New Portobello High School - PPAG Judicial Review

[Scoop]

Anyway, back to the question of mediators. Are mediators not meant to be impartial? So, that can't be right.

[seanie]

Maybe you should start a new topic.

To assist your recollections.
You're reminding me of a wee dog I used to have years ago that loved running around in a circle chasing its tail and getting not very far.

Do you have something to say on the subject "New Portobello High School - PPAG Judicial Review"?

[Puerto bella]

I did, a couple of pages back. I should get back to my corner now, dont want to wind you up to your usual frenzy - Scoop is doing a good enough job on that.

All this stuff is hot air anyhow- Lady Dorrian will decide and that will be that. So what's the point in the topic just a bit of late night PPAG bashing to get you into your stride for a good rant on tinternet.

[Scoop]

Do you have something to say on the subject "New Portobello High School - PPAG Judicial Review"?

Do you?

I was beginning to think it was an appreciation of Alison Connelly thread; the amount of times you felt compelled to use her name gave you away. I think it was subliminal. But maybe not.

[Makaveli]

But it is in people's interest if the funds were raised under false pretences non?

Not only that but as other have asked why has there been such a big delay?

If my kids were due to be going to the new school I would be pretty pissed off that a couple of people who think that the park is an extension of their back garden have tried to thrown a spanner in the works out of what appears to be just pure wickedness.

Coffee morning = pay money, get a cup of coffee. Sit down and have a natter with your friends. Someone else washes up. Who really cares where the money is going so long as the coffee is hot and the buns are fresh. Should there be more to it than that? Really?

False pretences? What false pretences? What exactly were they saying to these people as they held a gun to their heads to extract money from them? I went to a coffee morning and a pop quiz. I enjoyed myself. I parted with my money and I did it all of my own accord because I'm an adult and it's up to me what I spend my hard earned cash on. Why do you keep asking us why there's been such a big delay? We went for a coffee - end of.

I never mentioned a coffee morning or a pub quiz. I was meaning the lies and falsehoods that have been touted by PPAG to try and extract money from people who are presented with incorrect information by the PPAG. If people are too stupid to get the facts on a subject and contribute money to something they don't have the full facts on then more fool them.

It's just a shame that it is affecting the youth of Portobello.

[seanie]

Do you have something to say on the subject "New Portobello High School - PPAG Judicial Review"?

Do you?

Lots...

I thought I’d run through the legal arguments as I understood them, but it may be useful to clarify some things. Firstly Common Good falls into two categories; alienable and inalienable. The former is in effect little different from other property the Council might own and can readily be sold or its use changed. The latter generally applies to Common Good items with a particular public benefit and the park falls under this category. It’s also worth distinguishing between the following; disposal, alienation, appropriation. Disposal would typically be selling or perhaps destroying something, alienation is closer to depriving people of the benefit of something, and appropriation is really changing the use of something. These terms can overlap, so that a disposal could also constitute an alienation for example, but they are distinct concepts.

Now the core PPAG case is very straightforward. They’re not really challenging the process, rather they’re advancing an ultra vires argument that the Council have no power to appropriate part of the park. Essentially they’re claiming that it is simply unlawful to appropriate inalienable Common Good land.

The starting point for this line of argument was the Local Government (Scotland) Act 1973. This sets the current statutory framework for governance of the Common Good. The key section is worth quoting in full.

75 Disposal, etc., of land forming part of the common good.

(1)The provisions of this Part of this Act with respect to the appropriation or disposal of land belonging to a local authority shall apply in the case of land forming part of the common good of an authority with respect to which land no question arises as to the right of the authority to alienate.

(2)Where a local authority desire to dispose of land forming part of the common good with respect to which land a question arises as to the right of the authority to alienate, they may apply to the Court of Session or the sheriff to authorise them to dispose of the land, and the Court or sheriff may, if they think fit, authorise the authority to dispose of the land subject to such conditions, if any, as they may impose, and the authority shall be entitled to dispose of the land accordingly.

(3)The Court of Session or sheriff acting under subsection (2) above may impose a condition requiring that the local authority shall provide in substitution for the land proposed to be disposed of other land to be used for the same purpose for which the former land was used.

