New Portobello High School- Where and how?

seanie · Post by **seanie** » 03 May 2007, 19:02

I sent the following in response but it's unlikely to get printed given the election (amongst other things);

Stephen Hawkins, Liberal Democrat candidate for Portobello/Craigmillar, appears confused as to the implications of the claim that Portobello Park is Common Good land. There is no question of ownership. If the land is Common Good, an issue that obviously must be resolved, then conditions would apply as to how that land could be used. But ownership would still rest with the council and the extent of any restrictions would be a matter for the courts to decide.

Should he be successful in his bid to become a Councillor he may wish to familiarise himself with the statutory framework in which Local Authorities operate. In doing so he would discover that the Local Government (Scotland) Act 1973 already makes explicit provision for the disposal, alienation or substitution of Common Good land subject to conditions. The decision last December to build on the park, that received unanimous cross party support including the Liberal Democrats, required replacement public green space to be made available. If that can be done a straightforward transfer of status might resolve the issue should the park be ruled Common Good.

As for rebuilding on-site we must simply agree to differ. Decanting over 1400 pupils, for two years or more, only to shoehorn them back onto a site too small to properly meet their educational needs, does not strike me as desirable. That this would also be a significantly more costly “solution” makes it seem even less sensible.

I understand and share concerns about the loss of green space but I believe there are circumstances in which it can be justified. I also believe that first-rate schools are in our common good. Given the limited options available, and the dismal prospect that is rebuilding on site, I and many others feel a school on the park is the best way forward. However, since the community is clearly divided on the issue, I make no unsubstantiated claim to speak for the majority. I leave that to others.

Poppy · Post by **Poppy** » 03 May 2007, 19:14

seanie wrote:I sent the following in response but it's unlikely to get printed given the election (amongst other things)

Election bedamned. It's a bit too balanced to be printed!!

Bob Jefferson · Post by **Bob Jefferson** » 03 May 2007, 19:16

It saddens me that PPAG appear to want to win this argument at any cost and I don't believe that our children's education is even a factor in the equation.

Pal of Porty · Post by **Pal of Porty** » 03 May 2007, 19:51

Stephen Hawkins, Liberal Democrat candidate for Portobello/Craigmillar, West Brighton Crescent ended his abovementioned letter in the Evening News with,

"I hope that everyone will be able to participate in where the school is sited and how it is going to contribute to the whole community."

And here is me thinking that was the purpose of the 2 statutory consultations and the Town Hall public meeting. Not to mention the cross party, UNANIMOUS decision taken to site PHS on the park at last December's meeting.

Dadaist · Post by **Dadaist** » 03 May 2007, 21:00

Bob Jefferson wrote:It saddens me that PPAG appear to want to win this argument at any cost and I don't believe that our children's education is even a factor in the equation.

I don't think you'd act in a very different matter if you agreed with them.

When you said that the bowling green behind your house was worth defending with your life, I would define that as being within the price range of "any cost" you just decried. Do you sadden yourself?

I think you've played a large part in helping to create the monster that is PPAG and should take your share of the blame, rather than being surprised that they are angry and combative.

You helped beat them into a corner and seem surprised that they snarled instead of rolling over.

Given the treatment of PPAG and its members, I now expect nothing less of them than a fight to the death.

seanie · Post by **seanie** » 03 May 2007, 21:58

Dadaist wrote:Given the treatment of PPAG and its members, I now expect nothing less of them than a fight to the death.

How about "stone, paper, scissors" instead?

We wouldn't want unnecessary loss of life.

Bob Jefferson · Post by **Bob Jefferson** » 03 May 2007, 22:19

Newsflash:

PFANS calls end to terror campaign

The paramilitary PFANS Volunteer Force has declared that it is renouncing violence and will cease to exist as a terrorist organisation from midnight. It also said it will keep its weapons, but has put them "beyond reach".

seanie · Post by **seanie** » 03 May 2007, 22:26

But have Real PFANS made any declaration?

How about Continuity PFANS?

Dadaist · Post by **Dadaist** » 04 May 2007, 20:23

I wonder who will be in charge of planning in the new-look CEC.

seanie · Post by **seanie** » 04 May 2007, 21:52

As far as the schools are concerned who's head of planning is unlikely to be significant. The more significant questions would be how the make-up of Holyrood impacts on funding and whether the changes at CEC mean we're back to a blank slate. I'd think not but we'll have to wait and see.

