New Portobello High School - PPAG win legal appeal

[Mark Cameron]

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”?

I only want that part of the park originally outlined for the school to be used. If that means selling that portion of the park to get this done then so be it.

[Mark Cameron]

Latest from EEN:

http://www.scotsman.com/edinburgh-eveni ... -1-2526745

[fresian]

sounds like the best option

[Pal of Porty]

If we are going to aquire the Park through something like an act of Parliament then I think we should stop pussyfooting around and really build a flagship school that has everything. This means aquiring the entire grassland area including the golf course, which in all honesty, was by far and away the best site for the new PHS in the first place - but thought to be unobtainable. The design could include multi use rugby, hockey and football pitches not to mention major league basketball facilities and a Velododrome for all the future Chris Hoy's. All the dog walkers could then just let their dogs shit in their own back yard much in the same way the PPAG NIMBY's have shit all over Portobello.

[AndyB]

If we are going to aquire the Park through something like an act of Parliament then I think we should stop pussyfooting around and really build a flagship school that has everything. This means aquiring the entire grassland area including the golf course, which in all honesty, was by far and away the best site for the new PHS in the first place - but thought to be unobtainable. The design could include multi use rugby, hockey and football pitches not to mention major league basketball facilities and a Velododrome for all the future Chris Hoy's. All the dog walkers could then just let their dogs shit in their own back yard much in the same way the PPAG NIMBY's have shit all over Portobello.

Don't hold back. Just say it as you see it.

[Pal of Porty]

Don't hold back. Just say it as you see it.

Fed up being nice - it has not got us anywhere. Morals and ethical behaviour have only ever appeared on one side of this argument!

[seashell]

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."

This clause is known as an irritancy clause.
Section 53 of the Abolition of Feudal Tenure (Scotland) Act 2000 discharged all superiors' rights of irritancy on 9 June 2000 regardless of the date of the feu writ.

It's now meaningless.

[Franck]

I reckon the council needs to come up with an alternative pretty fast to satisfy the masses.

They have funding for one large high school but two too small current high schools to build them on.The solution?Redraw the boundaries, build two new schools,help regenerate Craigmillar,lose no common good land, and get on with it instead of waiting for years on The SE to do something.

[mr magnolia]

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."

This clause is known as an irritancy clause.
Section 53 of the Abolition of Feudal Tenure (Scotland) Act 2000 discharged all superiors' rights of irritancy on 9 June 2000 regardless of the date of the feu writ.

It's now meaningless.

you don't have a Secret Section that actually renders meaningless the Primo as well, do you?

[seanie]

That's not a quick option either, and building two schools for 2000 pupils is a damn site more expensive than building one school for 1400.

[wangi]

Well it was my understanding that Abolition of Feudal Tenure got rid of that too...

[Franck]

I reckon the council needs to come up with an alternative pretty fast to satisfy the masses.

They have funding for one large high school but two too small current high schools to build them on.The solution?Redraw the boundaries, build two new schools,help regenerate Craigmillar,lose no common good land, and get on with it instead of waiting for years on The SE to do something.

In fact, the more I look at the catchment maps, it makes sense.Take Brunstane & Parsons Green out of The PHS catchment ( maybe some of Duddingston too) and put them in Castlebrae.

[AndyB]

I reckon the council needs to come up with an alternative pretty fast to satisfy the masses.

They have funding for one large high school but two too small current high schools to build them on.The solution?Redraw the boundaries, build two new schools,help regenerate Craigmillar,lose no common good land, and get on with it instead of waiting for years on The SE to do something.

Craigmillar isn't exactly on the doorstep for most folk who are in the Portobello area. Do we know how many pupils would be split between the 2 schools. What if it turned out that still 1000+ needed to go to PHS after changing the boundaries we would be no further forward. Also a lot of people, for whatever reason, won't want to send their kids to a school in Craigmillar because they would worry it would underachieve just like Castlebrae has going by the statistics. Who is willing to risk their childs education for this? Where would the remaining pupils who are left go while a new PHS is built as I assume you mean a rebuild on the existing site?

