New Portobello High School - PPAG win legal appeal

[seanie]

The fact remains that Portobello Park is the only decent site for the school. It's only sensible to look at alternatives, but there are precious few viable ones and they're poor in comparison. Any alternative also means starting a process from scratch so 4-5 years to get a new school assuming things go smoothly. Since there appear to be a variety of possible routes, both legal and legislative, to enable the school to go on the park it's also only sensible to explore them.

[Peter Bradley]

Forgive me Father for it has been some time since my last post.........................I tried, I mean I really tried, we're talking about a serious effort but I just cant keep my inner "Victor Meldrew" in any longer!!

AAAAAAAAAAAAAAAAAAAAARGH - I just dont believe it !

Can someone please contact the BBC comedy unit - this is like watching "Dads Army" meets "In the thick of it" - classic Nimby entertainment - please keep it up folks

cheers PB

[seashell]

And of course, commander, if it turns out that the park is not common good land then it follows that it is not inalienable. In which case the law will permit the school to be built on the park. So I ask you: why not recognise that it may be possible to build on this land, owned by the Council, for a Council-run school? The courts may agree that it never was common good land and overturn the previous ruling. maybe the censoring PPAG-ites will need a rethink and that may be inconvenient for them.

But at the moment nothing is certain and we have to wait and see. To continue your egg analogy, there is no point in counting your chickens before they are hatched. Thre is still a possibility that the school may be built on the most suitable sight - Portobello Park.

[little miss moffat]

It’s inconvenient to find that the law wasn’t really on your side in the case of the Golfie.

Sorry Commander, but after the first court case, did the PPAG accept the decision? Or did they appeal it?

My own personal opinion is that we need to move on - the CEC are looking at the way forward.

[regent]

It’s inconvenient to find that the law wasn’t really on your side in the case of the Golfie.

Sorry Commander, but after the first court case, did the PPAG accept the decision? Or did they appeal it?

My own personal opinion is that we need to move on - the CEC are looking at the way forward.

What are the council doing to find a way forward?

[seanie]

The following letter from the Council was sent out the other day and has been circulated to the cluster primary parent councils.

1952 01a.pdf

(633.78 KiB) Downloaded 830 times

[neilking]

Once a constitution is adopted -and I am assuming here it has been adopted - it must be adhered to and if it is not PPAG may be operating "Ultra Vires"or outwith their powers.

If on appealing the original Court decision they were operating Uirtra Vires them their appeal could be set aside as invalid.

David - an association like PPAG cannot act ultra vires because it's not a "creature of statute" like a local authority is.

The provisions of PPAG's constitution are there to govern matters between its members, not between it and the outside world. To give an example, suppose there was a clause in the constitution saying the association couldn't pursue court actions but the management committee announced it was going to judicially review CEC anyway. Any member would be entitled to interdict the committee from doing that. But now that it's happened, any member who attempted to somehow "undo" the court action that's already taken place would be trumped with the now familiar plea of "mora, taciturnity and acquiescence" - i.e. you sat and watched it happening and didn't lift a finger to stop it, so you're far too late now. And a non-member of PPAG has no right to interfere in its internal affairs.

BTW, I couldn't be bothered to read through the constitution to see if it does contain a clause prohibiting court action. That's because, legally, there's nothing anybody could about it now even if it does.

[regent]

The following letter from the Council was sent out the other day and has been circulated to the cluster primary parent councils.

Thank you! Good to have a timescale of when events may begin to unfold.

[seanie]

They'll be getting advice and opinions on various options and that'll take a while to work through. The report to Council will be available on the 18th, but I don't think it's difficult to guess the main outline of what will be recommended.

[David Robertson]

Once a constitution is adopted -and I am assuming here it has been adopted - it must be adhered to and if it is not PPAG may be operating "Ultra Vires"or outwith their powers.

If on appealing the original Court decision they were operating Uirtra Vires them their appeal could be set aside as invalid.

David - an association like PPAG cannot act ultra vires because it's not a "creature of statute" like a local authority is.