Dadaist · Post by **Dadaist** » 04 May 2007, 22:15

I was wondering about someone who was PPAG-friendly becoming head of planning and then having to divest themselves of public pronouncements etc, in the way that Maureen elaborated her and Larry had to act during the Superstore campaign.

Anyway, there was cross-party support at CEC and they've already voted - haven't they?

From Labour asking Labour for money, to Lib Dems maybe asking Nats for money.

Sleep well, our nation's politicians.

seanie · Post by **seanie** » 04 May 2007, 23:14

Dadaist wrote:Anyway, there was cross-party support at CEC and they've already voted - haven't they?

It's politically difficult to reverse such a decision without a strong reason but there's nothing set in stone.

Bob Jefferson · Post by **Bob Jefferson** » 05 May 2007, 18:43

Seanie's letter makes the EN:

Law is clear on common land

seanie · Post by **seanie** » 05 May 2007, 18:49

Given everything else that's going on I'm surprised. Maybe with the Bank Holiday weekend more well-adjusted people have better things to do than write pedantic letters.

tom nimmo · Post by **tom nimmo** » 06 May 2007, 10:05

In response to my question about how many individuals had contributed to this thread I had a feeling that the only way to find out would be to trawl through from the beginning. I am curious, but not that curious, so I don't think I'll bother. From the figures posted above it is, not surprisingly, inconclusive about who wants what and, in my opinion, hardly representative anyway. Bob, please, please, please drop this pathetic pleading on behalf of "our children". It's irritating and smacks of something the Sunday Post would write.

Bob Jefferson · Post by **Bob Jefferson** » 06 May 2007, 10:38

tom nimmo wrote:Bob, please, please, please drop this pathetic pleading on behalf of "our children". It's irritating and smacks of something the Sunday Post would write.

Not half as irritating as "this much loved green space". But I promise to stop as soon as the builiding of the new school commences, hopefully in 2011 unless PPAG find a way of delaying it further.

tom nimmo · Post by **tom nimmo** » 06 May 2007, 12:00

Bob Jefferson wrote:
tom nimmo wrote:Bob, please, please, please drop this pathetic pleading on behalf of "our children". It's irritating and smacks of something the Sunday Post would write.
Not half as irritating as "this much loved green space". But I promise to stop as soon as the builiding of the new school commences, hopefully in 2011 unless PPAG find a way of delaying it further.

Excellent, I'll hold you to your promise. I will log back in in 2011 to remind you.

Epykat · Post by **Epykat** » 06 May 2007, 19:36

tom nimmo wrote:Excellent, I'll hold you to your promise. I will log back in in 2011 to remind you.

You won't have time to log in Tom, you'll have to chum me up to the golfie to pick Bob's bits up from under the bulldozers

tom nimmo · Post by **tom nimmo** » 07 May 2007, 12:46

Bulldozers on the golf course! Outrageous. 2011 says Bob. Another 4 years of this thread would be disaster for Scotland, disaster for Edinburgh, disaster for Portobello and, if it hasn't happened already, disaster for Bob's sanity.

mr magnolia · Post by **mr magnolia** » 07 May 2007, 15:02

er..

for those of us too 'something' to have read all posts here,
and who don't keep up with the Evening News slant on life,

can I ask for a score on my understanding of things as they lie post-election?

1. CEC are (were unanimously) committed to providing a new Portobello High School by 2011.
2. New PHS is to be sited on the current park area at(ish) the junction of Milton Rd and Park Avenue
3. New PHS will only be built once CEC have found 'equivalent' green space replacement for the loss.
4. Money to fund the new PHS will have to come, largely, from the Scottish Executive.
Which may or may not decide to give it.
5. An application for the funding has not yet been made by CEC.
6. There is a legal thing about 'common good' ground to be resolved before building commences.
7. CEC have already identified an 'equivalent green space' around the nether regions of Brunstane.

I've tried to make these points as statements rather than opinions as I am genuinely perplexed as to where
CEC and the Executive may head in these new heady days of non-coalition politics. I don't know whether what went
before is now all up for grabs, or part of it, or none of it. As a starting point, I'm hoping for some clarity as
to whether points 1-7 above are correct.

Your scores will be welcomed.

thanks in advance

Dadaist · Post by **Dadaist** » 07 May 2007, 15:10

That's a good and unbiased summary!

Poppy · Post by **Poppy** » 07 May 2007, 15:14

Dadaist wrote:That's a good and unbiased summary!

