Portobello Park Action Group warns MSPs of setting dangerous precedent over Portobello Park
Portobello Park Action Group (PPAG) is urging MSPs to vote against a Private Bill that would allow the City of Edinburgh Council (CEC) to build a new school on the inalienable common good land of Portobello Park.
As the Scottish Parliament’s Private Bill Committee is getting ready to hear evidence from the proposer’s side today, campaigners have sought legal advice which they say confirms appropriation of the land would set a dangerous precedent with consequences reaching far beyond Edinburgh.
“We want a new high school for Portobello just as much as everybody else, but the Court of Session ruled in September 2012 that Portobello Park is inalienable common good land, making it illegal to build on the land”, says PPAG spokeswoman Alison Connelly.
“We find it very strange that a new planning application has been submitted for Portobello Park when it is currently illegal to build on the land.
“It is inconceivable why the council would continue to waste money to pursue these plans, especially when alternative sites are readily available.
“The parliament’s own legal experts reviewed the case and found that the park is indeed inalienable. Changing its status to allow the City of Edinburgh Council to build on it will open the door to the appropriation of more parks throughout Scotland.
“Cash-strapped councils could quite simply use valuable green space to help fill their pockets by selling these prime sites to developers.”
Other parks being threatened by similar plans include Bogton Park in Forres, Coo’s Green in North Berwick and Cowan Park in Barrhead.
“We are also concerned about the Scottish Government getting involved in and deciding what is currently a local issue. This high-level involvement ensures that other councils can use the Government’s decision when facing similar issues in the future, leading to further loss of green space in our cities.”
PPAG has campaigned against building on Portobello Park since 2006. A full timeline and more detailed comments from PPAG of the Save Porty Park campaign can be found at www.portygreenkeepers.org.uk
You can read about the need for a new school here on the Council website.
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Extremely misleading comments from Alison Connelly. The selling of Common Good land constitutes disposal, and disposal is already covered by the legal provisions of the 1973 Local Government Scotland Act. This case relates to appropriation, the change of use of the land by the Council whilst still retaining ownership, and has no bearing at all on disposal. Also the Bill is explicitly defined as only applying to part of Portobello Park, so the status of any other Common Good land is unaffected.
This case hinges on the powers Local Authorities have and haven’t in relation to Common Good. There are two types of Common Good, alienable & inalienable. When it comes to alienable CG a Council’s ability to dispose of (sell) or appropriate (change the use of) is largely unfettered: alienable CG is pretty much the same as any ordinary assets save for accounting differences. When it comes to inalienable CG, as Portobello Park is considered to be, it is legally possible to dispose of the land under section 75 of the Local Government Scotland Act. An application to the Sheriff Court or Court of Session could be made and, if convinced of the merits, the court could authorise the disposal. Indeed there are examples of exactly that.
However, the ruling from the Inner House in this case established that there existed no legal powers to appropriate or change the use of inalienable CG. The merits or otherwise are irrelevant: it simply can’t be done.
This Private Bill seeks a remedy to that by redefining part of Portobello Park as alienable for the purposes of education, but inalienable outwith that, the land will remaining as Common Good.
Now as the area in question is a defined part of Portobello Park the Bill can’t directly affect any other Common Good land, and even if the suggestion is an indirect effect, that effect can’t be to make it easier for Councils to sell such land. This case only concerns appropriation, and the legal situation regarding disposal, covered by existing legislation, would not be affected in any way. It’s highly misleading to suggest otherwise.
What a one sided news article. I thought reporters were supposed to check their facts and get both sides of the story. Do you work with PPAG – the small group of individuals preventing the high school that a majority of the community wants on Portobello Park? 76% of Portobello wants the school on the park for the common good of the community. The private bill only has an impact on this piece of land not others. This group of nimbys would love everyone to think it had broader implications for other common good land, but it is simply not true.
That the Portobello Park Action Group “find it very strange that a new planning application has been submitted for Portobello Park when it is currently illegal to build on the land” is itself very strange.
The ruling of the Inner House established that there was no legal means to appropriate the park for building the school regardless of merit: it is simply illegal.
However,the whole purpose of the Private Bill is to make it lawful to build the school on part of Portobello Park. The Council hopes that the Private Bill is successful and that it can be completed before the existing Planning Permission expires in February next year. As a precaution, given unavoidable uncertainty about just how long the Private Bill process might take, the Council are seeking to renew Planning Permission so that, should the Bill be successful but take longer to complete, Planning Permission will still be in place to allow construction to proceed as soon as possible. As the legal issues surrounding what can be done with Common Good land are an entirely separate consideration from planning considerations, the two processes are essentially separate.
So, regardless of whether someone supports or opposes the proposal to build the school on the park, there shouldn’t be anything strange or confusing about the Council seeking to renew Planning Permission. Given that that the park remains their preferred option as a site, and that they’re seeking to deliver the new school on that site, their actions are perfectly comprehensible.
It’s also untrue that “the Court of Session ruled in September 2012 that Portobello Park is inalienable common good land”. A moot point perhaps, but the Courts have at no point been asked to rule on whether the Park is in fact Common Good land at all.
As to the following: “It is inconceivable why the council would continue to waste money to pursue these plans, especially when alternative sites are readily available.”
The costs of progressing the Private Bill have been estimated at around £60,000. Should the Private Bill be unsuccessful then obviously that money will have been wasted.
But what Alison Connelly omits to mention is that the alternatives identified, alternatives that are inferior as sites, are estimated to be between £5,900,000 and £6,700,000 more expensive to deliver. It would also take years longer.
It’s unclear how, pursuing the school on the best site at lowest cost, in the quickest possible time-frame, is a waste of money compared to pursuing the school on a worse site, in a longer time-frame, at the additional expense of several million pounds. Several million pounds that would otherwise be invested in Edinburgh’s school estate.
Seriously, no matter how much someone might disagree with the Council pursuing these plans, there’s nothing at all inconceivable about their actions. It’s perfectly comprehensible given their view of the park as the best possible site. A view that appears to be widely shared within the local community given the results of the Private Bill consultation that indicated support outnumbering opposition by more than three to one.
It’s also completely untrue that “The parliament’s own legal experts reviewed the case and found that the park is indeed inalienable.”
Parliament has it’s own legal advisers who have looked at the proposed bill, but the suggestion they’ve “found that the park is indeed inalienable” is pure invention.
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