New Portobello High School - PPAG win legal appeal

[neilking]

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

Unfortunately, that opinion doesn’t advise on whether the park is CG or not. It only advises the Council (wrongly as events transpired!) what to do in light of its concession that the park is CG. So doesn't really take us much further forward.

There's an interesting passage in Lady Dorrian's judgement, though:-

“The [Council] did not accept the contention that the land constituted part of the common good until a report of January 2008, which recorded that “facts and circumstances indicate that Portobello Park is common good. In accordance with the decision of counsel, the Council will seek authority of the court at the appropriate time when funding has been identified”.”

That report of January 2008 and decision of counsel referred to there seem to me to be fairly crucial documents.

[mr magnolia]

That report of January 2008 and decision of counsel referred to there seem to me to be fairly crucial documents.

I should say so!
No shame left in being wrong about the common good status in January 2008, if being wrong means that work can proceed.

[wangi]

Poll being run on the New Porty High School Facebook page: http://www.facebook.com/questions/489088671110626/

What is your preferred option for a new Portobello High School?

• (*) On Portobello Park - get it built, politicians make it happen
  (*) At Castlebrae, Craigmillar
  (*) Back to the drawing board - investigate other sites (again)

[Maria]

Poll being run on the New Porty High School Facebook page: http://www.facebook.com/questions/489088671110626/

What is your preferred option for a new Portobello High School?

• (*) On Portobello Park - get it built, politicians make it happen
  (*) At Castlebrae, Craigmillar
  (*) Back to the drawing board - investigate other sites (again)

See someone has added another option - build it on the Holy Rood site and share playing fields - and 4 people so far have voted for this.

The Holy Rood site is not able to accommodate another school. It is big enough only for Holy Rood itself. This is NOT an option.

[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.

I have to say I'm impressed with the format of the meeting. This seems to be a much more effective way of collecting ideas etc. Hopefully whatever is gathered at the meeting will be assessed, and dealt with quickly and effectively

[fenton]

See someone has added another option - build it on the Holy Rood site and share playing fields - and 4 people so far have voted for this.

The Holy Rood site is not able to accommodate another school. It is big enough only for Holy Rood itself. This is NOT an option.

The quoted figure for a new PHS was about 20% of Portobello Park and that was including playing fields.The area required for PHS at Duddingston would be much less as it would be sharing playing fields,would also cost less to build as well,so I dont know how you can say that this is not an option.Attitudes like that are how we got into this bloody mess in the first place.

[Maria]

The quoted figure for a new PHS was about 20% of Portobello Park and that was including playing fields.The area required for PHS at Duddingston would be much less as it would be sharing playing fields,would also cost less to build as well,so I dont know how you can say that this is not an option.Attitudes like that are how we got into this bloody mess in the first place.

Holy Rood occupies a site of 5.3 h, sufficient for the single school on that site, which was built to accommodate a future roll of 1200. Holy Rood's present roll is around 1000 and is rising rapidly. The site cannot accommodate another school. Please inform yourself properly of the debate, before issuing ignorant statements decrying the 'attitude' of others.

[fenton]

The quoted figure for a new PHS was about 20% of Portobello Park and that was including playing fields.The area required for PHS at Duddingston would be much less as it would be sharing playing fields,would also cost less to build as well,so I dont know how you can say that this is not an option.Attitudes like that are how we got into this bloody mess in the first place.

Holy Rood occupies a site of 5.3 h, sufficient for the single school on that site, which was built to accommodate a future roll of 1200. Holy Rood's present roll is around 1000 and is rising rapidly. The site cannot accommodate another school. Please inform yourself properly of the debate, before issuing ignorant statements decrying the 'attitude' of others.

I'm not issuing ignorant statements, you were the one dismissing this site as an option.i think you should take a walk up( 5 mins by car) and take a look, you obviously havent, I have and there is more than enough room on this site.

