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(v) Remedy
[43] In the result we consider that the petitioners are, at this stage, entitled to:
(i) Declarator that the Council have no power, under the 1973 Act or otherwise, to appropriate for use as a school any part of the inalienable common good land at Portobello Park; and
(ii) Reduction, as ultra vires, of the Council's decision of 26 April 2012 insofar as relating to the appropriation of inalienable common good land at Portobello Park for use as the site of the new Portobello High School and associated community facilities.
In our view, the circumstances of this case fall well short of the exceptional character which has, in rare cases such as Grahame v Magistrates of Kirkcaldy, been held to justify the withholding of legal remedies to which a party is otherwise entitled. And although the matter was not fully argued before us, the present dispute would also appear to fall outwith the scope of any relevant jurisdiction of the Lands Tribunal for Scotland under the Title Conditions (Scotland) Act 2003. Thus, regardless of the Council's statutory powers of appropriation, an unresolved difficulty would be the continued existence of the title restriction quoted at paragraph [2] of this opinion.
Conclusion
[44] For the reasons given above, we shall allow the reclaiming motion; recall the interlocutor of the Lord Ordinary dated 7 March 2012; repel the respondents' first, second, third, fourth and eighth pleas-in-law; sustain the petitioners' first, second, and third pleas-in-law; and grant decrees of declarator and reduction as sought in the petition at statement 4(a), (e) and (f).
The children of Portobello have lost.Franck wrote:Well, who won?
wangi wrote:PPAG have won their legal appeal, see http://www.scotcourts.gov.uk/opinions/2012CSIH69.html...
(v) Remedy
[43] In the result we consider that the petitioners are, at this stage, entitled to:
(i) Declarator that the Council have no power, under the 1973 Act or otherwise, to appropriate for use as a school any part of the inalienable common good land at Portobello Park; and
(ii) Reduction, as ultra vires, of the Council's decision of 26 April 2012 insofar as relating to the appropriation of inalienable common good land at Portobello Park for use as the site of the new Portobello High School and associated community facilities.
In our view, the circumstances of this case fall well short of the exceptional character which has, in rare cases such as Grahame v Magistrates of Kirkcaldy, been held to justify the withholding of legal remedies to which a party is otherwise entitled. And although the matter was not fully argued before us, the present dispute would also appear to fall outwith the scope of any relevant jurisdiction of the Lands Tribunal for Scotland under the Title Conditions (Scotland) Act 2003. Thus, regardless of the Council's statutory powers of appropriation, an unresolved difficulty would be the continued existence of the title restriction quoted at paragraph [2] of this opinion.
Conclusion
[44] For the reasons given above, we shall allow the reclaiming motion; recall the interlocutor of the Lord Ordinary dated 7 March 2012; repel the respondents' first, second, third, fourth and eighth pleas-in-law; sustain the petitioners' first, second, and third pleas-in-law; and grant decrees of declarator and reduction as sought in the petition at statement 4(a), (e) and (f).
Not good news.rmolehusband wrote:The children of Portobello have lost.Franck wrote:Well, who won?
Could not agree more. This is a sad day for Portobello kids current and future generations. Their educations and futures have been sacrificed to allow some NIMBYs to maintain a leafy outlook from their windows. It is a travesty!portygeoff wrote:A loss for the children of Portobello and a victory for some small minded NIMBY's.
Well, unless the council has a trick up its sleeve, it is indeed back to the drawing board. However, lets keep the legal decison in context.atanabalan wrote:The Council didn't have the right to try and put the new school there.
Maureen Child wrote:Dear All
FYI - see below. Devastating for Portobello!
Personally, I have a Plan B and will be discussing various options with colleagues this afternoon after we have absorbed this devastating and totally unexpected news.
We do need to get together as a whole community, and decide what is the best way forward..
Maureen
also at http://www.edinburgh.gov.uk/news/articl ... urt_appealKelly Murphy wrote:Subject: The City of Edinburgh Council - Reaction to ruling on new Portbello High School court appeal
The Court of Session has issued a judgement today, 12 September 2012 in relation to the case brought against the City of Edinburgh Council by Portobello Park Action Group Association.
Councillor Paul Godzik, Convener of Education, Children and Families, said; “We are surprised and extremely disappointed with today’s decision and I am sure the vast majority of the local community will share our disappointment. There remains a compelling argument for the new school. We are now seeking legal advice on our next steps.”
Notes to editors;
The judgement can be found here;
http://www.scotcourts.gov.uk/opinions/2012CSIH69.html
Kelly Murphy, Media Officer,
0131 529 4489
kelly.murphy@edinburgh.gov.uk
Do you honestly think they will lose any sleep over it?Porty wrote:Well we always said we would have to abide by the law. All along we've been led to believe we were in the legal right, turns out not. I feel totally devastated for the school, its community and the community at large. Who know where we go from here.