Section (1) is addressing alienable Common Good land, and is effectively saying it can be appropriated or disposed of as per the provisions set out for land in general. Section (2) is addressing inalienable Common Good land but note an omission; Section (1) talked of appropriation or disposal whereas Section (2) only mentions disposal; appropriation is not mentioned. PPAG’s contention is that that is because appropriation is unlawful. They also pointed out that the predecessor act (1949 I think) also lacked a reference to appropriation when it came to inalienable Common good land.

This leads to something of an oddity. Under section 75 of the Act a Local Authority can go to court and obtain permission to dispose of (and consequently alienate) inalienable Common Good land, but has no means to apply for permission for a less drastic act of appropriation. The hypothetical raised by Lady Dorrian was that, following this line of argument, a Local Authority couldn’t build a leisure centre & swimming pool on inalienable Common Good land but could, at great public expense, purchase land elsewhere to build it and fund that through the disposal of the self-same Common Good land they were unable to appropriate, on the face of it a preposterous state of affairs. The PPAG position appears to be that, even if preposterous, that’s the law.

(As an aside it’s interesting that (2) uses the wording ‘may apply to the Court of Session’ rather than ‘shall’. That suggests that Local Authorities don’t necessarily have to get court permission to dispose of inalienable land, merely that there is a mechanism for them to do so.)

[Scoop]

(As an aside it’s interesting that (2) uses the wording ‘may apply to the Court of Session’ rather than ‘shall’. That suggests that Local Authorities don’t necessarily have to get court permission to dispose of inalienable land, merely that there is a mechanism for them to do so.)

So, let me get this straight in my head, the Council don't need to get court permission to dispose of inalienable land? Forgive me if this has already been asked before, but have they been given permission to dispose of inalienable land?

[seanie]

The Council aren't proposing to dispose of inalienable Common Good. They're proposing to appropriate it.

[Scoop]

Ok, but does the same apply? Can they get court permission to appropriate it, even though they don't necessarily need to get that permission? I'm just trying to get me head round the law.

[Porty]

Oops sorry to interject. Sean will do this much better than i can.

The council are only proposing to appropriate a small percentage of this particular piece of ICGL (around 6%) whilst neither disposing or appropiating the remaning 94% or thereabouts.

If my understanding is correct, should the council wish to build houses where they intend building the school, then they MAY have to apply to the court to do so.

The law seems to treat appropriation as much less significant than disposal and there is therefore no provision or mechanism for a court procedure. Therefore It is impossible to understand. why PPAG's insistence that the council must seek approval from the court, for appropriation,makes any sense.

[Scoop]

6%? that's a typo, right?

[seanie]

No idea of the %, but the core PPAG case is that it is impossible for the Council to appropriate any inalienable Common Good land. It's not a question of getting permission from the courts, it is simply unlawful.

[seanie]

Going back to the legal arguments and Section 75(2) of the Local Government Scotland Act, PPAG did suggest that the lack of reference to appropriation might be an accidental omission, but they insisted that if there was a deficiency in the law it was for the Scottish Parliament to rectify not the courts.

They also argued, perhaps trying to anticipate a Council line of argument, that they would only be too happy if the School could be considered under Section 75 (2), as all they had ever wanted was an independent arbiter, but that sadly the wording of the act didn’t support it. In that they’re probably right. Certainly in case law there have been times when ‘disposal’ has been construed in a very wide sense, perhaps wide enough to include alienations and appropriations short of sale or destruction, but given that appropriation is included as a distinct term in (1) it would be hard to argue that disposal in (2) also meant appropriation.

PPAG then referred to various cases to justify the interpretation that appropriation of inalienable land is unlawful. However, they conceded it was difficult to find cases that were a close parallel, and their argument was more by inference. They didn’t produce a single instance where a judge had offered an opinion that it was unlawful, as a matter of principle, to appropriate such land. Given that it’s a fairly simple concept to express its odd why, if true, it’s never been said in clear and unambiguous terms.

