New Portobello High School - PPAG win legal appeal

[Epykat]

If I was trying to disassociate myself from anybody it wouldn't be them.

[Betty Windsor]

If there were a rebuild on the existing site presumably the relatively new gym, at least, would remain in its current form. Having been trawling the internet looking at tower refurbs, I think that it's worth looking at more seriously. I also like the Commander's ideas and would like to know more about potential cost. Presumably building methods are like everything else constantly changing and improving.
I believe most people could live with temporary structures going up in the park if a decant was necessary. Once they were done with it they could turn it into a really great space and maybe even level the pitches and put in a playpark area. The usage, or lack of would then be addressed, also kids from high school could use GRASS pitches to play rugby/football/hockey within walking distance.
Another advantage of the refurb option is that it is significantly cheaper and would leave a lot more money in the pot to be spent on the other decrepit schools needing fixed up/ re-built around the city. Maybe we all need to see "the bigger picture" here.

[Bob Jefferson]

Epykat, so how would you describe your relationship with PPAG then? You don't support them apparently. And yet you do seem to share their view that the school shouldn't be built on the park. So I'm understandably confused. Perhaps you could elucidate?

[geofflynn]

The following is what's known as a contemporary account of proceedings from tonight's meeting. It's not official, like, nor intended to be so:-

Planning way forward meeting, Portobello Town Hall

Andy Wightman

Been working on common good issues for last six years

2005/6 Common Good Land in Scotland

PPAG approached AW in 2006. Provided some advice to them. His involvement was rekindled at the stage of the appeal.

signed petition to drop appeal

Then CofS decision

Still don't have a view on whether school should be built on the park. Today, it's not lawful for the council to appropriate the land to build a school

Burghs of Scotland were added to in the 19th century. CG land is all land which is held by the burghs, land not acquired by statute.

1491 Common Good act is for the beneift of the town. CG funds includ paintings and money and furniture. CG fund in Edinburgh was used to acquire land in which the New Town was built.

1975 all town councils were abolished. All was left were regional. Common land was subsumed in places. City of Edinburgh has two common good funds and one is combined burgh of Edinburgh, Portobello and Leith

My view on CG land is that local communities should be given back control. Arguably that's the case in Edinburgh because one fund is managed by CEC.

The courts have never actually ruled on whether it was common good land or not.

The people should have the final say on how the CG land is used

The present legal situation is unsatisfactory because the council could sell the park if they got the court's approval.

South Lanarkshire council built a school on CG land.

It is the people of Portobello who decide how the park is used. If they do want a school then it should be built.

Has there ever been an opinion poll or referendum.

1991 National Galleries needed an act of parliament to build their new cafe.

It's up to the people of portobello what they want to do. Perhaps it is time to come up with a series of propositions and see what the people actually think.


Legal options are:-

Private Act of Parliament. Council would draft act. Scottish Parliament would vote it through or not. Could be done in six months.

Legal appeal route: appealing to the Supreme Court

Private Members' Bill: not useful because slim chance of getting into Law

Community Empowerment thing going through consultation. Closes next week. Is it possible to put something into community empowerment to allow community . Might take two years

Extension so 2003 Act in wellbeing powers: Nothing specifically in it which includes the right appropriate land.

Sell the land with permission of the court. eg sell it to a trust and lease back to council for 175 years.


Conclusions:-

Council research whether land is CG and
Assert it is not common good land and start build
Pursue disposal to a trust
Put down marker by appealing to Supreme Court
Ask Sheriff Court to approve sale of land to Trust, but it would assume that land was common good
Suspend declaration of Jubilee Status

Option 1: Ask Sheriff Court to rule whether land is common good and, if so, sell it to the public trust

Option 2: Private Act of Parliament to allow school build

Option 3: Hold local referendum to ask people of portobello what do with the land

[tufty]

usage, or lack of

Thank you for your honesty, better late than never.

[Betty Windsor]

Oh, one other thing. One PPAG supporter argued that if there was to be a referendum it should be Edinburgh wide. Er isn't this the same group where a number of its members went unchallenged when arguing that only those born in Porty should have a say in the issue. Oh how times change.

