New Portobello High School - PPAG win legal appeal

[urchaidh]

[wangi]

Neil, got following reply to your draft bill:

Kenny MacAskill SNP ‏@KennyMacAskill

@talkporty its a complex and specialist field of law but I am having it checked out with the experts.

[neilking]

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?

Sean

Bear in mind that Lady P was not ruling on the question "Should there be a school in Portobello Park?" (That's a question for the planning committee and not open to appeal to the courts.)

She (strictly speaking she and two other judges on whose behalf she handed down judgement) was ruling on a much narrower point of order (if you like), namely, "Given that the park is inalienable common good, does the Council have the statutory power in terms of the Local Government (Scotland) Act 1973 to apply to the courts for permission to appropriate it for the school which the planners have decided is a good idea?"

She ruled that it does not. (And I think she was correct, given the wording of the 1973 Act.) At the risk of repeating myself, she was NOT saying "We, the Court of Session overrule the planners and think Porty Park should be kept as a park and not trashed by having a school built on it."

My little homemade draft bill is designed to correct the wording of the 1973 Act so that, if Lady P were asked the question again after it had been amended, she would be obliged to answer, yes, the Council does have power to ask the Courts for permission to appropriate the park.

You ask the question, in what circumstances would the courts not approve the appropriation? At this point I have to say that I'm a property lawyer (retired) rather than a local government lawyer so you have to take my views on this with a pinch of salt. In particular, I don't know what precedents there are on this ref. disposal or how they've been decided. But my hunch from my knowledge of analogous areas of law is that the court's terms of reference on an application for permission to appropriate is not to just second guess the planners.

It's more a question of oversight that the Council are acting in a reasonable way, have carried out due consultation, have planning, have the backing a substantial sector of the local population etc. Also of importance would be that the Council are offering alternative green space elsewhere (this is specifically mentioned in the 1973 Act as it stands regards disposal) and I understand they are in the case of Porty.

To give an example of a prime candidate for refusal, it would be a proposal to flog off a bit of CG for housing development to the highest bidder, in the face of unanimous local opposition, in order to fund something unspecified. Or to appropriate CG for something that didn't need planning permission and was something ridiculous like an "art installation" of the councillors' faces or something like that.

I don't know if that answers your question but as a lawyer I totally sympathise that it's never desirable to be in a situation when you need to make an application to the courts because there's no such thing as an open and shut case.

You probably think my draft bill is too timid and wouldn't it be easier to remove the need for the court application and just have a private act saying there shall be a school in Porty Park, end of?

But my suggestion was designed to be the most minimal change to the law possible to put appropriation on the same footing as disposal, correct an error, no special pleading, don't over-egg cake, open up cans of worms etc. All that in order to make it more politically palatable to timid MSPs - politics the art of the possible and all that.

Hope that helps explain where I was coming from.

Neil

[neilking]

Neil, got following reply to your draft bill:

Kenny MacAskill SNP ‏@KennyMacAskill

@talkporty its a complex and specialist field of law but I am having it checked out with the experts.

Yes, I got a very quick (minutes!) reply from KM as well as follows:-

"Dear Neil

Thanks for this. I am having matters checked out with officials. Obviously as you know it’s not simply the drafting but whether consultation needed and where it can fit in the parliamentary timetable. This though is very helpful and I am grateful for you contacting me.

Kenny MacAskill"

[seanie]

The Council's legal argument was never that they had explicit statutory powers under the 1973 act to appropriate inalienable Common Good land. On the question of such an appropriation the act is indeed silent. It was raised during the case that this could well be an omission in the drafting, but it was not a matter for the courts to resolve.

But the Council's case was firstly that the power derived from existing common law and that the wording of the '73 act should be read in that light. Secondly they argued that that the 2003 Local Government Act gave Local Authorities the power to do whatever to advance well being unless there was an express prohibition. Consequently, since there is no act anywhere saying inalienable Common Good can't be appropriated, the 2003 act grants that power over and above any case law.

[seanie]

I also think you've fundamentally misread the implications of this judgement.

It's not at all a question of the Council having acted in a reasonable way; due consultation, planning, backing of the local population etc. The ruling of the court is that such an appropriation is unlawful. The factors you mention are inconsequential to that.

As is the issue of alternative green space. That may be relevant in the case of a disposal, but since this appropriation isn't considered to be a disposal, it would make no difference.