Having gone through earlier case law PPAG then turned to the recent South & North Lanarkshire cases, where Local Authorities had been given the green light to proceed with building schools in inalienable Common Good land. Here it was argued that the courts had indeed been correct to conclude that what was proposed did not constitute a disposal under Section 75 (2) but had failed to consider the question of appropriation. So in effect the judges in the Inner and Outer Houses had erred by not considering the issue widely enough and not recognising that what was proposed, whilst not a disposal under the statue, was nevertheless an unlawful appropriation under Common law.

[Porty]

Ok, but does the same apply? Can they get court permission to appropriate it, even though they don't necessarily need to get that permission? I'm just trying to get me head round the law.

An analogy:

Wife= inalienable common good land.
Disposal (legal)= Divorce
Appropriation= proposing Wife change of use; perhaps in the form of a different lover.

To dispose of one's wife legally, permission has to be obtained from the court.
if one seeks only to appropriate one's wife, the court has no mechanism nor requirement to be involved.

PPAG are attempting to establish that if one wants to appropriate ones wife to a change of use, then the courts must be engaged and their permission sought. No permission means its unlawful.

Hardly convincing is it, how big is your donation likely to be?

[Porty]

6%? that's a typo, right?

Nah- it may be 1 or 2% out but its a fairly accurate guesstimate. The common good land in question is one piece of "park or recreation space" Portobello PArk. The only bit of the existing park that will be inaccessible to the general public 24/7 will be the building footprint, that's the bit that's being appropriated. 94% of the park will remain as is in terms of use, although it will be improved and upgraded. Lady Dorrian has been fully informed.

(surely I don't have to do the dog walkers will be able to walk their dogs stuff again?)

100% of the park will not be disposed of. The council will retain ownership.

[Scoop]

It seems like it will be a very small school if it is only to make 6% unaccessible.

[Scoop]

Ok, but does the same apply? Can they get court permission to appropriate it, even though they don't necessarily need to get that permission? I'm just trying to get me head round the law.

An analogy:

Wife= inalienable common good land.
Disposal (legal)= Divorce
Appropriation= proposing Wife change of use; perhaps in the form of a different lover.

To dispose of one's wife legally, permission has to be obtained from the court.
if one seeks only to appropriate one's wife, the court has no mechanism nor requirement to be involved.

PPAG are attempting to establish that if one wants to appropriate ones wife to a change of use, then the courts must be engaged and their permission sought. No permission means its unlawful.

Hardly convincing is it, how big is your donation likely to be?

Is that like the offside law? I don't recall saying I would make a donation, but this has put me in the frame of mind to do so. And I won't ask for a receipt. Or to interrogate their balance sheet.

[Porty]

It seems like it will be a very small school if it is only to make 6% unaccessible.

A relatively small school building on a comparatively large piece of CGL. The pitches will count as open accessible space, mainly due to their openness and accessibility

It is not a matter for speculation, Scoop. Detailed planning permission has been granted.

[Porty]

I don't recall saying I would make a donation, but this has put me in the frame of mind to do so. And I won't ask for a receipt.

Do you get a lot of mail from Nigeria?

[seanie]

The total area of the land is over 20Ha. The golf course constitutes over 14Ha. The school and pitches combined are probably around 4Ha, or 20% of the total. Porty's line of the argument that the pitches should be excluded is not unreasonable. If they're publicly accessible then they don't really represent a change from the inalienable recreational use of the park. Take them out of the equation and you're probably looking at less than 10% of the total. 6% might be on the low side but it's not far out on that reckoning.

[Scoop]

Is this a different situation to Bigwold Park in Wick?

[seanie]

Is this a different situation to Bigwold Park in Wick?

There is no Bigwold Park in Wick. It's called Bignold Park.

[Scoop]

Typo. No more. No less.

[seanie]

Well there was a proposal to build a school on Common Good land at Bignold Park, and Highland Council received an opinion that the land could not be appropriated, in terms not dissimilar to the argument put forward by PPAG in the Court of Session. But the PPAG argument certainly appears to be inferred, rather than supported by clear authorities in the the case law, and it does lead to what appears to be a somewhat preposterous situation.