I am astonished that anyone has ever suggested that only people born in Porty should have a say in the issue. Are you saying this was PPAG? This is the first time I've heard that particular accusation and am finding it hard to believe.
As far as a referendum is concerned I don't imagine too many Edinburgh council tax payers would be overly keen to fund a referendum on an issue that they are probably only interested in in terms of how much it is costing CEC. Even if you were to limit it to the catchment area, any idea what the costs involved in such a process would be? Also who would decide what the question would be?

[tufty]

usage, or lack of

Thank you for your honesty, better late than never.

[Betty Windsor]

usage, or lack of

Thank you for your honesty, better late than never.

I am well aware that the park has been underused of late, especially since the council dug it up for the archeological dig and didn't bother to fill in the holes. Also when they stopped taking bookings for the weekend football. Oh yes and when they stopped cutting the grass.
They were essentially used as pitches which I'm sure you are probably aware. Such a shame that Joppa United had to disband and Towerbank home games stopped being played there.

[rmolehusband]

I believe most people could live with temporary structures going up in the park if a decant was necessary.

Never mind the decant, most people could live with building the new school on park. In fact, more than just living with it, most people actively support the idea.

The point is that if it is illegal to build a new school on the park then it would also be illegal to build a decant school. The council currently can't appropriate the land, not for 100 years, not for 2 years.

[Pal of Porty]

Betty Windsor said, "...Such a shame that Joppa United had to disband..."

Yes it was a shame but you know as well as I do that it was not because of Portobello Park.

[Scoop]

Commander- your idea is starting to come together. Please could you draw us a skip load of gold bullion and we can get to work.

Last night I asked what the budget was for a new school and was told that it depended on the building. We were asked to come up with ideas with no set figure to work with. We were asked if the delay and cost would be acceptable should the council appeal the recent decision. I asked how much that would likely cost and how long would the delay be. The answer was they didn't know. What a waste of everyone's time.

[Pal of Porty]

PPAG have been about delay from the outset of this process but now that they have found favour in the latest judgement, they all of a sudden seem to be in an almighty hurry to try and get this decision ‘accepted’ in the sense that the community and ‘powers that be’ will just move on to another option. A typical example of this attempt at agenda shift is PPAG’s acceptance, no indeed offer, that Portacabins would be welcome on Portobello Park to house a decant for an on-site rebuild of PHS. Furthermore, their view that the Court decision should just be accepted, in direct contradiction to the way they did not accept the first decision, rides roughshod over their previous cries of freedom and the right of appeal. Those in favour of building the school in the Park still have several weeks in which to exercise their right to mark an appeal should this be deemed to be an appropriate step to take.

[Pal of Porty]

There is absolutely nothing, 'Positive Porty' about a refurb of the existing site. In my opinion it is the worst of all options available and an absolute travesty to perpetuate the mistakes of the last 50 years onto children and staff for the next 50 years.

[Epykat]

Furthermore, their view that the Court decision should just be accepted, in direct contradiction to the way they did not accept the first decision, rides roughshod over their previous cries of freedom and the right of appeal. Those in favour of building the school in the Park still have several weeks in which to exercise their right to mark an appeal should this be deemed to be an appropriate step to take.

I'm sure the PFANS poster campaign was along the lines of Drop the Appeal, End the Delay and Give us what we want NOW wasn't it? Implying that parents weren't prepared to wait any longer for a new school. Encouraging the Council to appeal the appeal (which, is their right of course) is only going to cause more delay. You could always get a black marker and change the posters in a recycling spirit I suppose.

[Epykat]

There is absolutely nothing, 'Positive Porty' about a refurb of the existing site. In my opinion it is the worst of all options available and an absolute travesty to perpetuate the mistakes of the last 50 years onto children and staff for the next 50 years.

What mistakes would that be? The fact that a school for 2000 kids was built on a smallish site and has served the community extremely well for almost 50 years? Could there maybe be a wee bit snobbery creeping in here in a 'schemey tower block' kind of way?

[rathbone]

There is absolutely nothing, 'Positive Porty' about a refurb of the existing site. In my opinion it is the worst of all options available and an absolute travesty to perpetuate the mistakes of the last 50 years onto children and staff for the next 50 years.