The provisions of PPAG's constitution are there to govern matters between its members, not between it and the outside world. To give an example, suppose there was a clause in the constitution saying the association couldn't pursue court actions but the management committee announced it was going to judicially review CEC anyway. Any member would be entitled to interdict the committee from doing that. But now that it's happened, any member who attempted to somehow "undo" the court action that's already taken place would be trumped with the now familiar plea of "mora, taciturnity and acquiescence" - i.e. you sat and watched it happening and didn't lift a finger to stop it, so you're far too late now. And a non-member of PPAG has no right to interfere in its internal affairs.

BTW, I couldn't be bothered to read through the constitution to see if it does contain a clause prohibiting court action. That's because, legally, there's nothing anybody could about it now even if it does.

I would beg to differ.

I did read it several times.

If you read correctly clause 3 of the Constitution that empowers the "Association" and not the members.

I would doubt any "member" ofthe PPAG would attempt to undue the Court decision, how stupid would that be ?

The Association did not have the power to petition the Court so therefore any decision made by the Court would probably be set aside.

With regards to being too late how can any decision made in a court that is not legally competent be too late ?

[portygeoff]

No idea where the Commander gets all the 'majority' stuff about people being against changes to the law, that's just made up. There are no figures to support that claim. Furthermore laws are always being changed, that's part of the role of Parliament. Every year it sets a legislative programme and set of bills are proposed, some of these are new laws and some are amendments to existing laws. Despite what a number of PPAGers were trying to claim the other Friday, a bill to amend an existing law is not a rare occurrence but a common thing.

Interesting that for the past week the PPAGers have been arguing that we need to move on and act now but when it is mentioned that their recent victory might prove unfounded or be overturned there is once again the talk of the High Court and Europe.

Sniff, sniff...can I smell someones pants on fire?

[David Robertson]

The following letter from the Council was sent out the other day and has been circulated to the cluster primary parent councils.

1952 01a.pdf

What a fob off !

Only CEC could organise a meeting to discuss the matter the day after a statutory period for appeal expires.

I honestly wonder if these preople could get laid in a............

I think the term is invertebrate !

[neilking]

The Association did not have the power to petition the Court so therefore any decision made by the Court would probably be set aside.

Sorry David but I have to disagree with you here. Speaking as a lawyer, I would say there are various legal avenues of attack open to the Council but with all due respect this isn't one of them.

[seanie]

There is another angle to this; that the latest court decision be appealed simply on principle.

The ruling effectively takes the 2003 Local Government Scotland Act and throws it in the bin. They've taken a meaning of 'well being' so narrow that the act is essentially worthless.

Which probably isn't what the Scottish Parliament intended when they passed the act.

One could take the view that the Inner House was maybe being a little bit presumptuous when it choose to ignore the clear intention of legislation passed by the Scottish Parliament.

[seanie]

The following letter from the Council was sent out the other day and has been circulated to the cluster primary parent councils.

1952 01a.pdf

What a fob off !

Only CEC could organise a meeting to discuss the matter the day after a statutory period for appeal expires.

I honestly wonder if these preople could get laid in a............

I think the term is invertebrate !

Council officers have the authority to mark an appeal without prior authority of the full Council. It can just be undertaken as a holding action.

[Porty]

I thi nk its refreshing that the Commander can drop by and tell us to behave on Talkporty. Over on "save porty park" you only have to disagree to get booted out.

As for Epykat being subjected to bullying by the regulars here, erm, she was brought to book by a complete newbie, that's the truth.

I just reported a post over on the Evening news.http://www.scotsman.com/edinburgh-eveni ... -1-2549503

From a John Ferrier, a self confessed "Porty Boy"who claims that in an interview, our very own Sean Watters refered to some school children as pondlife. Apparently Sean said that it would be okay to send Castlebrae kids to liberton "because pondlife get on with pondlife".

What a nice thing to say about one of our community's good guys.

[seanie]

Looking again, the letter even says that an appeal can be lodged prior to the Council meeting.

[David Robertson]

The Association did not have the power to petition the Court so therefore any decision made by the Court would probably be set aside.

Sorry David but I have to disagree with you here. Speaking as a lawyer, I would say there are various legal avenues of attack open to the Council but with all due respect this isn't one of them.

In thar case prey tell them a few as they seem to be lost!

