New Portobello High School - PPAG win legal appeal

[seanie]

It would be for the Council to do. Someone said the Bill for the National Galleries took about 6 months but that may be exceptional.

[regent]

I am assuming that there would be an objection to the bill and that this could draw the whole process out.

Right to object

3.1 Under Rule 9A.6.1, any person, body corporate or unincorporated association may lodge an objection to a Private Bill that would adversely affect their interests (see paragraph 2.26). This may include individuals, amenity bodies and others whose interests may be adversely affected by the proposal

[regent]

Suppose it just seems that there is going to be no quick fix and the contractor, I assume, will pull out at some point.

[seanie]

As I understand it a Private Bill would mean setting up a Committee to investigate the matter, and that would be the opportunity for opposing and supporting voices to be heard. Not sure it would drag things out that much, the arguments are well rehearsed and not particularly exhaustive. The project may have to be re-tendered, which would be a 6 month process at best, so that's not great. There may be other routes that are quicker than a Private Bill but I don't know how feasible they are.

[Sceptic]

The project is suspended, as it was the entire tranche of school rebuilds which was involved, not just Portobello. The contract included, if my memory serves me correct, no doubt I will be corrected if I am in error, Gillespie's and Boroughmuir.
That was the importance of the appeal being dropped before a certain deadline.

[seanie]

All the schools are being tendered separately, so there shouldn't be any impact on JGHS or BHS. The only other school directly effected is St John's.

[regent]

The poster produced reading Close the loophole. What loophole does this refer to?

[seanie]

Potentially two loopholes; the '73 allows for the disposal of inalienable Common Good land, but is silent on appropriation. It looks like a drafting omission.

Secondly the Court took such a narrow view of 'well being' as to render the 2003 Act pointless. There is the option of clarifying what parliament intended under the 2003 Act.

[Porty]

PPAG QC advised the inner house judges that the 2003 act empowered Councils to action almost anything to promote the well being of its citizens. He illustrated the powers by suggesting that should Edinburgh city council decide that relocating the city HQ to Hawaii was to the benefit of our citizens, the act enabled them to do so.

The judges clearly did not like this idea and I think all 3 demonstrably disapproved of this empowerment and this clearly influenced their judgment. Hugely so in my opinion.

They chose to override the thrust and intent of the Act , which is beyond their duty. The above mentioned loophole allowed them the opportunity.

[neilking]

Secondly the Court took such a narrow view of 'well being' as to render the 2003 Act pointless. There is the option of clarifying what parliament intended under the 2003 Act.

Slightly disagree with you there seanie (and Porty). I know Lady P made that rather careless throwaway remark about it not being self evident that a school advances wellbeing but that wasn't the core of her judgement on the 2003 Act which was that the Act may give Councils very wide powers but it doesn't go so far as to allow them to override normal legal restraints.

For example, you could say it would advance wellbeing mightily if the Council hired a gang of mercenaries to shoot to kill people caught dealing drugs. But obviously the 2003 Act couldn't be invoked to justify that because people (even drug dealers) have the right not to be shot. The people of Edinburgh also have the right not to have their inalienable common good appropriated. Of course, you may disagree with such rights but the courts don't have the power to abrogate people's rights, only Parliament can do that (by an Act in very explicit terms).

I can imagine the Supreme Court saying: (a) Lady P talking out of hole in wig - of course a school advances well-being; but (b) the point about the 2003 Act not over-riding legal rights and constraints is correct.

[seanie]

The power to advance well being was constrained by explicit provisions. Hiring mercenaries to kill people is explicitly prohibited anyway, so as an analogy it's just silly. And when it cones to common law and common good there wasn't a single instance, of a single judge, in any case, ever articulating explicitly the inalienable could not be appropriated in any event. If that is a fundamental right, it's one that has been unexpressed over centuries of case law.

[Betty Windsor]

The clue is in the word "inaliable".

[seanie]

The clue is in the word "inaliable".

The word is 'inalienable', but inalienable land can indeed be alienated via disposal. The recent ruling hinged on appropriation. There's a strong case that appropriation doesn't necessarily involve alienation, or that an appropriation could be alienation to such a degree that it became a disposal, and so powers under the '73 Act could be available.

[seanie]

The report that goes to Council on the 25th will consider two key questions; what legal options are available to build the new school on Portobello Park and what alternative site options are available in the event that this does not, ultimately, prove to be possible.

Given the importance of replacing PHS, and inevitable delays and additional cost whatever is done, I think by far the best option is to pursue both.

The Council should seek to find a way to overcome the legal judgment, AND - consider an alternative site for the school.

[neilking]

so as an analogy it's just silly.