Let's hope the answers to his questions are the same!!

seanie · Post by **seanie** » 07 May 2007, 17:45

Seems pretty much correct to me.

seanie · Post by **seanie** » 07 May 2007, 18:20

From memory the 2011 was the earliest date anticipated.

seanie · Post by **seanie** » 08 May 2007, 20:18

On the subject of Common Good I've tried to do some background reading. There doesn't actually seem much that's easily accessible on the topic and I've mainly relied on Andrew C. Ferguson's Common Good Law as recommended by Andy Wightman.

I confess a couple of chapters had me lost but my understanding of the situation is as follows;

The question of Common Good is not a question of ownership. Common Good assets are not held “in trust”, at least in any legal sense. Legally they are owned by the Local Authority.

Ownership of Common Good assets was transferred from the former burghs to Local Authorities by the Local Government (Scotland) Act 1973. This is the primary legislation relating to Common Good although the overall legal position is largely derived from case law.

Two conditions of the ’73 act were that Common Good assets be accounted for separately and that their use must “have regard to the interests of the inhabitants of the area to which the common good formerly related”. Subject to those provisions LA’s have wide discretion as to how such funds can be used.

Since LA’s have a general duty of care to act in the interests of and for the best value to the public the distinction in use between Common Good and general assets isn’t all that significant for day to day purposes. However the distinction is important should an Authority wish to alienate (change the use of) or dispose of a Common Good asset. Two problems arise.

Firstly the records regarding Common Good assets are incomplete. That’s not to say assets are missing or unaccounted for but rather some are counted as general assets rather than Common Good. This is partly due to inadequacies in the historical records. Current Local Authorities inherited ownership from their predecessors. Errors and omissions were inherited too. This is compounded by the case law determining what is and isn’t Common Good.

The legal ruling in question is Ruthin Castle in 1944. The judgment established that any asset not acquired for a statutory purpose was by default Common Good and, in the absence of any contradictory decision, this remains the legal position. However this isn’t reflected in the varying custom and practice of recording Common Good assets both before and after the ruling. As such the historical record passed down is a poor guide to what actually is Common Good.

Whilst the Ruthin Castle judgement is itself straightforward the implications are more complex. Assets, as well as statutory powers, were acquired in a piecemeal fashion over a considerable period of time particularly in the 19th century. Establishing the circumstances of every acquisition is itself reliant, at least in part, on the historical record that has already been found wanting. In many instances the issue might require to be resolved by a court ruling, something that might also be necessary to resolve the second problem relating to Common Good status; the differing classification of alienable and inalienable.

In some ways this may be a more important distinction than Common Good or not, at least when dealing with a change of use or disposal, as the practical implications are very different. With an alienable asset a Local Authority will have considerable freedom of action. In contrast they’re likely to be severely constrained with an inalienable asset.

However, whilst case law has long established a difference between alienable and inalienable Common Good assets the distinction is not clear-cut. In the absence of a simple test the matter is probably best left for the courts to decide on an asset-by-asset basis. There is provision for this in the 1973 act.

The Local Government (Scotland) Act 1973 contains the following in Section 75;

(2) Where a local authority desires to dispose of land forming part of the common good with respect to land to which a question arises as to the right to alienate, they may apply to the Court of Session or the Sherrif to authorise them to dispose of land, and the Court or Sherrif 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 entitiled to dispose of land accordingly.

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

There is also more recent legislation that might alter how Common Good assets may be used. The Local Government in Scotland Act 2003 states;

“A local authority has power to do anything which it considers is likely to promote or improve the well-being of-

(a) its area and persons within that area; or
(b) either of those.”

That gives Local Authorities greater freedom and discretion in how they operate and, although it would require to be tested in the courts, may extend to the administration of their common good assets. Whilst it is unlikely to overide earlier statutory provisions such as the '73 act it may well overide earlier case law.

seanie · Post by **seanie** » 10 May 2007, 00:11

So where does leave us when it comes to Portobello Park?

Well first off it’s certainly not held in trust. It was bought and paid for by the then Burgh in 1898 so it is now owned by City of Edinburgh Council. The feu condition on its use has lapsed due to the abolition of feudal tenure but its use as public park could be an impediment to the proposed school relocation if the land is Common Good.

As I understand it the land is not, nor has it ever been, accounted as a Common Good asset. However that, in itself, means very little. Those that bought it may have had different ideas on the Common Good from their Lordships 50 years later, but their Lordships’ opinions count more. The key question is whether the land was bought using statutory powers.

Did such powers exist in 1898?

Yes.

The Burgh Police (Scotland) Act 1892 ( Section 307) allowed for the statutory acquisition of land for “pleasure grounds or places of public resort or recreation.”