As far as I can see the 'mistakes' of the last 50 years were not the building, but the lack of maintenance and the way it was run. When I was there (1964-67) it was at full capacity and worked really well as a school.

Personally I wouldn't dismiss out of hand the suggestion of refurbishing it. Loads of buildings have been retro-fitted to bring them up to modern standards, and usually at a lot less cost than building from scratch.

If everybody is hunting for 'Plan B' then it is short sighted to keep dismissing every possible alternative to building on the park, however strongly you may be attached to that idea

[Pal of Porty]

Sorry Rathbone I can only post on Quick reply due to technical problem.

I too attended Porty High and was actually a pupil when the School appeared in the Guiness Book of Records with a roll in excess of 2000 pupils! (the annexe was included then). I agree in principle with your comment of short sightedness but in this instance I just cannot emphasise enough what a backword step refurbushment would be in my opinion - it is not a Plan B for me. What was right for us back then is not necessarily right for educational needs of today. A visit to one of the new schools such as Tynecastle just brought home to me just how far off the mark Porty is and would be.

[Epykat]

Imagine the scenario that after every attempt is made by the Council and every single, solitary avenue to build on the golfie has been explored and that there is just no way, ever, that it's going to happen and your ONLY option is a Plan B - what is your Plan B?

[portygeoff]

Re Only those born in Porty being allowed to have a view.

Dear Betty, the statement was discussed on the other forum. I was actually named and when I said this was outrageous and would be considered racist if I was black I was threatened with with the police and their partner had a go at me in a local pub for challenging this view. Very nasty. I did highlight this on the PPAG FB site but it was deleted and I was blocked!

As for the costs, the difference between going through a long protracted period of legal action verses a referendum and a parliamentary bill is probably where they are coming from. Personally I would prefer a referendum for all of Porty rather than the catchment area or Edinburgh. The Park was purchased for the benefit of the people of Portobello, so they should decide.

[Pal of Porty]

I never said I did not have a Plan B - just that I am totally against refurbishment. In saying that however, I am not a Plan B type of guy (not saying that is a good thing) - all the options I see available are different ways to try and get the school on the park. I think this will happen.

[portygeoff]

I thought that a Parliamentary Bill was being proposed as a Plan B

[Porty]

I'm with PoP- PPAG want this over, now. Sorry guys, there is a tremendous will to get this school on the park, I've never seen anything quite like it. Gareth Malone couldn't get the fat lady to sing on this one, PPAG. The righteous will prevail.

Plan B- I'm with Geof. If we do get to the scenario Epykat depicts, we will have to consult with the community- At this stage its only PPAG who are really interested in Plan B- they've got the wind up them.

[Snow White]

... and the wind in them, that's for sure!

[Pal of Porty]

portygeoff" said, "I thought that a Parliamentary Bill was being proposed as a Plan B"

This to me is just another possibility of fulfilling Plan A - there is nothing B about it!

[Pal of Porty]

Epy - I am just having a quick read through when I have no customers (working today) and I have just seen this:

"Could there maybe be a wee bit snobbery creeping in here in a 'schemey tower block' kind of way?

Come on, you are much better than that.

[Porty]

Desperate times.

[Porty]

Anyhoo.......on the subject of a Plan B.

On September 19/12 Commander114 announced: "There are plenty of alternatives available".

He then went to quite a bit of effort to produce a schematic of his "Railway Children" idea. It doesn't seem like there's much appetite for that one, none in fact.

I'm keen to learn about a few of the plentiful, perhaps 3 or 4?

At this stage we don't need illustrations, conceptual will do. If it turns out that one or two of his alterantives have legs, we could ask for a mock up.