[Maria]

I'm not issuing ignorant statements,

I believe your earlier statement,

Attitudes like that is what got us into this bloody mess in the first place.

is an ignorant one.

you were the one dismissing this site as an option

Absolutely and I repeat, the site is not big enough.

i think you should take a walk up( 5 mins by car) and take a look, you obviously havent, I have and there is more than enough room on this site.

I know the school well and, unlike you, I also know the facts and figures, instead of relying on guesswork. If, as you claim, you have seen the site yourself and still think there is room for another school, perhaps you should go to Specsavers?

[tufty]

Reading comments and suggestions for a new location, split, decant etc etc etc.

Is the golf course common good land? Can the council build it there?

I await the interesting come backs.

[Maria]

The golf course is part of Portobello Park, Tufty. The letter to 'The Scotsman' dated 15/05/1900, which Wangi posted further up this page, makes entertaining reading

[tufty]

Thanks Marya, I had read the text above, and just wondered when the golf course changed the origional park, and it seems without full backing of locals, at that time did it's status change.
Having had a house full of disappointed teenagers this week I would see the school built on stilts in the sea to get it done. The laugh is my kids were probably never getting it but they know how much it's needed.

[mr magnolia]

Thanks Marya, I had read the text above, and just wondered when the golf course changed the origional park, and it seems without full backing of locals, at that time did it's status change.

the whole of this tragic farce seems to hinge around the Common Good status of the land, a status that CEC denied forcibly and then agreed to. I suspect they agreed to it because they thought it would make no difference. If they were so profoundly wrong about that, then I'm willing to believe that they were also wrong about the Common Good status. I don't think we have ever been publicly advised of the whys and wherefores around the previous councils decision to allow that the land is Common Good land.

[Bob Jefferson]

Unfortunately, I suspect that there is no simple answer as to whether Portobello Park is CG or not. PPAG said it was, the Council said it wasn't. Andy Wightman said in his opinion it was, the Council conceded that it was, perhaps on the basis of the precedents set in Lanarkshire, where it didn't seem to matter anyway. There doesn't seem to be any agreement over precisely what constitutes CG either and if the Council now declared that it wasn't, they would be sure to face a legal challenge. It's one big mess.

[Mark Cameron]

and this probably makes it messier.........http://www.scotsman.com/edinburgh-eveni ... -1-2532804

[wangi]

and this probably makes it messier.........http://www.scotsman.com/edinburgh-eveni ... -1-2532804

And if you missed it, Neil's post is actually in this thread:
Subject: New Portobello High School - PPAG win legal appeal

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!

[Bob Jefferson]

I'm sure Neil is correct in that the current law doesn't appear to make much sense and can't possibly be what the legislators intended, but my concern is that such an 'amendment' would attract opposition on a national basis from environmental groups opposed to what they would see as an erosion of protection to CG. A Private Act, on the other hand, could deal specifically with Portobello Park. But there is no reason why the 2 approaches could not be taken concurrently, along with an appeal to the Supreme Court AND a review over whether the park is in fact CG in any case.

[Mark Cameron]

I received a reply from Maureen Child saying everything is being considered, but it doesn't look like this option (selling the park) is possible. I've gone back to try to establish whether this is because the CEC don't want to sell the land or whether they think legally they couldn't do it.

I think if it's possible to sell it then that is the option we need to press for.

[jb5370]

Poll being run on the New Porty High School Facebook page: http://www.facebook.com/questions/489088671110626/

What is your preferred option for a new Portobello High School?

• (*) On Portobello Park - get it built, politicians make it happen
  (*) At Castlebrae, Craigmillar
  (*) Back to the drawing board - investigate other sites (again)

At some point, could someone maybe put the results of the poll on this forum for those of us who don't have (and don't want!) Facebook? I know you can sometimes view Facebook pages but this one is asking for a sign in. Thanks.

[wangi]

jb, it's currently reading:

275: On Portobello Park - get it built, politicians make it happen
18: Next to Holyrood High share playing fields
6: At Castlebrae, Craigmillar

[neilking]

... but my concern is that such an 'amendment' would attract opposition on a national basis from environmental groups opposed to what they would see as an erosion of protection to CG. A Private Act, on the other hand, could deal specifically with Portobello Park.