[seanie]

Just because it says John Ferrier on the top of the post, doesn't mean it's been written by a John Ferrier. They're just anonymous comments on the Internet, and don't signify anything of importance.

[Porty]

I know. I suppose there could be two John ferrier's in Portobello, I only know one and he is avery good bloke. I thnk someone's used his name in vein, so its doubly pish.

PPAG are dishing out pelters to the council for revisiting the CG status of the park, no surprise there, but to what end?

When the last investigation took place it was against a background of having had two counsel opinions both of which said it mattered not whether its was CG.

This time around we are gonna get forensic on their ass and it MAY throw up a different conclusion.

So, if the council's fresh investigation confirms that PPAG were correct, then the council did right conceding the point and saving another court battle. Alternatively, if the investigation gives a strong indicator that PP is not CG then PPAG are in an almighty pickle. Not least of which is the stigma of keeping 1400 kids in a failing school for an additional 3,4 or 5 years, for a totally spurious cause.

So why are PPAG not happy with the new investigation?

[wangi]

admin: a large number of posts which I felt did not add to the debate, were overly personal, trolling or rude have been moved to "Sort it out yourselves" (PPAG win legal appeal). I'm not perfect and have spent more than an hour weeding out posts, so apologies if you think your post shouldn't be there, but I feel I was even-handed but I'm not going to review them again!

[wangi]

Sorry David but I have to disagree with you here. Speaking as a lawyer, I would say there are various legal avenues of attack open to the Council but with all due respect this isn't one of them.

I'd agree, and I also seem to remember that the legal action was actually in the names of the PPAG office bearers individually rather than the organisation (regardless that is says PPAG on the court docs)

[seanie]

Not all the Office Bearers...

[Sceptic]

As one poster said, it's getting like a soap opera.

What do we have? Local Authority incompetence? Action Groups whose motives, to some, are suspect? Local worthies desperate for action on a much needed development, some might say, at any cost? Children caught in the middle of it all?
tempers boiling over, name calling and counter name calling?

How do we solve this? We need someone, impartial, who can research the history and background and come up with one solution. The only trouble is we needed this years ago.

Why write this? I am watching "Pie in the Sky"

Addendum, Sunday Morning, isn't it quiet, all of a sudden!

[Porty]

From february 4th 2006- almost 7 years ago, think this was one Seanies first posts:

I confess I know absolutely nothing about the condition of PHS.

But I'll make some observations from my experience elsewhere.

Most of the schools in the building wave of the 60's were poorly constructed, to standards unacceptable today; they're expensive to maintain, extortionate in energy terms, unpleasant and ineffective environments, too hot in summer, too cold in winter, with poor ventilation, terrible acoustics, they lack flexibility and are difficult to adapt. In non-technical language they're crap.

And most have reached they're useful lifespan unless subject to a major overhaul. But refurbishment, of the sort required, is actually very expensive. Once you start stripping things out you usually find more and more problems. You're quite likely talking about stripping the building back to it's most basic structure and starting again.

And even if you can get away with less you still have the problem of what to do with the pupils. Children and building sites are not a good combination. So you need to decant the pupils. You need to find the space to put a whole lot of Portakabins you've hired for the duration. And that in itself is expensive as well as inconvenient.

In many instances proposals for refurbishment turn out at a cost not too far short of new-build, at higher risk and with a less satisfactory outcome.

So new build is frequently preffered. Done right you'll have a better outcome and the costs are easier to predict. But to do new build on an existing site you need space. The usual pattern is to build the new school on the playing fields, wait till it's finished, then demolish the old school and turn it into playing fields. That way children are kept separate from a building site and decanting costs are obviated. But you need the space to do it.

And whilst I know nothing about the state of PHS it's blindingly obvious that they do not have an abundance of space. I think it would be extremely difficult to develop a new school in-situ. And when it comes to construction the extremely difficult translates into the extremely expensive. Even if possible it's likely to be cost prohibitive.

At any given time there's a going rate for constructing a school. I don't know the figure for secondary schools but it might be in the £1600 to £1800 per square metre range. Any proposal that falls outwith the currently accepted band is extremely unlikely to get off the ground.