[Sceptic]

How many posters have actual experience of refurbishing a 1960s school? Inside and out, scaffolding surrounding the building, who knows what you will find when the trunking is opened? Asbestos? Probably. It was used in the 1960s to lag hot water amd heating pipes. It has been found in other school buildings of similar age. Cue men in white suits and spiraling costs.The tower of PHS will need stripped virtually to bare metal and reconstructed, doing this for an eight storey building?
The costs involved are mich higher for refurbishment as all resouces in the school will need to be moved to.........where? Where do you move 1500 pupils asnd staff, without distubance to coursework? A place easily accessable for all of the catchment? Castlebrae? It has hardly room for much more than it's present population. Build a temporary school? How much would that cost and where would you site it?
There was only one school refurbished under PPI, only one, the reason why was that the problems it created, the costs involved and the upset to pupil courses precluded this being tried again. Every school under PPI since has been a newbuild. For those who say the present site is large enough, do not under stand as any new building will never be eight soreys high.
Building on stilts over raiways might well be possible, but it would show on the horizon cutting out light for Argyll Crescent and surrounds and it is a preservation area.
Sorry to say, the park is the only feasible option the Council has in order to meet size, location and costs.

[rathbone]

How many posters have actual experience of refurbishing a 1960s school?

Me for one. I have been a practising architect for over 40 years. For 14 of those I was the Director of a local authority architects department and have worked on the refurbishment of a number of schools, as well as other buildings. From 1989 to 2004 I was an adviser to both the British Government and the European Parliament and involved with The Commission for Architecture and the Built Environment.

You are right to have reservations, but you will find that most of the issues you are raising have been encountered, and overcome in the past.

There are, of course, many buildings that have provided poor teaching and learning environments for their schools since the day they were opened. Like Portobello High most were built during the mid-20th century boom in school provision. However, there are few of even these that cannot be comprehensively transformed to provide better schools and address the shortcomings of the original.

People often have low expectations when presented with the option of a refurbished, adapted or extended building. They will have witnessed the incremental changes through poor maintenance, repair or changes in legislation that gradually erode whatever positive qualities the original buildings may have had. That is precisely what happened in this case. It’s not the fault of the building and does not therefore make the building a bad one. I can provide you with examples here and abroad which have been brought up to date, some with the students successfully staying in the building while the work was done in phases. Others where the school chose to decant. As I said in an earlier post, this can usually be done at a lower cost than new build.

I find it strange that people assume that a new school will somehow be intrinsically superior to a refurbished one. There are many buildings that have been transformed to provide benefits that could never be achieved through new build. It is not the school, but the teaching that makes it a success.

Try to keep an open mind

[Chas]

How many posters have actual experience of refurbishing a 1960s school?

Me for one.

OK, so it is a realistic Plan B…

[Epykat]

Epycat said : "And what exactly is this 'a school for the 21st Century'?"

Well I would have thought for a start it would include 21st century technology, science and music labs.

All of which the current school has.

There seems to have been some myth perpetrated that the kids at PHS are sitting at wooden desks with inkwells or chalk boards dodging falling debris and low flying birds and being tossed around like a fishing boat in a tidal wave on the 8th floor every time it's a bit breezy, with no technology in sight. It's not true. A lot of work has actually been done in the school in recent years. Lighting, fire doors, windows, heating in some departments, have all be upgraded, a new lift has been installed and there are also lovely, and probably extremely expensive, new curtains in the assembly hall.

Don't throw the baby out with the bathwater here. There are lots of areas of the school that could be used to save money if a refurb was considered. And, as a tax payer, I am incredibly angry about the fact that, should the school be demolished, EVERYTHING in it would be bought new which I consider would be an outrageous waste of money.

Solar panels, wind turbines, sedum roofs - all of these could be incorporated into the plan with a bit of foresight and imagination. Having no Plan B is extremely shortsighted for people who claim to have the interests of the community's children at their core.

[Bob Jefferson]

If PPAG supporters think that we are ready to abandon a school on Portobello Park then they are sadly mistaken. As others have made clear, if there is a Plan B then it is finding ways to achieve Plan A. I went along to the meeting to hear Andy Wightman say that there is now significant doubt as to whether Portobello Park is in fact Common Good land and I wasn't disappointed. Establishing this is the number one priority because if it isn't CG then we don't have a problem. If that doesn't work then we won't be disheartened because there are several other possible routes, all leading to a school on the park. Everything else is merely a distraction.

[Betty Windsor]

Re Only those born in Porty being allowed to have a view.