[Franck]

I reckon the council needs to come up with an alternative pretty fast to satisfy the masses.

They have funding for one large high school but two too small current high schools to build them on.The solution?Redraw the boundaries, build two new schools,help regenerate Craigmillar,lose no common good land, and get on with it instead of waiting for years on The SE to do something.

Craigmillar isn't exactly on the doorstep for most folk who are in the Portobello area. Do we know how many pupils would be split between the 2 schools. What if it turned out that still 1000+ needed to go to PHS after changing the boundaries we would be no further forward. Also a lot of people, for whatever reason, won't want to send their kids to a school in Craigmillar because they would worry it would underachieve just like Castlebrae has going by the statistics. Who is willing to risk their childs education for this? Where would the remaining pupils who are left go while a new PHS is built as I assume you mean a rebuild on the existing site?

All reasonable points.

As I said in my last post, Brunstane and Parsons Green must take a decent number out of the equation.

A new Castlebrae starts with a clean slate, new teachers,new pupils so the stats are ignored.I'd hope that any kind of snobbery didn't come into it, and anyway, a new school is a new school, and unless people are taking kids out of state schools and into private schools, they don't have that option.

I do mean a rebuild of PHS on the existing site, dunno about where they go, but it's an option I think the council should investigate

[neilking]

A challenge for Kenny MacAskill or Kezia Dugdale.

I've drafted the bill:-


Portobello Bill by Neil F King, on Flickr

Anyway, it's a bill for a public act of parliament (not a private act as has been touted) to amend the Local Government (Scotland) Act 1973 which is the legislation the Court of Session has just decided gives the Council power to dispose of the park (with the consent of the Sheriff Court or Court of Session) but not to appropriate it (i.e. change its use) with such consent. There's no doubt that's what the Act says but it was probably just a drafting error so all that's required now is to insert the words "or appropriate" in to the relevant section of the 1973 Act.

Kezia Dugdale could either introduce this as a private member's bill or Kenny MacAskill being a minister could introduce it as a government bill. Over to you, politicians!

[seanie]

The plans for the Craimillar Community High school were based on a roll of 600 rising to 900 as the area was redeveloped. The new PHS is sized for 1400 to accommodate an expected rise as the next blip in pupil numbers (pupil numbers rise and fall on a cycle going back to the post-war baby boom). So if the plan is redrawing the catchment between the two your looking at two schools of 1000+. A school of 1000+ is only a bit less expensive than a school of 1400. Two schools of 1000+ would be considerably more expensive, especially if you're adding in decant or acquisition costs.

I'm not saying it's not possible, just that it's not a solution in the sense of actually solving the problem.

[tufty]

Craigmillar is a none starter. If you were really going to consider it then you would have to consider any other site within a five mile radius. There's a space behind the station, not any further out of the catchment, but is that not obviously daft.
It's a reaction to suggest it, there are so many other points to consider. The transition and relationship between the primarys and high school is very important. How would children from the primary schools walk or reach the high school if it was built out of catchment, when they do the transition material in P7. There are other events where the pupils form high school visit primary, sports day, christmas or special events, work experience and just relationship building events.
High schools have to be built in the community they serve, otherwise they will never be the school of that community.

[neilking]

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."

This clause is known as an irritancy clause.
Section 53 of the Abolition of Feudal Tenure (Scotland) Act 2000 discharged all superiors' rights of irritancy on 9 June 2000 regardless of the date of the feu writ.

It's now meaningless.

you don't have a Secret Section that actually renders meaningless the Primo as well, do you?

The problem is not the Primo (which was rendered meaningless by Section 17 of the Abolition of Feudal Tenure (Scotland) Act 2000) but the fact that the Council has conceded that the park is inalienable common good which means (as decided by yesterday's court decision) that, while the Council could dispose of it with the consent of the courts, the Council cannot change its use ("appropriate it" in the technical lingo).

