The Scottish Parliament today passed the City of Edinburgh Council (Portobello Park) Bill. The Bill provides the Council with statutory authority to appropriate part of Portobello Park for the purposes of building a secondary school.

Previous blogs on the background to the case can be found here.

The private Bill was introduced by the Council in order to overcome a legal ruling by the Court of Session that as the Local Government (Scotland) Act 1973 was silent on the question of appropriating inalienable common good land, the Council therefore had no power to do so. This Bill provides the Council with that power.

It remains a curious feature of this long saga that at no stage has any court ruled on whether the parkland is common good in the first place. Its status was always simply an uncontested claim by both parties to the Court of Session action. The Bill thus opens in Section 1(1) by declaring that the whole of the park is alienable common good land. it is believed that this is the first time that any Statute has made such a declaration.

The City Council media release is here.


The City of Edinburgh Council has advertised its intention to introduce a Private Bill to enable it to build a new Portobello High School on part of Portobello Park. This follows a meeting of the Council on 14th March which agreed to this course of action as outlined in the Council paper for the meeting. See earlier posts for background to this controversial project (select “Portobello” from blog categories on right).

On 12 September 2012, in a case brought by Portobello Park Action Group (PPAG) against the Council, the Court of Session ruled that the Council did not have the legal power to appropriate (to use for another purpose) any of Portobello Park for the construction of a school. The reason was that the park was deemed to be inalienable common good land. I remain skeptical as to whether in fact the land is indeed common good of any kind (see this post in particular) since no court has ever ruled on the matter, it being simply an uncontested assertion by both PPAG and the Council. But this point is academic now.

It is proposed that the private bill the legislation should “reclassify Portobello Park as alienable common good land for the purposes of Part VI of the Local Government (Scotland) Act 1973, but only in so far as permitting the appropriation of the Park for the purposes of the Council’s education authority functions.

This is an interesting approach since the normal way of removing any common good restrictions from land is simply to declare that the land in question is no longer common good. This is what has happened in the case of the markets and slaughterhouses which were declared to no longer form part of the common good in Section 145 of the Edinburgh Corporation Confirmation Act 1967. (1.7Mb pdf). Similarly, the National Galleries of Scotland Act 2003 simply removed the statutory restrictions on building on the common good land of East Princes Street Gardens.

Were a similar approach to be adopted in the case of Portobello Park, a private bill would simply remove the site for the new school entirely from the common good (whilst perhaps at the same time confirming or dedicating the remainder of the park as inalienable common good). Perhaps the Council has decided that by affirming the whole park as alienable common good and seeking specific permission to appropriate a part solely for education, the bill will be better received by MSPs for whom removal of the site from the common good might be seen as a step too far. In this respect it is worth noting that the 1967 Act received little if any scrutiny from the citizens of Edinburgh, it being debated and passed in a faraway Parliament in London.

The private bill is to be introduced to Parliament on or around 22 April 2013.

The City of Edinburgh Council is consulting the citizens of Edinburgh about whether it should promote a Private Bill in the Scottish Parliament to build a new Portobello High School on Portobello Park. As previous posts have discussed, the Court of Session has ruled that it is illegal to construct the school on the park because it is (allegedly) inalienable common good land (see previous posts here and here).

The residents of Portobello are thus engaged in two energetic campaigns.

The “yes” campaign – New Porty High – has published a very smart website and produced the rather engaging video (further details here).

The “no” campaign is run by Portobello Park Action Group. It has not produced a video (yet) but is no less energetic.

The consultation runs until 31 January 2013 and is open to all residents of Edinburgh. Somehow I doubt there will be much of a break for Christmas or Hogmanay.

08. December 2012 · Comments Off on Is Portobello park common good (2)? · Categories: Common Good, Democracy, Edinburgh, Legal affairs, Portobello

By way of introduction to this blog, I should stress that I have no interest one way or the other in whether Portobello Park is common good. I am, however, interested in the law relating to common good and this case is interesting. Previous blogs contain background to the story (including 22 Sep 2012 which examines whether the park is common good).

On 5 December2012, Edinburgh Council published the legal advice it obtained in November 2012 as to whether Portobello Park forms part of the common good of Edinburgh or not.