Perhaps. Can you suggest a better one to illustrate the point I was making.

And when it cones to common law and common good there wasn't a single instance, of a single judge, in any case, ever articulating explicitly the inalienable could not be appropriated in any event.

Grahame v Magistrates of Kirkcaldy?

[Porty]

Prior to the 2003 Act; Councils could alienate inalienable CG land. The Act was designed to broaden local govt powers to make it easier and less costly to promote well being. Lady P managed to enforce the act in a way that is completely at odds with the intention.

[seanie]

The 2003 Act was meant to be far reaching. Prior to that Local Authorities could only do that which they had been given express statutory authority to do. The intention of the act was radical in that it gave the Local Authorities the power to advance well being unless there was an explicit limiting provision in law. Hiring mercenaries to kill people would fall under an explicit limiting provision.

In Grahame v Magistrates of Kirkcaldy, the decision relied heavily on neglect, and there was no explicit articulation that inalienable land could never be appropriated, and it doesn't accord with other case law where the question of appropriation was considered on the basis of degree such as Paterson v Magistrates of St Andrews.

If it is indeed unlawful to appropriate inalienable common good land, it's remarkable that the principle has never been explicitly articulated, especially when it would have made a good many court hearings a great deal shorter. And since it has never been explicit, it's difficult to see how it could legitimately be interpreted as a limiting provision.

[Betty Windsor]

I know Lady P made that rather careless throwaway remark about it not being self evident that a school advances wellbeing but that wasn't the core of her judgement on the 2003 Act which was that the Act may give Councils very wide powers but it doesn't go so far as to allow them to override normal legal restraints.

I find it hard to believe that Lady Paton's remark was meant to be either careless or throwaway. There is plenty of evidence to prove that access to green open space and indeed just living beside it, is good for health, both physical and mental. To argue that building a school on such precious green space in an urban area is good for the well being of all, would be really pushing it in most peoples' books. (obviously not Towerbank parents).

Seanie sorry about the typo, thing is I went to a school that was not "fit for purpose" so I hope you'll make allowances.

[seanie]

People living near the school on the park would still be living beside open green space.

The big thing?

With holes?

And little flags?

[seanie]

Anyway, leaving aside these distractions, the most important thing is to find a sensible way forward.

So the Council should seek to find a way to overcome the legal judgement, AND - consider an alternative site for the school.

[Betty Windsor]

Anyway, leaving aside these distractions, the most important thing is to find a sensible way forward.

So the Council should seek to find a way to overcome the legal judgement, AND - consider an alternative site for the school.

I think it's highly unlikely they'll do both. Might be hard to justify to the rest of the city.

[seanie]

I think it's highly unlikely they'll do both. Might be hard to justify to the rest of the city.

I think it almost a certainty they'll do both.

Only looking for an alternative site means a 4-5 year delay at absolute minimum. It means writing off a large investment in the project so far. It means significant further investment in PHS to keep it operational, the £5.75 million over 5 years estimated in 2008 having not been fully carried through because of the anticipated replacement school. Also, some alternatives are likely to involve a decant upwards of £7 million and with considerable disruption. And bear in mind the possible impact on St John's which, having been awarded money by the Scottish Government is now in limbo because work was predicated on PHS having moved site allowing greater opportunities.

The process of evaluating alternatives and taken them to consultation isn't exactly quick and, in the grand scheme of things isn't expensive. The Council could quite easily commission further evaluation of alternatives whilst simultaneously pursuing legal/legislative routes.

It strikes me as only sensible to do both.

[Betty Windsor]

Or they may decide to stop throwing good money after bad and admit defeat. Then we can all get on with looking for alternatives that do not involve stealing green space.

[seanie]

Well there do appear to be legal and legislative routes available, to pursue them doesn't involve huge sums compared to things such as decants, and if that can run in parallel with looking into alternatives then it's only sensible to do both.

[neilking]

The 2003 Act was meant to be far reaching. Prior to that Local Authorities could only do that which they had been given express statutory authority to do. The intention of the act was radical in that it gave the Local Authorities the power to advance well being unless there was an explicit limiting provision in law. Hiring mercenaries to kill people would fall under an explicit limiting provision.

In Grahame v Magistrates of Kirkcaldy, the decision relied heavily on neglect, and there was no explicit articulation that inalienable land could never be appropriated, and it doesn't accord with other case law where the question of appropriation was considered on the basis of degree such as Paterson v Magistrates of St Andrews.

If it is indeed unlawful to appropriate inalienable common good land, it's remarkable that the principle has never been explicitly articulated, especially when it would have made a good many court hearings a great deal shorter. And since it has never been explicit, it's difficult to see how it could legitimately be interpreted as a limiting provision.