There is nothing in the deed linked to above (thanks for adding it BTW, very interesting) which tells us whether the land was conveyed for common good or not. But I assume there must be other evidence not in the public domain which the Council's lawyers advised them means it is CG or else they wouldn't have made that concession to PPAG and the Court.

With all the FOIs there have been over this, has anyone in this forum seen the Council's legal advice which I understand PPAG obtained?

[Franck]

Craigmillar is a none starter. If you were really going to consider it then you would have to consider any other site within a five mile radius. There's a space behind the station, not any further out of the catchment, but is that not obviously daft.
It's a reaction to suggest it, there are so many other points to consider. The transition and relationship between the primarys and high school is very important. How would children from the primary schools walk or reach the high school if it was built out of catchment, when they do the transition material in P7. There are other events where the pupils form high school visit primary, sports day, christmas or special events, work experience and just relationship building events.
High schools have to be built in the community they serve, otherwise they will never be the school of that community.

I don't think it is a non starter, the size of PHS's catchment is massive, from Leith to the start of Mussie and the prom to Jocks Lodge.Not every kid walks to porty.

Reduce the catchment, reduce the size of the schools.

In saying this, I have no personal vested interest in the school, I'm just a resident of Porty who went to the school and want a new school (or school's) available to the current and upcoming crop of East Edina's finest.

[tufty]

The route from the parsons green catchment to castlebrae would take the children along Duddingston rd West, a busy road already congested with High school kids walking towards Holyrood, it's a narrow path and franck is suggesting two way taffic of teenage pedestrians in rush hour.
I gave up on my children going to a new school years ago, but I feel very strongly that the children in the catchment of Portobello High school all deserve the new school, in their catchment area.

[AndyB]

All reasonable points.

As I said in my last post, Brunstane and Parsons Green must take a decent number out of the equation.

A new Castlebrae starts with a clean slate, new teachers,new pupils so the stats are ignored.I'd hope that any kind of snobbery didn't come into it, and anyway, a new school is a new school, and unless people are taking kids out of state schools and into private schools, they don't have that option.

I do mean a rebuild of PHS on the existing site, dunno about where they go, but it's an option I think the council should investigate

It's still the same school from the outset. You might reset the stats but people have memories and a failing school is a failing school in their minds regardless of resetting the stats to zero. I don't think it's unreasonable for people to feel nervous about sending their children to a school that has/had a history of failing regardless if the stats have been reset or not. I dont think has anything to do with snobbery. Also are you saying that children who currently go to PHS and who would change into the redrawn catchment area are then told to go to a different school and separated from the friends they have made and come to rely on?

[wangi]

With all the FOIs there have been over this, has anyone in this forum seen the Council's legal advice which I understand PPAG obtained?

I do not recall seeing the ones released as a result of rulings by the Scottish Information Commissioner - have made some enquiries.

[Franck]

The route from the parsons green catchment to castlebrae would take the children along Duddingston rd West, a busy road already congested with High school kids walking towards Holyrood, it's a narrow path and franck is suggesting two way taffic of teenage pedestrians in rush hour.

Yes I am.Just as my kid walks up Duddingston Road/Duddingston Road West every morning to Holyrood into the oncoming masses of kids going to PHS.She's yet to be lost/beaten/ran over.We live beside Rosefield Park and she walks to Holyrood.As a kid, I lived in Milton Road East and walked to Porty.Some kids walk to school, people need to stop being delicate about it being so close to them.

I'm just looking for alternatives as the length of time it will take to go thru the crap of being allowed to build on the park gets longer each day.

[Franck]

Also are you saying that children who currently go to PHS and who would change into the redrawn catchment area are then told to go to a different school and separated from the friends they have made and come to rely on?

Fair doo's about the snobbery.

I dunno to be honest, but it sounds like the only realistic plan to get new school build sooner rather than never, which is where things stand now.A couple of years of portocabins might be the only way to go.