[neilking]

I also think you've fundamentally misread the implications of this judgement.

It's not at all a question of the Council having acted in a reasonable way; due consultation, planning, backing of the local population etc. The ruling of the court is that such an appropriation is unlawful. The factors you mention are inconsequential to that.

As is the issue of alternative green space. That may be relevant in the case of a disposal, but since this appropriation isn't considered to be a disposal, it would make no difference.

Seanie

First, in response to your first post, you're correct to mention the 2003 Act. In a nutshell, the Council's argument was that that gave it new over-riding powers irrespective of the underlying niceties of common good and appropriation etc. The Court's response was that the 2003 Act didn't go that far.

Second, when I mentioned factors like the Council having acted in a reasonable way; due consultation, planning, backing of the local population etc., I was meaning that these could be relevant to an application to the court for permission to appropriate if the 1973 Act were changed. I agree with you they are totally irrelevant to the court ruling just decided but I wasn't meaning to suggest they were - sorry if I didn't make that clear.

I think alternative green space to replace the space taken up by the school could be relevant to an application for permission to appropriate (though not by itself absolutely conclusive). Note that Lady P quotes with approval (para [24] of the judgement) an earlier case (Waddell) in which the judge equated disposal with appropriation. Whether you get rid of it or build a school on it, the fact is it aint a public park anymore!

Neil

[seanie]

How would your suggested change to the '73 act would make Lady Paton any more amenable should the same proposal come to her again?

[seanie]

And no, the Council weren't simply relying on the 2003 act. They also argued they had the power under Common Law.

[seanie]

And whilst Lady Paton may've approvingly quoted a case equating disposal with appropriation, a central part of the PPAG legal argument, expressed at some length, was that the case didn't involve a disposal. In fact everyone in the first hearing agreed on that. PPAG didn't want it to be a disposal precisely because of the provisions in the '73 act allowing it, and the Council agreed it wasn't because of the precedents of the North and South Lanarkshire case which supported their argument.

[seanie]

Just to expand on that, it was the position of both parties that the appropriation did not constitute a disposal. Only at the very close of the appeal hearing did PPAG's counsel articulate the view that the land would no longer be Common Good; as you say, build a school on it and it's no longer a park.

But if the land would no longer be Common Good it's difficult to see how that could be anything other than an appropriation amounting to disposal. And if it's a disposal you don't need a power to appropriate because there's the explicit power of disposal under the '73 Act.

[lg1726]

So, back to my initial question - can it be sold and built on!??

[seanie]

Yes.

But you need permission from the courts.

Given that the Inner and House looked at the same set of facts and came to diametrically opposite conclusions, how much confidence could you have in applying for permission to dispose?

You'd be as well tossing a coin.

[lg1726]

OK - so that takes us back to an Act of Parliament in order to avoid a court decision and then the preference of a private act versus a public act! However, it does suggest that a build on the park is still a possibility and could still be Plan A, but with a plan B in the hip pocket, just in case!?

[seanie]

All the arguments in favour of the school on the park remain. It's by far the best site of an extremely short list of options. And those inferior alternatives are neither quick nor cost effective.

[neilking]

How would your suggested change to the '73 act would make Lady Paton any more amenable should the same proposal come to her again?

Maybe I'm misunderstanding your question but if by "same proposal" you mean the merits of whether a school should be built in Porty Park, then that hasn't been before Lady P (or any judge) yet.

But if you mean the same legal challenge by PPAG, then the idea is that the Act will have been changed to kick the grounds for challenge out from under them and give the Council explicit statutory power to appropriate. So that couldn't come before Lady P again.

[neilking]

And no, the Council weren't simply relying on the 2003 act. They also argued they had the power under Common Law.

I agree. Didn't intend to suggest otherwise.

[neilking]

And whilst Lady Paton may've approvingly quoted a case equating disposal with appropriation, a central part of the PPAG legal argument, expressed at some length, was that the case didn't involve a disposal. In fact everyone in the first hearing agreed on that. PPAG didn't want it to be a disposal precisely because of the provisions in the '73 act allowing it, and the Council agreed it wasn't because of the precedents of the North and South Lanarkshire case which supported their argument.

I agree that disposal and appropriation are in no way the same thing for the purps of the 73 Act (that of course is the crux of the whole decision by the court). I was meaning that they are similar in the everyday, layman's, plain English sort of way. And pointing out that the judiciary (at least Lady P and previous judge in Waddell case) appear to agree as well.