So if PHS really is in a state, and I'm in no position to judge, you face a real problem. Given the limitations of the site the prospects of either refurbishment or new development in-situ face huge obstacles. Even if possible they're probably financially unviable.

But even a scheme that could work within such constraints faces another problem. Developing in-situ has no self-financing element. And without a cash injection from somewhere any such project could only be realistically funded via PPP.

And PPP is an all but unmitigated disaster. Billions have been thrown away replacing old crap schools with new crap schools. But given the political sensitivities about admitting such a monumental waste of public money it'll take a few years for the true awfulness of the situation to percolate into the general conciousness.

If a way can be found to avoid PPP grab it.seanie

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[Sceptic]

Aye, there's the rub.

All Edinburgh schools built since 2002 have been PPP. CEC cannot afford the money to build new schools.
You get a school, built at minimal cost, on a 30 year lease at maximum income.
Before anyone blames the present administration, it was not them who initiated the scheme.
Virtually every school in Scotland is built under PPP now.

[Porty]

Minor point: St Thomas was built with council cash but it took about 14 years to save up. From memory it cost a bit less than double what a porty decant will cost. Put another way: the SG have just promised cash for a new St Johns. The council could easily blow it on a decant of phs.

[Sceptic]

RE decant of PHS, where to?
Split PHS up and send pupils all over Edinburgh? Cost? As you point out, cost of that alone..............

[little miss moffat]

Councillor’s Report
September 2012

Maureen Child, Labour Councillor for Portobello/Craigmillar

Portobello High School Judgement
As everyone must know by now, the judgment by the Inner Court of Session last week said the Council had no legal right to appropriate Common Good land in order to build a new Portobello High School. I have an email inbox with a 4:1 majority of constituents in favour of finding a legal solution to this big set-back, so that the school can go ahead on the park. With colleagues from all political parties (and none) participating constructively, I helped organise a public meeting which attracted around 250 people from all sides of this argument. Some had to break into groups in the gallery, and on the floor upstairs, so that they could all engage with the process, using maps and post-its. First, they all heard a very clear summary of the legal background from Andy Wightman who has done a huge amount of research in Common Good. Andy has advised both sides of this argument and will also advise the Council. This law is far from clear cut. So, on a Friday night at short notice, 250 people engaged with the physical reality of the Portobello catchment area. They saw the size of site needed for a new school - 4.5 hectares - and they filled in lots of post-it notes. All the written information will be collated by staff from the offices of Sheila Gilmore MP and Kez Dugdale MSP in the next few days. The data, and the feedback I have had directly, will to be fed in and inform any possible way ahead. I am deeply grateful to everyone who took part, not least the Chair, Rev Peter Webster the School Chaplain our independent Chair who kept us focussed on mapping the best way forward. The Council will have a report at the next Council Meeting, October 26, which will set out all the options and the timescales involved.

[little miss moffat]

Took this clip from her blog: What Next for Portobello High School?
September 27th, 2012 | Author: keziadugdale

The Sports facilities at Portobello are particularly depressing, with just one small astro pitch for football on site. As a consequence, the school spends a fortune each year transporting kids by bus to the Jack Kane Centre. For just 15 mins of PE, it’s hardly a price worth paying.

The Scottish Government has a policy of ensuring that all school pupils get at least 2 hours of PE a week. Portobello has a special dispensation, because of its lack of facilities, not to meet that target but that can’t go on indefinitely.

Wasn't aware of this!

[Pal of Porty]

Definitely true LMM - been in place for a while now.

[little miss moffat]

So, surely a rebuild on the same site is out of the question as the dispensation would need to remain in place for the remainder of the new build life term.

[rathbone]

the school spends a fortune each year transporting kids by bus to the Jack Kane Centre

And nothing new either. We were bussed up to Niddrie for 'games' in the 1960s before the Jack Kane Centre was even built.

[little miss moffat]

It was more the 15 minutes of PE that concerned me and the fact that PHS children are not receiving the 2hrs PE per week.

[Porty]

Portobello has had a high school for approximately 120 years. The school has been replaced once in all that time. Compare that with the majority of Edinburgh s other state secondaries. The school has NEVER had on site outdoor sports facilities. Even when it was the biggest school in Europe .