[AndyB]

The route from the parsons green catchment to castlebrae would take the children along Duddingston rd West, a busy road already congested with High school kids walking towards Holyrood, it's a narrow path and franck is suggesting two way taffic of teenage pedestrians in rush hour.

Yes I am.Just as my kid walks up Duddingston Road/Duddingston Road West every morning to Holyrood into the oncoming masses of kids going to PHS.She's yet to be lost/beaten/ran over.We live beside Rosefield Park and she walks to Holyrood.As a kid, I lived in Milton Road East and walked to Porty.Some kids walk to school, people need to stop being delicate about it being so close to them.

I'm just looking for alternatives as the length of time it will take to go thru the crap of being allowed to build on the park gets longer each day.

Castlebrae to be fair is a bit of a hike. I wouldn't fancy it on a dark winters night as its not exactly a route that I would be happy letting my children walk along alone if they were held up after school for what ever reason.

[tufty]

Franck :
The road that concerns me, as someone who has worked in road safety, is the path from Holyrood to Craigmillar. It enjoys mostly one way taffic as children do not walk towards Craigmillar in the morning. I have walked to work in Craigmillar, along it into the Holyrood kids, there is only pavement on one side of the road and it is difficult to walk into the path of teenagers with no where else to go. all other routes have paths on two sides of the road, including the one you described.
What we need to focus on here is how to reduce the delay of the new school in the area it belongs to. Catchment changes are not as simple as looking at a map, the costs in surveys, consultations and assessments add up in money and time.
We have a solution that needs some clever legal work to facilitate it.

[lg1726]

Franck :
The road that concerns me, as someone who has worked in road safety, is the path from Holyrood to Craigmillar. It enjoys mostly one way taffic as children do not walk towards Craigmillar in the morning. I have walked to work in Craigmillar, along it into the Holyrood kids, there is only pavement on one side of the road and it is difficult to walk into the path of teenagers with no where else to go. all other routes have paths on two sides of the road, including the one you described.
What we need to focus on here is how to reduce the delay of the new school in the area it belongs to. Catchment changes are not as simple as looking at a map, the costs in surveys, consultations and assessments add up in money and time.
We have a solution that needs some clever legal work to facilitate it.

There may well be ways to sort out the legal ramifications around the potential to still build on the park and believe it or not, but a change in the law may well take less time that a change in the catchment boundaries!! Not only do we in Portobello have to lobby our elected representatives for this, but all the like minded parents and future parents of PHS pupils across the entire catchment area. We can also check the likely impact of any protracted delay on the PHS build on the other wave three schools and enlist their support to lobby their elected members, thereby maximising support at the Scottish Parliament with cross Edinburgh MSPs. Also happy to speak to the many MSPs of all parties I have dealings with in the course of the day job, if we have a clear course of action that is!!

[eaveyard]

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.

Why are Maureen and Sheila working tirelessly to organise a public meeting or to start to map the way forward ? We've had more public meetings than any community can stomach - and more consultation. The Council knows what we want - a PHS on Portobello Park. Time spent on organising meetings or mapping anything is time wasted. We want a clear and competent SOLUTION and clear and competent leadership in delivering it. Several good solutions to delivering a school on the park have been suggested here - now we need a strong leader to deliver one of them fast. No more empty rhetoric or procrastination.

[seanie]

Given the situation further delay is inevitable, but any alternative plans mean starting a process from scratch. That means 4-5 years at a minimum. If the school on the park is deliverable, and I'm not in a position to judge, it's still likely to be quicker than any alternative.

[gillian]

I agree Emma, a public meeting will bring together possibly, hundreds of people who all know what the community needs and are all furious that it is not going ahead. The anger and frustration would be so acute that it would take a Herculean effort to have any where near a productive meeting. So many possibilities have been put forward, it now needs some one to step forward and lead the way and investigate these possibilities quickly and efficiently. And then feed back to us, with a clear way forward.