Dear Betty, the statement was discussed on the other forum. I was actually named and when I said this was outrageous and would be considered racist if I was black I was threatened with with the police and their partner had a go at me in a local pub for challenging this view. Very nasty. I did highlight this on the PPAG FB site but it was deleted and I was blocked!

So Geoff you had an altercation with someone who supports the PPAG campaign. It's a bit disingenuous to make out that is PPAG's view.

Maybe it's time to ask the kids what they think of a refurb. We could ask them what they like about the tower as well. Some of their answers might surprise you.

[neilking]

I went along to the meeting to hear Andy Wightman say that there is now significant doubt as to whether Portobello Park is in fact Common Good land and I wasn't disappointed. Establishing this is the number one priority because if it isn't CG then we don't have a problem.

I know there are people interested in the legal dimension and have done good work in the Council's archives uncovering the Edinburgh Extension Act 1896 (the one which merged Portobello into Edinburgh and mandated the purchase of the park) as well as Council minutes and accounts relating to the purchase of the park.

In light of seeing snapshots (literally) of that material and Andy Wightman saying at the public meeting that the park was "arguably" not common good, I was asked what my take as a lawyer on that question was.

From what I've seen (and assuming there’s no other evidence), I'd be about 90-95% certain the park is not CG. This is due to the statutory nature of the background to its acquisition.

What is the 5-10% room for doubt? It’s these words “dedicate … for public use” in s.74 of the Extension Act. These are words commonly seen in the context of inalienable CG. However, it’s my firm belief that dedication is an indicator of whether land which is CG is inalienable or not. It’s not an indicator of whether the land is CG in the first place.

I just wish s.74 of the Extension Act had said something as simple as “The Corporation shall exercise its powers under s.64 above [or the Public Parks Act 1878] to buy a public park suitable for Portobello.” That would have been a straight exercise of statutory powers so not CG, end of.

The other thing that concerns me (and this is a question of fact rather than legal interpretation) is that these accounts didn’t appear to allocate expenditure to particular accounts or funds. In other words, we still don’t know that the £25k price of the park didn’t come out the CG fund. If the Council can produce evidence that it did, then the game’s a bogey. We need someone more knowledgeable about Council archives than me to pronounce on that.

What I would say with total conviction is that there’s nothing I’ve seen that makes it a slam dunk that the park is CG.

I'm all in favour of lawyers cutting to the chase and not wasting people's time and money with hopeless arguments but I can't help thinking (hindsight a marvellous thing, of course!) the Council's lawyers were being pretty cavalier when they threw away the argument that the park isn't CG!

There is also the legal argument that inalienable CG can be made alienable (i.e. can be appropriated to other uses) if the Council provides alternative facilities elsewhere. This was highlighted in an opinion by Professor Rennie of Glasgow University about use of an undoubtedly ICG park in Wick for a school which is available here http://www.highland.gov.uk/NR/rdonlyres ... ldpark.pdf I also can't understand why the Council's lawyers didn't run this argument either. They seem to have had a tunnel vision on "it doesn't matter if it's ICG because we can do it anyway".

In short, unless the Council can produce other evidence which trumps what has been discovered in the archives, there seem to me to be some entirely credible arguments to run at an appeal to the Supreme Court. That is if it's legally possible to "unconcede" the CG status. That’s not my area of the law so I don’t know the answer to that. (Maybe if the Council volunteered to pay for all PPAG's legal fees in the SC and both rounds in the CoS no matter what the outcome??)

If anyone disagrees or has any more questions, then just ask or PM me.

Neil

[wangi]

The other thing that concerns me (and this is a question of fact rather than legal interpretation) is that these accounts didn’t appear to allocate expenditure to particular accounts or funds. In other words, we still don’t know that the £25k price of the park didn’t come out the CG fund. If the Council can produce evidence that it did, then the game’s a bogey. We need someone more knowledgeable about Council archives than me to pronounce on that.

Neil, I believe the account books for both the "City of Edinburgh Police Accounts" (police here not being police in our understanding today) and the Common Good accounts were checked. The £25k was in the police accounts, not the common good ones. Will confirm that.

L/