That's a very good point Bob but a contra argument might be that, in the public mind (outside PPAG), common good's name is mud because it's perceived (insofar as anyone understands it all) as the historical relic which surfaced and sank PHS.

You could also argue that even the private act would attract opposition from conservationists concerned to protect CG by allowing them to say "Oh so it's OK for you to dilute CG for your school but not for us ...??"

But as I said before, I'm not a politician. If the politicians think a one-liner private act to allow PHS in Porty Park is politically deliverable, then they should absolutely go for it. I was going to add that the private act could perhaps be an interim measure pending a longer term root and branch review of CG but then the politicos might think the private act was prejudging the review ...

I suspect a private act would have to require the Council to dedicate an equivalent amount of CG elsewhere but I don't think that's much of a problem and should neutralise conservationists' objections. (Although under my suggestion, it allows the court to require provision for alternative green space and CEC would probably volunteer this anyway.)

Like I said, over to the politicians!!!

[neilking]

Unfortunately, I suspect that there is no simple answer as to whether Portobello Park is CG or not. PPAG said it was, the Council said it wasn't. Andy Wightman said in his opinion it was, the Council conceded that it was, perhaps on the basis of the precedents set in Lanarkshire, where it didn't seem to matter anyway. There doesn't seem to be any agreement over precisely what constitutes CG either and if the Council now declared that it wasn't, they would be sure to face a legal challenge. It's one big mess.

Actually Bob, Andy Wightman says on his blog http://www.andywightman.com/?p=1562#comments that he doesn't have enough information to be able to say whether it's CG or not.

The ONLY thing that's in the public domain (that I know of) which has a bearing on whether the park is CG or not is the fact that the deed doesn't mention it was being acquired under a statutory function. That's significant because, if it was acquired under a stat function, then it can't be CG. But the mere fact the deed doesn't mention a stat function is absolutely not conclusive that it is CG. It only opens the door to the possibility and there must be other evidence as well which led the Council to conclude that it is CG. As I've said before, I think it behoves the Council to tell us what that evidence is. Meanwhile, there's little point in me or Andy or anyone else talking about what our various hunches on the matter might be.

The Council's and its lawyers seem to have nailed their colours to the mast of it being quite safe to concede the park is inalienable CG because the LG(S) Act 1973 (and if not, the LGISA 2003) allows them to build the PHS there anyway. They didn't think it necessary to keep in reserve a fallback argument that the park wasn't CG.

Thus, if I were the Council, I'd be wanting to review the evidence for CG again and, if there's the slightest possibility it might not be, finding out whether it's possible to "un-concede" and let the Supreme Court decide?

Finally, would PPAG have the resources to pay for a defence of an appeal to the SC?

[mr magnolia]

Thus, if I were the Council, I'd be wanting to review the evidence for CG again and, if there's the slightest possibility it might not be, finding out whether it's possible to "un-concede" and let the Supreme Court decide?

From a laymans perspective, I would suggest that 'un-conceding' is surely an easy step (if backed with some logic) as it really only says that an assumption upon which decisions have been made and judgements have been based is now believed to be wrong. CEC certainly need to be open about what the logic is, one way or another. There is nothing to lose.

[Bob Jefferson]

Actually Bob, Andy Wightman says on his blog http://www.andywightman.com/?p=1562#comments that he doesn't have enough information to be able to say whether it's CG or not.

Sure, I meant that was Andy's opinion at the time and I'm sure it carried some weight when the Council came to deciding whether to accept the land as CG or not, given his reputation. So my guess is that there was no conclusive evidence that the land was CG and that the Council, as you suggest, simply accepted it as such because the precedents in Lanarkshire seemed to indicate that it didn't make any difference.

If it could be proved that the park isn't CG, then that would seem to be the simplest solution to our problem but I'm not even sure what we are looking for. Whatever it is, I'm happy to buy a pint for the first man or woman to find it.

[gillian]

A pint?? I'll host a party!!