[neilking]

Text of an e-mail I've sent to Kezia Dugdale copied to Kenny MacAskill:-

"Dear Ms Dugdale

I gather there is talk of a private act of parliament to authorise the construction of a new school on Portobello Park in the wake of the Council being blocked by the Court of Session decision.

I personally feel that private acts are effectively saying "change the law for me" whereas the law should only be changed for the benefit of everyone.

Also, it could set a dangerous precedent in that, each time someone comes up against a legal obstacle, they might be tempted to say “Oh well, no problem, we’ll just get a private act of parliament!”

I think there is a preferable solution which avoids these criticisms and is just as simple. It is a public act to amend the general law relating to all common good (not just Portobello Park) to remove the obstacle highlighted by the Court of Session in its recent judgement. In this way no other communities could find themselves thwarted in the way Portobello has and find themselves having to promote private acts.

As I’m sure you know, the nub of the court’s decision was that, the Council having conceded that Portobello Park is inalienable common good, section 75 of the Local Government (Scotland) Act 1973 gives the Council power to dispose of the park if it obtains the consent of the court (which may impose conditions) but not to “appropriate it” – i.e. retain it but change its use (with court consent).

That is indeed what the section says but it must have been a drafting oversight because it seems inconceivable that Parliament intended to provide a mechanism for the disposal of inalienable common good but not for the less extreme step of retaining it but changing its use.

And as someone observed, what could be a more fitting use of common good than its retention by the Council for the building on it of a school for the benefit of the local community?

Hence what I think is required is a very short (public) act to amend section 75 to add in references to appropriation (retention and change of use) alongside the references to disposal. I have drafted a bill and attach it for your use in case you wish to promote it as a private member’s bill. If it would help, I’d be happy to draft an explanatory note and policy memorandum to accompany this bill.

Regards

Neil King
CC. Kenny MacAskill"

[seanie]

The advantage of a private bill, if feasible, is that it doesn't step on anyone elses toes. Bear in mind that every time local authorities and development are mentioned in the same sentence, you soon start hearing accusations of 'brown envelopes'. A general change to make appropriation easier will attract far, far more opposition than a narrow bill based on a particular context.

Also, given that Common Good law is a bit of a murky area anyway, tinkering with the '73 act is unlikely to resolve difficulties; just because you can get permission from the courts doesn't mean they have to give it. The case law will still be relevant.

[seanie]

Also there's been talk of reforming the Common Good quite recently (that came to nothing) and it's hinted as a possibility in the current consultation on the Community Empowerment and Renewal bill. If there is a mind to alter the legal situation on Common Good it's more likely to be subsumed by that.

[neilking]

Hear what your saying seanie, and don't disagree, but my suggestion of a public bill of very narrow scope was an attempt to steer a course between a private bill being seen as special pleading ("If we can change the law so that Porty can have a school, what about the hospital in my constituency ...?" etc.) and the fact that a root and branch reform of Common Good generally might take for ages with consultations etc. and may be controversial. My bill was designed simply to fix the immediate problem with CG which is blocking the school on the park (and in an even handed way that would also fix it for anyone else in the same boat). Point taken about Community Empowerment Bill as well.

Regards the point that you would still need to get court permission under my plan, I hear you on that too but I don't think that would be too much of an obstacle. Note that this would not be a total rehash of all the murky ins and outs of CG, it's more the sheriff just checking that what the Council proposes is not a flagrant abuse of CG and the fact that planning permission exists would be very influential in that regard I think.

BTW, everybody seems to be just assuming Porty Park is CG and the Council conceded this to PPAG but where's the evidence? Have you seen any evidence because I haven't!

[seanie]

Would it fix it though? If you introduce an explicit power to appropriate subject to approval of the courts, that's not an unfettered power to appropriate. Clearly the courts have discretion otherwise they wouldn't be involved. So in what circumstances would they not approve an appropriation?

Would Lady Paton be any more inclined to give the thumbs up?