We're just going to have to agree to disagree about some of this seanie!

What we can agree on is that there is no legal reason why the school can't be built on the park. The most obvious reason being it's not common good at all. And if it is (in which case it's inalienable), it can become alienable (and hence available for appropriation) if the Council provides equivalent alternate facilities elsewhere. (That, incidentally, is why the Magistrates failed in Grahame - not because of the neglect but because there was no suggestion they were going to provide alternative bleaching green space to replace that taken up by the stables.) About million miles down my list of legal arguments would be the 2003 Act but let's not rake up that again!

[seanie]

The idea that changing the status from inalienable to alienable via transferring the status to alternative land, goes back to an odd interpretation of the '73 Act and possible conditions surrounding disposal. The case heard was agreed not to be a disposal of inalienable common good land, only on the legalities of an appropriation. And whilst you may not be interested in the 2003 Act, it was intended as a power of first resort. A power to advance well being only limited by explicit restrictions.

Where in Common Good law is the explicit restriction on appropriating Common Good land?

Why were the judges unaware of it in the North & South Lanarkshire cases?

Why had Lady Dorrian never heard of it?

[neilking]

seanie, before I say any more for now can I ask whether you believe the park to be common good or not?

[Porty]

It's a racing certainty the council will pursue in the manner Sean suggests. Will they challenge the CG status? That is the £25, 000 question. (In 1896 money)

[portygeoff]

I know Lady P made that rather careless throwaway remark about it not being self evident that a school advances wellbeing but that wasn't the core of her judgement on the 2003 Act which was that the Act may give Councils very wide powers but it doesn't go so far as to allow them to override normal legal restraints.

I find it hard to believe that Lady Paton's remark was meant to be either careless or throwaway. There is plenty of evidence to prove that access to green open space and indeed just living beside it, is good for health, both physical and mental. To argue that building a school on such precious green space in an urban area is good for the well being of all, would be really pushing it in most peoples' books. (obviously not Towerbank parents).

Seanie sorry about the typo, thing is I went to a school that was not "fit for purpose" so I hope you'll make allowances.

Shame that you want to keep this benefit to yourself and not share it with the children of Portobello; there is plenty of green to still go around.

[portygeoff]

Or they may decide to stop throwing good money after bad and admit defeat. Then we can all get on with looking for alternatives that do not involve stealing green space.

Its not stealing Betty, the Council already owns the green space, that what £25,000 was spent on. If your issue is the total area of green space I take it you will drop your objections if a similar amount of green space was brought into use to replace that lost?

[seanie]

seanie, before I say any more for now can I ask whether you believe the park to be common good or not?

I don't know. I've never understood why it's considered Common Good; it's not been there since time immemorial, it wasn't gifted, it appears to have been bought under the statutory provisions of the Edinburgh Extension Act, the usage as a park doesn't itself confer the status, the feu burdens should've flown off,and nobody at the time of acquisition (or for the next 100 years) thought it was Common Good.

I'm not saying it's not Common Good, just that it's not obvious why it should be.

[Betty Windsor]

Or they may decide to stop throwing good money after bad and admit defeat. Then we can all get on with looking for alternatives that do not involve stealing green space.

Its not stealing Betty, the Council already owns the green space, that what £25,000 was spent on. If your issue is the total area of green space I take it you will drop your objections if a similar amount of green space was brought into use to replace that lost?

That's just the point Geoff they tried to take it without offering alternative green space.
The children of Portobello may well have enough open green space but the same cannot be said for the children of Magdalene and the Christians. Or do they not count?

[seanie]

The park is barely used by any children, and the new school with accessible all-weather pitches would be an improvement in amenity, and there would still be that big green thing with holes and little flags on.

[gillian]

Betty don't start all that again. The children of Magdalene and the Christians don't use the parks. You know that, we know that. You also know that the children of Magdalene and the Christians matter as much as any child. Which is why there is the fight to get them a new school. Your new attempt to try to introduce some sort of class, us and them situation is as patronising and offensive as the last attempt.

[Porty]

Once the accessible all weather pitches are in place, the usage figures for the park will increase, possibly by a factor of 10 or more on a weekly basis.

One only has to look to the Powerleague site to appreciate what all weather and floodlights can do for a site, in terms of usage.
The open air pool was open maybe 5 months a year and numbers were inextricably linked to weather conditions.
Now the site is open and busy 360+ days a year. The idea that floodlights and all weather pitches will somehow impair the general health of the community is bonkers. At present Portobello Park is in darkness from late afternoon, 5 months of the year. Which is how they prefer it up Park Avenue way.