Pictured: Holy Cross High School, Hamilton, South Lanarkshire.

The fallout from the Court of Session decision on Portobello Park rumbles on (see previous posts). The ruling that Edinburgh Council cannot “appropriate” (i.e. use for another purpose) inalienable common good land exposes common good law as flawed in its practical consequences. Consider the following three situations.

ONE
Lady Paton ruled that the City of Edinburgh Council has no statutory power under the Local Government (Scotland) Act to appropriate inalienable common good land. Such a course of action is simply not provided for under the Act and thus she struck down the Council’s decision of 26 April 2012 to appropriate part of the park as ultra vires (beyond its powers).

TWO
There are, however, statutory provisions covering the disposal of inalienable common good land by a local authority. Thus if Edinburgh Council wanted to sell part of Portobello Park, they could seek the Court’s permission. This may not be granted of course but the avenue is nevertheless open to make the request for disposal … but not for appropriation.

THREE
The Portobello decision took many by surprise because in two previous cases in South Lanarkshire and North Lanarkshire, the local authorities proposed to build new schools via a Public-Private Partnership (PPP). They petitioned the Court of Session for consent to dispose of the land under s.75 of the 1973 Local Government (Scotland) Act but in both cases the applications was dismissed as unnecessary because the proposals did not amount to a disposal – merely appropriation. There was no provision in the 1973 Act regarding appropriation and therefore the Court had no locus. As a consequence they never ruled on whether appropriation was lawful. A written judgement is available only for the North Lanarkshire case.

I don’t know about North Lanarkshire but the South Lanarkshire school – Holy Cross High School in Hamilton was then built (pictured above). Interestingly the Special Planning Committee report of 22 August 2005 notes at (5.1) an objection that the land was common good. The report states that “An application to the Court of Session to have the restriction removed from the application was successful.” (I do not think this is true – the only case is the one noted above and it ruled simply that the Court had no locus). Had this objector opposed the Council’s appropriation of inalienable common good land in the Courts, he or she would have won and the Court would have ruled that the decision of the Planning Committee was ultra vires and struck it down – just as Lady Paton did in Portobello. But no-one sought a judicial review of the decision.

And because of that absence of challenge, the school was built.

So is the school illegal?

All of which is to say by way of conclusion that if inalienable common good land is meant to be afforded maximum legal protection, the law has a funny way of going about doing so when three scenarios can throw up three different outcomes.

NOTE – as with all blog posts of a legal character, as a non-lawyer, I am happy to be corrected on any of the facts or opinions expressed.

UPDATE – minor edit 2308hrs

7 Comments

  1. Could be somebody with a grudge……or a legitmate complaint, has just been handed a belated xmas present.
    Perhaps Diana Cairns and co. will show their eco credentials????

    I thought this one would come out of the woodwork. I did not wish to raise it as it would look convenient as a Portobello High supporter. But this really is an absolute mess.

    I spoke to an official at South Lanarkshire several years ago, they would not talk about it, an official at North Lanarkshire though was more than pleased to inform me Portobello had no problem using the CG land. Is there anything to read into this?

    What do they do? Level the school? What an absolute mess. This must be sorted out at the highest level.

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  2. To answer your question. Is the school legal?

    Ask Lady Paton!

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  3. Andy,
    I’m reminded of the consent granted for the contemporary art gallery in Union Terrace Gardens. I’d be interested to know whether common good issues were raised or addressed in that case. Note to self- must check.
    However….
    Provided the land owner is legally notified (though I’ve never been sure how you could do that for ‘common’ land) you can apply for planning permission over any land. Of course you might not get planning permission – though not owning the land would not be a reason for refusal.
    Reading Ian Urquhart’s planning report all the angles seem to have been covered. So while the appropriation might have been challengable I am not sure the planning consent would or could have been struck down. Matters of land ownership have always been treated as separate and subsequent to planning. You can’t build what you’ve been consented if you don’t control the land. Without putting the search engine on the Planning Acts – I don’t remember any special / exceptional provisions for common good land.
    Of course I might be wrong about all this. I am not a lawyer.

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    • Lady Paton was quite clear that only the appropriation being struck down. Planning consent perfectly competent. At [43] ii “Reduction, as ultra vires, of the Council’s decision of 26 April 2012 insofar as relating to the appropriation of inalienable common good land at Portobello Park for use as the site of the new Portobello High School and associated community facilities.”

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  4. The school is “illegal” except there’s nothing now anybody can do about it because any challenge would be trumped by a plea of “mora, taciturnity and acquiescence” (i.e. you’re too late – which is what Lady Dorrian upheld against PPAG at first instance but the Inner House (Lady Paton) reversed on appeal.)

    There’s an interesting bit in Lady Dorrian’s judgement (para [34]) in which, summarising a part of counsel for PPAG’s arguments rather than giving her own view, she says:-

    “Counsel [for PPAG] accepted that in the North and South Lanarkshire cases the court must have proceeded on the basis that an appropriation would go ahead. The consequence is that the cases were rightly decided but led to an incompetent act, overlooked by the court in each case.”

    Far be it from me to disagree with a Court of Session judge, but I wouldn’t go so far as to suggest that the court in the Lanarkshire cases was conniving in or condoning illegal appropriations. After all, courts are only allowed to answer the questions put to them. In the Lanarkshire cases, the question was “Can we have permission to dispose?” to which the answer was “What you’re planning isn’t a disposal so case dismissed.” But a court can’t then gratuitously add “but we see what you’re up to so off our own bats, we’re going to interdict you from appropriating the park.”

    It’s not often that counsel (the same pair as represented CEC at Portobello, note) for a petitioner invites the court invites the court to dismiss their own petition and I believe North Lanarkshire was a sort of half baked arse covering exercise so that, if it came under fire politically, NLC could say “Well, we went to court and they never said we couldn’t …”

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    • Page 96 in Andrew Ferguson’s book says that the in the S Lanarkshire case, the court “gave a strong hint to counsel for the petitioners that if the petitioners were to suggest that this particular use of common good land was not a disposal, it would agree with them.”

      They then broke for lunch and lo and behold, counsel for the petitioners “went back into court and argued just that.”

      You should get a copy of Ferguson’s book. it’s very interesting.

      Reply

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