The question as to whether the park forms part of the common good was not put at issue in the Court of Session cases. Both Portobello Park Action Group and the Council both agreed that it is common good. The fact remains, however, that only a court can answer this question and to date none has. The illegality of building a school on the park rests upon the presumption that the land is common good.

I am not legally qualified but I have been in and around common good issues for the best part of a decade. I am going out on a limb here in querying the opinions of a prominent Edinburgh law firm and a QC. I do so, however, in the full knowledge that I may be proved wrong. Anyone who thinks I am wrong is welcome to says so by commenting on this post.

BACKGROUND

Portobello Park was acquired in order to fulfil the statutory obligations contained in Section 74 of the Edinburgh Extension Act 1896 which stated that,

”The Corporation shall, within seven years from the passing of this Act, acquire, dedicate, and thereafter maintain for public use a public park or recreation ground in some situation convenient for the inhabitants of the present burgh of Portobello, and under such regulations as the Corporation may from time to time make.” (see image above)

Following Lady Paton’s ruling in the Court of Session on 12 September 2012 that the Council could not build a school on the park because it was “inalienable common good land”, the Council has since been exploring ways of overcoming an outcome that they view as “extremely disappointing and entitrely unexpected”. At the Council meeting on 25 October 2012, Councillors agreed to explore afresh the question of whether the park was common good. Brodies were asked for their view and they, in turn sought advice from Gerry Moynihan QC. The advice was reported to the Council on 22 November 2012 and published on 6 December 2012.

The legal opinions both conclude that the park forms part of the inalienable common good of Edinburgh. In so far as both opinions derive from a mis-reading of two leading common good cases, I argue that they are flawed in coming to this view.

BRODIES OPINION (link here)

Brodies argue that the Magistrates of Banff vs Ruthin Castle SC36 1944 case provides the litmus test of whether land is common good or not. This is correct. Moreover, the test has most recently been upheld in Wilson v Inverclyde 2003 SC 366.

Lord Wark in the Ruthin Castle case observed that.

“…there was in the end no dispute between the parties that all property of a Royal Burgh or a Burgh of Barony not acquired under statutory powers or held under special trusts forms part of the common good” (my emphasis)

Brodies reference and articulate this view (para 4.2) that assets are not common good if they are held in a trust or if

(ii) they were acquired or dedicated by the Burgh for specific statutory purposes or specific statutory powers …...” (my emphasis)

But Lord Wark said nothing about “dedication for statutory purposes” in the Ruthin Castle case.

Brodies then go on to review the documentation surrounding the acquisition of the park before turning to their analysis of the matter. At paragraph 6.1.1 they argue that,

the initial assumption is that the Property is assumed to be Common Good unless (i) it is held in a specific trust; or (ii) it has been acquired or dedicated for specific statutory purposes or powers.” (my emphasis)

Again, however, Lord Wark says nothing of the sort.

Brodies proceed to argue in 6.1.3 that the wording of the 1896 Act “dedicate and thereafter maintain for public use a public park … would, on the face of it, appear to be a clear obligation .. to dedicate the property to common good use.” They further argue that “we are of the opinion that Section 74 could be seen as a statutory provision requiring the purchase of land specifically for the common good” although “we are not aware of any court authority that either supports of contradicts this view.”

They conclude in para. 6.2 that “the property became common good when it was purchased..We cannot, however, be certain of this – the law relating to common good is, unfortunately, sparse and largely historic in nature.”

Brodies thus proceed from an erroneous interpretation of Ruthin Castle (which never said anything about dedicating land to common good) to conclude that Section 74 represents an obligation to dedicate the land as common good and thus its acquisition is a statutory provision requiring the purchase of the land for the common good.

Section 74 obliges the Council to dedicate the land for use as a park but does not oblige them to dedicate it as common good. The term common good is never once mentioned in any of the paperwork surrounding the transaction. Indeed the Ruthin Castle test makes clear that statutory acquisitons are by definition not common good. I know of no case where any statutory power has been used to acquire land for the common good (though there are statutes that remove land from the common good).

The Brodies Opinion starts out from an erroneous interpretation of Lord Wark’s words and concludes with the novel idea of the statutory acquisition of land for the common good – an oxymoron as far as the Ruthin Castle case is concerned.

