1. "One third of the community are against...."
I don't know where the one third figure comes from (although it does raise a question about the other two thirds) but in any event there's a problem. The PPAG web-site says they represent a SIGNIFCANT MAJORITY. Those are not compatible claims. So at best they're spreading falsehoods on one web-site, at worst two.
2. "The park is supposed to be protected as Common Good land, which means that it is community property held in trust by the Council...
Common Good land is not 'held in trust'. It is legally owned by the Council. That fact is established by the 1973 Local Government Scotland Act and is beyond question.
3. "...and should never be built on"
Whilst there are restrictions on the use and disposal of Common Good land, that does not mean Common Good land should never be built. Indeed, the Courts have gone so far as to say that their permission is NOT REQUIRED for schools to be built on Common Good land.
4. "The community are preparing for a legal battle against the Council and are having to find £20-30,000 to prove that the land belongs to the them."
This sentence may not actually be a falsehood so I include it only provisionally. Instead it may just be a sincere statement of utter nonsense. I'll take it in two parts;
"having to find £20-30,000"
To raise an action in the Inner house of the Court of Session? That may be enough for a couple of consultants at a Planning Inquiry but QCs and court cases? Dream on. There's also the additional risk to consider. Take a case to court and lose and the Council might pursue it's own legal costs. You need to raise enough money, not just to cover your own costs, but the other sides should you lose. Otherwise those who mount the action could face very serious financial difficulties, because such an action can only be mounted by an entity that can be held liable; an individual, a group of individuals, a company etc. I'd suggest £100,000 as an absolute minimum.
5. "to prove that the land belongs to the them."
If the land isn't Common Good, it belongs to the Council. If the land is Common Good, it belongs to the Council. Under no conceivable circumstances does it belong to a self-declared 'one third' of the community who don't like the High School proposals.
6. "But now the Council are hoping that they win a legal case..."
No they're not; there is no legal case, they're not expecting one, and so they don't have any hopes regarding said non-existent legal case.
7. "If they do win, it will give a green light to build on or change use of Common Good land throughout the country."
If they win the non-existent legal case, it will not change the situation one iota and will not give the green light to anything. The Council received legal opinion from two QCs that permission from the courts was not necessary for the school to be built on Common Good land.
That opinion was in line with
recent legal precedent;
An actual court case;
"the petitioners wish to use the land for the construction of two schools on a shared site with shared facilities. Both areas of ground form part of the petitioners' common good."
North Lanarkshire wanted to build two schools on parks forming part of the Common Good and went to court to seek permission. And the Court said?
"...the use of land held for the purposes of the public park to construct a school and playing fields does not involve any "disposal" for the purposes of the subsection. In view of that decision, which is obviously binding on me, I consider that there is no "disposal" in the present cases. It follows that section 75(2) has no application. In these circumstances I refused the prayers of the petitions as unnecessary."
The Court held the petition was uneccessary.
Since the land would still be owned by the Council, and used to the benefit of the community, the Court decided that the Council didn't even need to seek permission. The proposal was perfectly legal as far as the court was concerned.
To be generous for a moment, there is always a legal case that can be made for or against something. That's true no matter how inauspicious the circumstances and that's why lawyers can command such eye-watering fees. So I've no doubt at all that some sort of legal challenge against the Council's position could be brought to Court.
But the Council's position is based on recent decisions from both the Inner and Outer Houses of the Court of Session. So any legal challenge would have to overturn those previous rulings.
Going to the Court of Session and arguing the Council is wrong is one thing.
Going to the Court of Session and arguing the Court of Session is wrong is another.