Congratulation to the Connelly's, Cairns, Hawkins, Dunn and the rest of the selfish blurts. You stopped the school- you must be ecstatic. You need to live with it now tho!
I suspect they always have and will continue to sleep well,unlike many of us worrying about the education future for our children. They may find the local community less enthusiastic to support any of their future causes!Do you honestly think they will lose any sleep over it?
MackAskill disappointed by school decision
Commenting on the surprise announcement that an appeal against construction of the new Portobello High School has been accepted by the Court of Session, Edinburgh Eastern MSP Kenny MacAskill said:
“I am surprised and hugely disappointed by this decision, which I think it is fair to say no one was really expecting.
“We’ve currently got over 1,300 kids being educated in a building that is falling down – this just isn’t sustainable.
“While it is unfortunate that the new school is to be built on park grounds, the proposals do of course include a swimming pool and community sports pitches.
“The Council has my full backing in any attempts to further appeal this decision, or to explore alternative options. There currently is no plan B, but whatever happens a new school needs to be constructed as soon as possible.”
rmolehusband wrote:No one can be in any doubt what the majority of Portobello residents and their children want. They council may not have the legal right to try and put the new school there, but given the overwhelming public support for building a new school on that site they clearly have the mandate to do so and it was clearly the right thing to do for the community of Portobello.
Whilst I am as devastated as everyone else, PPAG now have the backing of the Law, saying the Council was wrong all along and that the conditions on which the land was given to the community do not allow it to be built on. There is no one but the Council and their Legal advice to blame, although pointing fingers is useless; even if PPAG had not challenged the appropriation, it would still technically, in law, be wrong to build a school there. So although we may be in the majority, common sense will not prevail.atanabalan wrote:There is no gain to had by pointing fingers at incompetent council staff, poor legal advice, or even PPAG.
MP RESPONDS TO PORTOBELLO HIGH SCHOOL COURT APPEAL RULING
MP for Edinburgh East Sheila Gilmore has responded to the “devastating” news that the judgement in the case brought against the City of Edinburgh Council by Portobello Park Action Group Association. The Court of Session allowed an appeal to prevent the construction of a new high school on the park.
‘Pupils, parents, staff and residents in Portobello are so deeply disappointed with today’s ruling. The news is devastating.
‘However, this is not the time for recriminations.
‘Children and families in Edinburgh East still need a new Portobello High School and it is crucial that it is delivered soon.
‘The City of Edinburgh Council must urgently hold a “summit” of the key members of the community. whatever their views on previous proposals our children deserve urgent action'
I feel that this is about building a new PHS _somewhere_; We have the funding and the will, just not the site.mcdryburn wrote:Very worrying that Kenny MacKaskill is stating there is no plan B.
No I don't.AndyB wrote:Do you honestly think they will lose any sleep over it?Porty wrote:Well we always said we would have to abide by the law. All along we've been led to believe we were in the legal right, turns out not. I feel totally devastated for the school, its community and the community at large. Who know where we go from here.
Congratulation to the Connelly's, Cairns, Hawkins, Dunn and the rest of the selfish blurts. You stopped the school- you must be ecstatic. You need to live with it now tho!
The funding was for a school on Portobello Park. It is not safe to assume the funding will remain, it is extremely unlikely.atanabalan wrote:I feel that this is about building a new PHS _somewhere_; We have the funding and the will, just not the site.mcdryburn wrote:Very worrying that Kenny MacKaskill is stating there is no plan B.
Lady Paton handed down a dramatic decision of the Inner House of the Court of Session today and ruled that Edinburgh Council do not have the legal authority to build a new school on Portobello Park. This has been a long-running saga and has, tragically, caused very deep divisions in Portobello which I will come to in a moment. Briefly the story is as follows.
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In court, I recall one of the Judges asking about this aspect of the case. I was alarmed that he appeared to have missed the feudal nature of the disposition. I'm not an expert by any stretch, but to me, this is a fundamental flaw in today's judgment.andy wightman wrote:http://www.andywightman.com/?p=1562Lady Paton’s ruling misses out an important fact. The 1898 disposition that transferred the park to Royal Burgh of Edinburgh was a feu disposition. The burdens narrated at [2) are therefore feudal burdens. The Abolition of Feudal Tenure (Scotland) Act abolished all feudal burdens unless any Superior took action to preserve them. No application was made in this instance and thus the restrictions are, in my view, irrelevant. I do not think this alters the fundamental decision of the Inner House since the land remains common good land and thus subject to the law on common good.
Finally, let us not forget in this whole sorry tale the young people of Portobello who deserve a new school. It is tragic that this now seems as distant a prospect as it did at the beginning of this saga.
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