GERRY MOYNIHAN QC (link here)

Gerry Moynihan QC also proceeds from an erroneous interpretation of a leading judgement. In a series of ten short paras (4-13) that contain little by way of detailed argument, he asserts that “Dedication to public use is the paradigm indicator of common good land: Lord Maclean in Murray vs Mags of Forfar (1893) 20R 908 at 918-919.” (para. 8)

He then concludes (para. 13) that “the default positon applies here: the park is part of the common good of the council” and concludes that the common good is inalienable.

There are three problems with his argument. The first is that he does not even cite the Ruthin Castle case. The second is that he appears to think that the statutory powers test relates to how land is held and owned by a Council on an ongong basis (see para. 7 for example). It does not. It relates to how land was acquired (a point which he actually acknowledges in para. 7 where he notes that the land was acquired “under the Edinburgh Extension Act 1896, Section 74″).

It is the third problem, however, that is fatal to his argument.

Lord Maclean in the Magistrates of Forfar case did not say that dedication to public use is a paradigm indicator of common good land. Murray vs Magistrates of Forfar (in which dedication to public use was indeed a critical issue) was not a case that sought to define common good land. It was a case concerning whether land which was indisputably common good was alienable or inalienable. In other words it was a case about the classification of common good and not about whether land was or was not common good in the first instance.

Brodies and Moynihan also discuss (having concluded that the park is common good) whether it is inalienable common good as opposed to alienable common good.

CONCLUSION

Both Brodies and Moynihan appear to misunderstand the two leading cases of Ruthin Castle and Magistrates of Forfar and proceed on this basis to conclude that the park is common good (and then further that it is inalienable). I concede that if the park is indeed common good then the arguments that both make about inalienability are probably correct. But I reject the reasoning adopted to classify the park as common good in the first place since it proceeds on a false premise.

The park was acquired using a very specific statutory power to acquire land for a park.  Admittedly this opens up the very interesting question posed by Andrew Ferguson in his book Common Good Law (Avizandum, 2006) in which he points out the difficulty in common good definition in cases where statutory and common good purposes appear to coincide.

More extreme difficulties of proof will arise, of course, in relation to the types of statutory purpose which could also be said to be common good purposes, such as the provision of public recreation spaces, and there the burden of proof might be said to shift towards showing that the property had not simply fallen into that public use rather than having been specifically acquired under statutory purposes using rates income for that purpose.” (page 83)

If Ferguson’s line of reasoning were to be followed, I suspect a court would rule that Portobello Park is not common good.

To conclude, these two opinions may well be correct. I don’t know since only a court can resolve this question and it has never yet been faced with this particular set of circumstances. What I do assert, however, is that in reaching the views they have, both opinions rely on a misreading of existing cases. If read correctly, the Ruthin Castle case suggests that Portobello Park is not common good since it was acquired using a very specific statutory power. The fact that Section 74 mandated the council to then “dedicate” the park to be used as a park would make the park inalienable common good only if the land was already common good.

As a coda, I am intrigued by the claim in Brodies opinion that such is the strength of Gerry Moynihan’s opinion (that the land is inalienable common good), that “he has confirmed he would decline to act for the council should it seek to assert that the Property is not Common Good or that it is not inalienable Common Good.” (para. 6.5)

It is an important principle that an Advocate “should not, when available to accept instructions, refuse to accept instructions to act for any litigant” (Fifth Edition of the Guide to the Professional Conduct of Advocates, Section 8.3). I am unclear what exceptions contained in Section 8.3 to this general principle could apply that would support such a refusal.

I do not know whether Portobello Park forms part of the common good of the City and Royal Burgh of Edinburgh. Portobello Park Action Group (PPAG) do not know whether the Park is common good and the City of Edinburgh Council do not know either. Nobody knows in fact and only the Courts can rule on this matter. It is one of the stranger aspects of this case that this vital question has never been resolved since the current legal impediment to building a school on the park is predicated on the assumption that the park is common good.