[lg1726]

All the arguments in favour of the school on the park remain. It's by far the best site of an extremely short list of options. And those inferior alternatives are neither quick nor cost effective.

In which case it seems that there now needs to be some concerted action to manage the process to move this forward and to seek to achieve this desired outcome. Perhaps this is where the skills share concept comes into play to help form a project team with the necessary skills to move this forward. Happy to contribute my skills, but they really only come into play when there is a clear action plan. However, I do have some pretty key contacts who could be useful in helping to pull something together in an advisory capacity!

[neilking]

Yes.

But you need permission from the courts.

Given that the Inner and House looked at the same set of facts and came to diametrically opposite conclusions, how much confidence could you have in applying for permission to dispose?

You'd be as well tossing a coin.

The question that would be put to the courts in seeking the permission is NOT the same question put to them in the previous two rounds.

The previous question was "Does the Council have power to build a school in the park?" (Answer - no). The next question would be a different one, namely, "Now that the law has been changed so that the Council does have power to build the school, do you agree it should go ahead and do so?"

No such thing as an open and shut case but better than a coin toss, I think.

Finally, my suggested bill was just a suggestion for what I thought timid MSPs might feel more comfortable with politically. But I'm not a politician. I can entirely see how a private act simply saying "There shall be a school in Porty Park, end of" with no need for any more court applications would be way superior if you can swing it. You probably know more about politics than I do so if you reckon the private act route is do-able politically speaking, then go for it absolutely.

[lg1726]

Finally, my suggested bill was just a suggestion for what I thought timid MSPs might feel more comfortable with politically.

Not all MSPs are timid, indeed a fair few can be pretty bullish and many few very determined to prove that the outcome of the previous election was not an arbitration. Many are keen to show the electorate that they deserve to be there now and in the future! An act like this might appeal to one or two and remember, with the list system we have 8 MSPs for our area. We need to find one willing to take this on and given the Ministerial position of our constituent MSP that does rather put him in a conflicted position. However, given his email responses he would not oppose it and we could lobby sufficient support from the other ones, (excepting the Green). There is of course the potential knock on effect the delay will have on other Edinburgh schools, extending the potential to draw on for the critical mass of support, both public and political. Happy to elicit views and opinions of previous ministers and/or MSPs around how this could move forward, if there is a will that is.

[mr magnolia]

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?

I had sort of noted to myself that the original deeds seemed to have built in a clear penalty for breaking the rules - you lose the land and it reverts to the original owners. If those rules are suspended but you are still not allowed to break the common good rules, what might the penalty be for breaking those common good rules? What penalty has befallen CEC for having (possibly) broken the roolz regarding common good land elsewhere?
And would all this go away as an issue if indeed the land is NOT common good land, but just a chunk of land owned by the council? That's not been fully tested, I believe, as noted by someone up thread?

[Maria]

Recent letters in the Evening News Portobello protesters have pulled a community apart and Park Nimbys won’t care as Porty is left to wither away

[neilking]

And would all this go away as an issue if indeed the land is NOT common good land, but just a chunk of land owned by the council? That's not been fully tested, I believe, as noted by someone up thread?

Yes it would go away which is why I think the Council owes everyone the reassurance that it had VERY good reasons for conceding to PPAG that the park is CG.

The wording of the deed does not by itself constitute the evidence it's CG. If anything, it suggests it's not (the fact the Council paid a huge price). There must be other evidence. What is it, I wonder ...

[Porty]

I believe the council's reasoning was; it made no difference whether the land was CG or not. They took legal advice, a key part of which was the North and South Lanarkshire cases- there was every reason to believe that permission to build a school on CG land would not by a matter for the court.

Andy Wightman doesn't think it would be sensible to test the CG status of Portobello Park in court and I bow to his experience. It would be remarkable and intruguing if a community were to actively pursue a "non common good" status through the courts.

[mr magnolia]

I think the council were clearly wrong then to think it made no difference if the land is common good, as the court (or one bit of it) seems to think it does.
I'll have to have a look more closely at andywitemans reasoning to understand why it wouldn't be clever to get it clear as to whether it is or isn't common good land, but his interest is in common good land while ours in in high schools. I'd suggest it's a no brainier to test the common good land status, at least by an independent peer review for the council.

[Porty]

I agree Mr M . worst that can happen is confirmation it is CG. There's no downside for us. Andy didn't elaborate .

