed to exist.

Options 3 and 4 are less than ideal – we need to move this decision out of the courts and on to our democratically elected representatives.

And lets not get sidetracked by discussions which are non-starters – in particular the idea that Portobello High School could be built in Craigmillar on the site of Castlebrae (well outwith the catchment). Do not rip the school out of our community. We need a school which is centrally located within a reasonable sized catchment in order to facilitate active travel. Schools are central to a sense of community.

The decision also highlights the need for review and clarification of legislation related to Common Good.

[gillian]

Kenny MacAskill replying to emails very quickly, hope his actions are as prompt.

[Bob Jefferson]

Can someone point me towards the deeds for Portobello Park?

They'll be available from NAS - National Archives of Scotland, Bob.

Don't we have a PDF?

Sure, see: http://talkporty.org/hosted/newphs/port ... -deeds.pdf

Cheers. I've posted the link on Andy Wightman's blog, awaiting moderation.

[fresian]

Ran by this way last night on the way home, I noticed there is a small Gas governor building located in the south west corner of the park. I assume that this is also in contravention of the deeds??

[wangi]

Pupils at Portobello High School have created the following page on Facebook: http://www.facebook.com/SavePortyHigh

[rathbone]

Would be great if someone could type this up, it's torture to read!

I don't think it all need to be typed up (most of it is about road widths and drainage arrangements!)
The salient parts are:-

" I, Sir James Miller of Manderston in the County of Berwick, Baronet Heritable, Proprietor of the Lands and others after disposed in consideration of the sum of Twenty five thousand Pounds sterling now paid to me by the Lord Provost Magistrates and Council of the City of Edinburgh ... do hereby sell alienate and in feu form dispone to and in favor of the said the Lord Provost Magistrates and Council of the City of Edinburgh and their successors in office as representing the Community of said City heritably and irredeemably, all and whole that area or piece of ground part of the lands of Easter Duddingston belonging to me as the said area or piece of ground is shown and delineated and coloured pink on the plan annexed and signed by me .... videlicet on the north north west and north in the first place by the street or road called Stanley Street in the second place by the ground feued by me to Miss Mary Elizabeth Burton and in the third place by ground belonging to the North British Railway Company and the ground belonging to me hereby feued may be on the east by the road called Hope Road [Hope Lane] on the south by the road called Milton Road and on the west by the street or road called Duke Street [Park Avenue] which area or piece of ground hereby disponed is part and portion of all and whole certain parts and portions of the Lands and Estate of Easter Duddingston belonging to me lying within the Parish of Duddingston and County of Edinburgh.

......

Primo. That the area or piece of ground hereby disposed shall be used exclusively as a Public Park and Recreation Ground for behoof of the Community of the said City and it shall not be competent to nor in the power of any said dispones or their foresaids to erect or build or give liberty to any person or persons to erect or build houses or buildings of any kind whatsoever thereon except buildings to be used as a house or houses for the Park Officers and Gatekeepers to be employed by my said disponees or for other purposes appropriate to the uses of the area or piece of ground thereby disponed as a public park or recreation ground.

......

Sexto. That if my said disponees or their foresaids shall act contrary to any of the reservations, conditions, provisions and declarations herein expressed then this Feu Right and all that may have followed upon the same shall become void and null and the said area or piece of ground hereby disponed shall revert to me or my foresaids in like manner as if this Feu had never been granted."

[Porty]

Great work Rathbone and Wangi- the latter's summation is commendable.

[mr magnolia]

so we need to find him or his forsaids, agree with them that CEC can have the land back once it reverts to the forsaids following the start of building works, and then start building!

[wangi]

http://www.keziadugdale.com/2012/09/14/ ... edinburgh/

It has been a bad week for education in the East of Edinburgh.
...
Just as the initial shock of the Castlebrae High news set in, the Court of Session ruled that Portobello High School could not be built on Portobello park, upholding the appeal lodged by PPAG.

This was shocking, not because it was unexpected, but simply because the general school of thought was that the appeal would be refused.

What is important to note here is that two court rulings have taken two diametrically opposed positions and done so unequivocally. First and foremost, that tells me that the law with regards to Common Good Law is in total disarray.

We need to get this debate out of courts and reintroduce some sort of democratic process.

I tried to get in at First Minister’s Questions yesterday in Parliament to ask the First Minister to instruct his government to conduct a fundamental review of common good law in light of the Portobello decision – but I wasn’t called by the Presiding Officer.

I have tabled this question for Tuesday’s “Topical Questions” and very much hope to get called then.

Andy Wightman has written a couple of very interesting blogs over the past couple of days on the Portobello situation and also posed the possibility of a private act of parliament which could resolve the situation, much in the same way that a private act of Parliament was necessary to build the extension to the National Galleries back in 2003.

Private Acts of Parliament are very different, and not to be confused with Private Members Bills, and you can read about differences by clicking on the links: http://www.scottish.parliament.uk/parli ... 25656.aspx & http://www.scottish.parliament.uk/parli ... 15709.aspx

I spoke to Andy yesterday morning before FMQs and he is very firmly of the view that a review of the law on common good is long overdue.

I floated the idea of a new Portobello High, in Craigmillar, as a possible solution to the education crisis now facing the East of Edinburgh on Twitter yesterday. I did this simply to start a debate about alternative, radical, different solutions – we need to think creatively about what happens next.

Dead are the days of politicians doing things to communities, no solution to this crisis will be found in the depths of the council chambers. It has to be community led and done in conjunction with elected members.

That’s why I know my colleagues Sheila Gilmore and Maureen Child are working tirelessly behind the scenes to organise a public meeting for the community to air their views and to start mapping out the way forward. Details of this will be available shortly.

If you’d like to get in touch with me in the meantime to share your view, email me at kezia.dugdale.msp@scottish.parliament.uk.

[Mark Cameron]

I hope Sheila and Maureen are looking at hiring the Town Hall for this as I suspect interest is going to be huge.