[Bob Jefferson]

Please print and display

gib.pdf

(356.14 KiB) Downloaded 320 times

[Sceptic]

"Get it Built" is fine, Bob.

Problem is, where?

There might only be Craigmillar available. We could end up with one school there with about 2,000 pupils and staff.

Getting plans drawn up, obtaining finance and only then start building, it could be 2020 before we have any solution.

But, is the solution the one everyone wants?

[Bob Jefferson]

I don't think many people are taking Craigmillar seriously as an option. In my opinion, there is only one site and only ever has been one site.

[Betty Windsor]

I don't think many people are taking Craigmillar seriously as an option. In my opinion, there is only one site and only ever has been one site.

Are you being serious? Do you really think that urging CEC to break the law (again) is a good example to set to our children?

[Bob Jefferson]

Check the poll Betty. It's not just my view. The vast majority want the school to go ahead on the park. Who is to say that an appeal to the Supreme Court won't overturn the decision again?

[Betty Windsor]

Check the poll Betty. It's not just my view. The vast majority want the school to go ahead on the park. Who is to say that an appeal to the Supreme Court won't overturn the decision again?

The Supreme Court may well overturn the decision, but more likely not, and where would that leave the build? Your suggestion to fight this through the courts will inevitably lead to more delay with NO guarantee of success. It doesn't matter how many people signed your petition. There are plenty of people who are happy with the court's decision but because of previous incidents of bullying and intimidation by some members of PFANs, many of these people keep quiet.

I would also like to point out that it was 3 SENIOR judges who overturned Lady Dorrian's decision so it will be interesting to see if CEC go for the appeal. Based on the dodgy legal advice they've had so far nothing would surprise me.

[Epykat]

Check the poll Betty. It's not just my view. The vast majority want the school to go ahead on the park. Who is to say that an appeal to the Supreme Court won't overturn the decision again?

You should have said 'The vast majority who voted'. The vast majority who voted are probably parents with children who might benefit from new school. That doesn't necessarily mean the vast majority of the catchment area - but you just refuse to concede that that might just be possible. As we've discovered lately, anything is possible. An appeal to the Supreme Court might just overturn the decision again, just as it might have overturned it had PPAG lost and appealed again. Who knows, there might then be Drop the Appeal posters in different windows. And so it goes on.

[Mark Cameron]

So Betty and Epykat where should a school fit for 1400 Portobello kids be built?

[Bob Jefferson]

They don't know and they don't care, though I'm sure at least one of them will suggest that it could be re-built onsite. No doubt the Council will review all of the options once again, but a site that was too small 6 years ago is unlikely to have grown in the interim, just as a site that was badly located in the catchment area will not have moved. Let's remind ourselves of the 3 options that remained:

1. Portobello Park
2. Golf Course
3. Existing site PLUS St John's

So if the Council can't build on the first 2 because it's inalienable CG, that leaves the existing site + St John's. Leaving aside the logistical nightmare of a 2 year decant costing millions of pounds, this site is too small and, furthermore, St John's do not want to move.

But this is far from being over. We have a site that has overwhelming support within the community, based upon every measure that has been applied, we have planning permission, a design ready to go and a contractor ready to start work. Unfortunately, we also have a law relating to CG that makes no sense and is probably the result of a drafting error. There are several means to overcome this hurdle, none of which is easy and all of which have a similar timescale. We should pursue all of them, including an appeal to the Supreme Court.

As a final thought, if CG is our land then let us decide how we use it. PPAG still claim they represent the significant majority. In that case, I'm sure that they would be happy for the matter to be decided by a local referendum, as Andy Wightman has suggested.

[seanie]

The issue at the heart of this is still the same. The school urgently needs replaced. This is also an opportunity to rectify a mistake of 50 years ago when the largest school in Edinburgh was built on a site that was far too small.

The reasons for choosing the park site still hold; it was the best of very limited options. And considerable time, effort and resources have been put into that. It would foolish to throw that away without at least looking at what options exist to proceed as planned, be it through a legal or legislative route.