PPAG asserted that it was common good and when I first looked at the title deeds of the land in May 2006, it certainly appeared that there was a prima facie case that it was. The Council initially refuted the assertion but in a paper to Council in January 2008 (in which the whole question of common good was discussed), it was asserted (on page 2) that “Facts and circumstances indicate that Portobello Park is common good”

In the two Court of Session cases on the matter, both parties (PPAG and CEC) agreed that Portobello Park was inalienable common good. I do not know the basis upon which they reached that conclusion but evidence unearthed in the last week suggests that both parties were wrong to arrive at such a view without testing the matter in Court. In all my work with communities on matters of common good, I always advise them to conduct sufficient research to establish a high degree of confidence in their own minds that any land at issue is in fact common good. I do not know how confident PPAG were in their view and I am at a loss to understand why the Council took the view they did.  So what is the evidence that Portobello Park is not common good?

 What is Common Good?

Before outlining the argument, it is important to note the broad definition of what constitutes common good which was first articulated in an Inner House decision by Lord Wark in the case of Magistrates of Banff v. Ruthin Castle Ltd. SC36 1944 at 384 in which he observes that,

“… there was in the end no dispute between the parties that all property of a Royal Burgh or a Burgh of Barony not acquired under statutory powers or held under special trusts forms part of the common good.”

This view of what constitutes common good was most recently upheld in the Inner House of the Court of Session in the case of Wilson v. Inverclyde 2003 (for example Lord Drummond Young at [4]). Thus, if it can be shown that the land on which Portobello Park is located was acquired using statutory powers, then it cannot form part of the common good and Lady Paton’s decision has no relevance. What then is this evidence?

Portobello Park

Portobello Park was acquired by the Lord Provost, Magistrates and Councillors of Edinburgh as part of the negotiated agreement to merge the burghs of Portobello and Edinburgh. The merger was given statutory force by the Edinburgh Extension Act 1896 which incorporated the agreement to create a park into section 74 of the Act.

 “The Corporation shall, within seven years from the passing of this Act, acquire, dedicate, and thereafter maintain for public use a public park or recreation ground in some situation convenient for the inhabitants of the present burgh of Portobello, and under such regulations as the Corporation may from time to time make.”

On 20 July 1898, at a meeting of the Sub-Committee of the Lord Provost’s Committee, it is minuted that.

“The Sub-Committee have carefully considered the provision of a Public Park at Portobello. They have through the Town Clerk been in communication with the Agents of several proprietors of lands in the District. They have carefully considered the offers made and they are of opinion that a field extending to 56 acres or thereby on the estate of Sir James Miller of Manderston and situated to the south of the Railway Station would be a most suitable one for a Public Park. It can be acquired at the price of £25,000 and the Sub-Committee recommend that the Town Clerk should be authorised to accept the offer and to adjust the conditions of sale.”

By feu disposition of 12 November 1898, this land was acquired from Sir James Miller by the Lord Provost, Magistrates and Council of the City of Edinburgh. It contained the following condition.

“That the area or piece of ground hereby disponed shall be used exclusively as a Public Park and Recreation Ground for behoof of the Community of said City and it shall not be competent to nor in the power of my said disponees or their foresaids to erect or build or give liberty to any person or persons to erect or build houses or buildings of any kind whatsoever thereon except buildings to be used as a house or houses for the Park Officers and Gate Keepers to be employed by my said disponees or for other purposes appropriate to the uses of the area or piece of ground hereby disponed as a Public Park or Recreation Ground.”

These 56 acres were therefore acquired as a statutory obligation under the 1896 Act. But did the Council actually invoke statutory powers to buy the land? Arguably Section 74 of the 1896 Act is precisely that – a statutory power to acquire land for a park. But the Council could also credibly argue that it was using other statutory powers.

Section 58 of the Public Health (Scotland) Act 1867 provides that,

 “The Local Authority may provide, maintain, lay out, and improve grounds for public recreation, and support or contribute towards any premises provided for such purposes by any person whomsoever..”

Chapter 8 of the Public Parks (Scotland) Act 1878 gave powers to Local Authorities to “provide and maintain public parks and pleasure grounds..”

And Section 233 of the the Edinburgh Municipal and Police Act 1879 provides that the Magistrates and Council may,

 “…purchase, feu, lease, or otherwise acquire by agreement such lands in or adjacent to the burgh as they shall think suitable for public parks, gardens, and bleaching greens, drying greens, and grounds, and open spaces for the erection of public buildings, public wash-houses, baths, and gymnasiums, and other works of a permanent character, and such general improvements as may be conducive to the amenity of the burgh and the promotion of health, convenience, and recreation of the inhabitants, and lay out, form, and maintain such works and improvements, all proper and necessary access thereto, and support or contribute towards the support and maintenance of grounds provided for such purposes by any person whomsoever ……”

All of these Acts provide evidence that the land was bought from Sir James Miller using statutory powers conferred on the Council.