However I confess I don’t know if that would’ve been applicable in this instance. Unfortunately I don’t yet have a copy of the Burgh Police (Scotland) Act 1892 handy. And even if applicable it might not have been applied.

Herein lies a problem.

It would certainly seem that by the end of the 19th century, and really from mid-century on, there were a plethora of acts giving statutory powers to the various burghs. Sorting out the context of each acquisition is a task in itself.

But the problem with Portobello Park is that public recreation space, whilst traditionally acquired for Common Good purposes, could also (by the late 19th century at least) be acquired by statutory powers.

So determining the status of the land really depends on a close examination of the circumstances of its acquisition. Whilst “best practice” was to cite the relevant legislation in the deeds when purchased, that “best practice” was not obligatory.

As Andrew Ferguson writes:

“…a very wide range of statutory powers existed for acquisition of property, particularly from the late nineteenth century onwards. Proving what purpose land was acquired for, of course, will not always be straightforward over a hundred years on. The best case scenario is that the burgh in acquiring the property specifically narrated the relevant legislation, following the practice commented on with approval by Hutton in his commentary on the 1947 Act.

In the absence of such an express declaration in the title, the modern-day conveyancer is left with the unenviable task of unearthing some type of evidence from ancient minutes or correspondence around the time of the purchase….

…More extreme difficulties of proof will arise, of course, in relation to the types of statutory purpose which could also be said to be common good purposes, such as the provision of public recreation spaces, and there the burden of proof might be said to shift towards showing that the property had not simply fallen into that public use rather than having been specifically acquired under statutory powers for that purpose.”

Andrew C Ferguson , Common Good Law, Avizandum Publishing Ltd, 2006, p 82-83

The last consideration seems to suggest, perhaps counter-intuitively, that the lapsed feu condition on Portobello Park might be evidence against, rather than for, the land being Common Good.

Poppy · Post by **Poppy** » 10 May 2007, 07:20

Seanie, the land was bought by the Provost, Magistrates &c of the City of Edinburgh. Don't know how much of a difference that makes?

It was part of the deal to absorb Portobello into Edinburgh from what I can gather.

seanie · Post by **seanie** » 10 May 2007, 17:23

I don't think it makes mush odds which burgh bought it since (with the odd exception) all former burgh property, common good and otherwise, would've been transferred into the ownership of the Local Authority in line with the '73 Act.

Porty · Post by **Porty** » 08 Aug 2007, 02:03

Admin: post has been moderated.

Seriously tho'; has there been any update on the common good issue, do we expect any announcements, how is the fund raising for the QC going?

Epykat · Post by **Epykat** » 08 Aug 2007, 21:30

Note Porty posting time. Were you a bit tired, emotional and getting nostalgic for the old days of High School argument?

Porty · Post by **Porty** » 08 Aug 2007, 22:05

I wasnt tired and emotional at all. Jet lag,

seanie · Post by **seanie** » 19 Aug 2007, 10:49

The Education Depatment's Rationalisation and Development programme

Maria · Post by **Maria** » 19 Aug 2007, 12:12

I fear that the closure of Castlebrae will put even more pressure on pupil numbers at PHS and Holy Rood. I know the intention is to bus the Castlebrae pupils to Liberton, but I suspect that parents may have different ideas

seanie · Post by **seanie** » 19 Aug 2007, 12:37

The report puts forward two options for Castlebrae, either permanent closure or running it as an annexe of PHS or Liberton until a new school was built as part of the planned regeneration. An architect for the new school was only selected a few weeks ago and it's a central part of the redevelopment plans so they might prefer that option. On the other hand the current roll is less than 300 which is extremely small for a secondary school.

Maria · Post by **Maria** » 19 Aug 2007, 13:33

seanie wrote:The report puts forward two options for Castlebrae, either permanent closure or running it as an annexe of PHS or Liberton until a new school was built as part of the planned regeneration. An architect for the new school was only selected a few weeks ago and it's a central part of the redevelopment plans so they might prefer that option. On the other hand the current roll is less than 300 which is extremely small for a secondary school.

Ah! I thought the new school for Craigmillar was being shelved. That'll teach me to just read the E N

Among the schools targeted for closure is Craigmillar High, while plans to build a new £30m Castlebrae Community High School by 2009 face being scrapped, as the existing school has the lowest occupancy rate of any secondary in the Capital, at just 41 per cent. Instead, pupils will be bussed to Liberton High

Guess I'd better read your link Seanie