[seanie]

Did people think the Council were clearly wrong when Lady Dorrian agreed with them?

[seanie]

On the CG status, the land was also acquired under statutory powers, the Edinburgh Extension Act I think, so that's another reason that the CG status is maybe questionable. However I think it may be a little late in the day for that.

[mr magnolia]

Did people think the Council were clearly wrong when Lady Dorrian agreed with them?

They weren't wrong then, but another lot seem to have said that they are. Which they made fairly clear.

And would all this go away as an issue if indeed the land is NOT common good land, but just a chunk of land owned by the council? That's not been fully tested, I believe, as noted by someone up thread?

Yes it would go away which is why I think the Council owes everyone the reassurance that it had VERY good reasons for conceding to PPAG that the park is CG.

The wording of the deed does not by itself constitute the evidence it's CG. If anything, it suggests it's not (the fact the Council paid a huge price). There must be other evidence. What is it, I wonder ...

And this is surely why it may be of interest? And nothing that might help can be late in the day at this stage?

[Sceptic]

We have two opinions, one for, one against. Who is to say which one is correct? If the Couincil wishes, surely there must be a method of referring the difference of opinion to a higher Court? Supreme Court? Why not, I was always anticipating such a move if the appeal had failed.
If not, have the law changed, with a retrospective to cover the present situation. The only other option is to builkd a school outwith Portobell, denying the area it's facilities for Community Activities. Would people travel to Craigmillar? Would people buy a house in the area if their children had to travel some distance to school?

And all to do with property prices, the square root of nothing to do with parkland.

[neilking]

On the CG status, the land was also acquired under statutory powers, the Edinburgh Extension Act I think, so that's another reason that the CG status is maybe questionable.

I agree. Sounds intriguing, have you any more info on this?

However I think it may be a little late in the day for that.

If the Council were to slap a writ on PPAG for a declarator [Scottish legal term for a court order making a legally binding declaration] that Porty Park is not CG, would PPAG have the funding to mount a defence to a third round in court?

I say again, it is critical that the Council reveals what advice it had that the park is CG so that it threw in the towel on this central point. If the park is not CG, then there's no reason the school can't go ahead.

[wangi]

On the CG status, the land was also acquired under statutory powers, the Edinburgh Extension Act I think, so that's another reason that the CG status is maybe questionable.

I agree. Sounds intriguing, have you any more info on this?

The 1896 Edinburgh Extension Act was a private members bill which sought to increase the boundaries of the City of Edinburgh, incorporating the then separate burghs of Leith and Portobello. However it did not happen like that... This was the initial plan:





(please excuse the midnight photo of the map on the wall!)

As it went through the Commons Leith was removed from the extension. I have not seen the text of the act as enacted.

Here are some interesting relevant press clippings:

(The Herald, 09/07/1896)


(The Scotsman, 14/09/1896)


(The Scotsman 15/05/1900)

Click on them for higher resolution.

I say again, it is critical that the Council reveals what advice it had that the park is CG so that it threw in the towel on this central point. If the park is not CG, then there's no reason the school can't go ahead.

I submitted a FOI yesterday: http://www.whatdotheyknow.com/request/p ... ommon_good

L/

[wangi]

I say again, it is critical that the Council reveals what advice it had that the park is CG so that it threw in the towel on this central point. If the park is not CG, then there's no reason the school can't go ahead.

I submitted a FOI yesterday: http://www.whatdotheyknow.com/request/p ... ommon_good

With thanks to Andy Wightman here is a copy of the Joint Opinion of Senior Council for Edinburgh Council which was released in 2008 following 002/2008:


(click for full PDF)

[Maria]

106066822-Portobello-High-School-Public-Meeting.pdf

(98.59 KiB) Downloaded 302 times

Public Meeting
Friday 21st September 6:30pm
Portobello Town Hall

Introduction & Chair by
Rev. Peter Webster, Portobello High School Chaplain

Featured Speaker:
Andy Wightman, Author and Land Rights activist.

This meeting has been organised by the Edinburgh East Labour Party. All local councillors and MSPs, from all parties, have been invited to facilitate table discussions, but this is not a political meeting. It’s an opportunity for the community to map the way ahead.
Conversations will be organised around tables to give everyone the chance to contribute. Participants will be encouraged to leave written & video statements. High school students and primary pupils especially welcome.