Where did the money come from?

In 1905, Thomas Hunter, the Town Clerk and Robert Paton, the City Chamberlain published a book entitled “Report on the Common Good of the City of Edinburgh”. Their remit, of 29 July 1902, was to “prepare and submit a report .. upon the Common Good of the City, its sources, of what it consists, its purposes, and the expenditure met from it during the past five years..”

The report presents the detailed Common Good accounts for the years 1894 to 1904. No common good funds were used to acquire the park. Instead, the £25,000 for the purchase of the park came out of the Capital Expenditure account of the Police Accounts of the City 1898-99. (1) Moreover, on a large, elegant map which shows the various common good properties in the City shaded different colours according to their origins, Portobello Park is marked as a park but not included as part of the common good.

What does this mean?

The above evidence of statutory powers and money coming from the Police Account suggest that Portobello Park is not, in fact, common good. Although at present nobody can know for sure, it is of such fundamental importance that it should perhaps be settled as quickly as possible.

Standing against the argument presented above is the fact that the Park was dedicated to public use as a park. Might this fact confer common good status? I know of no instance where this has been the case although dedication to a particular use is a factor in deciding whether or not common good land is alienable or inalienable. (2) It is therefore uncertain what legal weight would be given to this fact. If the park is common good then clearly the Court of Session decision stands but if it not, then the decision has no relevance.

How might this question be resolved? I am not a lawyer but I would have thought that a declarator in the Sheriff Court would be the route to take.

Who could take such an action?

Anybody who wishes to.

NOTES

(1) The term “police” in this context and “police burghs” has nothing directly to do with the Constabulary but is derived from the Greek word politeia, meaning the administration or government, especially of a city (polis).

(2) See Murray v. Magistrates of Forfar 1893 20 R 908, 1 SLT 105

FURTHER – 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.

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

I was quoted in the Evening news yesterday as arguing that if the people of Portobello decide that Portobello Park is the best site for a new school, then the Court of Session ruling could be countered by a “Private Act of Parliament”. Some confusion has arisen as to what I meant because of a difference between the terminology used by Westminster and Holyrood.

The UK has its own terminology. Private and Personal (the term used after 1948) relate to legislation covering private affairs. A list of the Acts passed between 1539 and 2006 is listed here. Local Acts are legislation promoted by an organisation in order provide specific powers to, for example, build roads, railways canals, harbours etc. A full list since 1797 can be found here. The Scottish Parliament calls all Private, Personal and Local Acts “Private Acts”. Further details can be found here.

Over the years, a number of Local Acts have been passed dealing with the affairs of Edinburgh. Many of these are relevant to the debate over the Waverley Market with clauses dealing in great detail with the use and function of land in the city. Other clauses deal with the display of registration certificates for hairdressers, ear-piercers and electrolysists (Section 18 of City of Edinburgh DIstrict Council Conformation Act 1991). Section 22 of that Act deals with buildings in certain parks in Edinburgh.

This is the kind of legislation that could be used to permit the construction of a school in Portobello Park. For interest, I have included links to some extracts of these Local Acts (which relate to Waverley Market).

Edinburgh Corporation Order Confirmation Act 1933 includes s.278 permitting the Council to make alterations to the Waverley Market including very precise measurements (not be at a greater distance than 880 yards – s278(2))

Edinburgh Corporation Order Confirmation Act 1967 which includes the provision in s.145 that “The markets and slaughterhouses shall cease to form part of the common good.” This is an example of legislation over-riding centuries of case law on the definition of common good.

City of Edinburgh District Council Confirmation Act 1991 referred to above.

National Galleries of Scotland Act 2003 which repealed the restriction contained in s.22 of the 1991 Act (referred to above) relating to Princes Street Gardens.

The town where I grew up. Kinross Town Hall forms part of the common good of the people of Kinross and yet lies derelict and abandoned due to the incompetence of Perth & Kinross Council.