[Epykat]

I never mentioned a coffee morning or a pub quiz. I was meaning the lies and falsehoods that have been touted by PPAG to try and extract money from people who are presented with incorrect information by the PPAG. If people are too stupid to get the facts on a subject and contribute money to something they don't have the full facts on then more fool them.

But the coffee morning and the quiz are surely crucial to the accusation of extraction by deceipt. We were dragged along to a coffee morning under false pretences - little did we know they were also serving tea and that inadvertently they were going to use our 50p entry money to sentence small children to a life of suffering in a tower block.....and what about the people who had the facts and still contributed money - are they in or out of the 'stupid' bracket?

[Scoop]

Well there was a proposal to build a school on Common Good land at Bignold Park, and Highland Council received an opinion that the land could not be appropriated, in terms not dissimilar to the argument put forward by PPAG in the Court of Session. But the PPAG argument certainly appears to be inferred, rather than supported by clear authorities in the the case law, and it does lead to what appears to be a somewhat preposterous situation.

No two cases are ever exactly the same though. In my opinion, these cases are arguing the same point. Just my opinion though.

[Scoop]

Talking of fundraising, does anyone remember the Ladies Night at the Toddler's Hut 20 years ago? Another fundraiser like that might help PPAG. Win win situation for all concerned if you ask me.

[Epykat]

Talking of fundraising, does anyone remember the Ladies Night at the Toddler's Hut 20 years ago? Another fundraiser like that might help PPAG. Win win situation for all concerned if you ask me.

And think of all the choices we'd have for the star attraction!

[Porty]

It was St James who were duped into accepting the booking . They were unhappy when the true cause was discovered. .I dont believe anyone is suggesting that you didnt know you were doing your bit to delay the school. you're far from daft.

[seanie]

There's only one case at present. The Bignold Park issue hasn't been brought before a court.

However, as I said, the underlying rationale seems similar to the argument advanced by PPAG. However the opinion offered in the Bignold Park case, at least so far as described by Highland Council, doesn't explain in detail why the 1973 Local Government Scotland Act prohibits appropriation, doesn't make reference to the precedents of the North and South Lanarkshire cases, and doesn't consider the effect of the 2003 Local Government Scotland Act.

[Epykat]

you're far from daft.

That's the nicest thing you've said to me in the past 6 months. I'm touched.

[Scoop]

There's only one case at present. The Bignold Park issue hasn't been brought before a court.

However, as I said, the underlying rationale seems similar to the argument advanced by PPAG. However the opinion offered in the Bignold Park case, at least so far as described by Highland Council, doesn't explain in detail why the 1973 Local Government Scotland Act prohibits appropriation, doesn't make reference to the precedents of the North and South Lanarkshire cases, and doesn't consider the effect of the 2003 Local Government Scotland Act.

Wonder if it (Bignold) was referred to in court last week? I think Wick Council were advised that there would (rightly) be a legal challenge if they went ahead with their plans.

[seanie]

It was not referred to last week.

If you're arguing a case in law you really have to base it on established law; either statute or judgements in previous cases. You need that to support your opinion.

And in the Bignold Park case, in the absence of an actual case, there's only an opinion. It has no authority.

[Scoop]

.I dont believe anyone is suggesting that you didnt know you were doing your bit to delay the school. you're far from daft.

Admit it Epy, you knew what you were doing. As you chewed over every sweet morsel , savouring the delicate flavours of sugar and fat combined, you were thinking, that's the school delayed by another 10 seconds. Munch. and another. Munch. And another. You knew what you were doing alright. Greedy mare. More tea?

[Scoop]

It was not referred to last week.

If you're arguing a case in law you really have to base it on established law; either statute or judgements in previous cases. You need that to support your opinion.

And in the Bignold Park case, in the absence of an actual case, there's only an opinion. It has no authority.

Stopped them building on the park though, didn't it? That's a strong opinion going on there. Maybe Wick Council didn't want the expense and delay that a legal challenge might bring. Maybe not. I'm surprised no-one has looked at this case though. I'll email PPAG, seems the decent thing to do.