I have received a number of emails from people in Portobello who have queried my commitment to the cause of the common good of Scotland’s burghs. They complain that I have “switched sides” and that they “deeply regret my involvement in the issue”. These are people with whom I have developed a mutual respect over the years. I am sorry if they feel that I have somehow betrayed the cause of Common Good. In this post I want to explain exactly what I do think. Feelings are running high on both sides of the debate over a site for a new Portobello High School and the future is uncertain for everyone. But I remain as dedicated to restoring Scotland’s common lands to their rightful place in Scotland’s communities as ever and continue to work with many people to this end.

In a typical case in Scotland, folk are trying to reclaim control over common good land that is now the responsibility of a Council that takes in many former burghs. So, for example, Kinross, Dumfries, Forfar, Leven etc. are are now all subsumed into much larger local authority areas. In all of the cases I have been involved in, a small number of people are fighting an at times heroic battle to seek redress for past wrongdoings. One such is the late John Wilson of Greenock interviewed here who sadly passed away in 2011. His struggle is immortalised in Wilson vs Inverclyde 2003 and I wrote a short blog following his death.

These cases all involve attempts to identify and secure the proper administration of common good land against an often hostile and obstructive local authority. History is full of legal cases where citizens have gone to court to challenge Councils that have exceeded their powers (e.g. Murray v. Magistrates of Forfar 1893) or to protect their common good from a successor local authority to the Town Council (e.g. Cockenzie & Port Seton Community Council v. East Lothian District Council 1997).

My basic position is that I believe that the people of Kinross, Maybole, Langholm and such places should be the ones who are in charge of their common good and take decisions about how it is administered. Thus when I was originally asked for advice in relation to Portobello Park I willingly gave it to those who asked. Since 2006 PPAG have asked for advice on occasions and I have done my best to provide what assistance I could.

Until April 20102 (when I signed the petition asking PPAG to drop their appeal) I never took a view on whether there should or should not be a school built on the site. I have always been of the view that this is a matter for the people of Portobello. I still hold that view. At the moment there are those opposed to building  a school in the park, those in favour, and a lot of people who have never expressed an opinion.

Common good law evolved over centuries to protect the interest of citizens against often corrupt, nepotistic and undemocratic Town Councils. Such protection is still needed today 30 years after Scotland’s 196 burghs lost their local government because for 192 of these 196 burghs, decisions are not in their hands but in the hands of a much larger Council elected and accountable to people in other burghs in Fife or Angus for example. But where a community clearly wishes to do something with it’s common good and the Council agrees, the law should be there to facilitate this not to prevent it. Equally the law should be there to stop the Council over-riding the rights of the citizens. The law in this case is doing neither.

It follows that IF …… IF the people of Portobello wish to build a school in the park, they should be able to do so. If they don’t wish to do so, then that’s fine too. There is no point, however, in common good law which prevents a community doing what it expressly wishes to do.

At the moment, we don’t know what the people of Portobello think. Those opposed to the school in the park have spent a lot of time and money on a successful legal challenge. But, equally there are others more determined than ever to press ahead. There remain a number of options for doing so.

And that is why I believe that the residents of Portobello should be given the chance to express their view on the available options in a referendum.

Neil King (a retired lawyer) has drafted a bill – the Local Government Amendment (Common Good) (Scotland) Bill – to amend the Local Government (Scotland) Act 1973 to remedy what he considers to be a deficiency in the drafting of the Act that meant that the Inner House of the Court of Session had no option but to uphold the appeal by Portobello Park Action Group. He suggests,

“that the omission of the words “or appropriate” from section 75(2) of the Local Government (Scotland) Act 1973 is a pure drafting error and is it credible that Parliament meant to provide a mechanism for the outright *disposal* of inalienable common good but not for the lesser step of retaining it for an alternative use?”

He has written to Keiza Dugdale MSP as follows,

“Dear Ms Dugdale

I gather there is talk of a private act of parliament to authorise the construction of a new school on Portobello Park in the wake of the Council being blocked by the Court of Session decision.

I personally feel that private acts are effectively saying “change the law for me” whereas the law should only be changed for the benefit of everyone.

Also, it could set a dangerous precedent in that, each time someone comes up against a legal obstacle, they might be tempted to say “Oh well, no problem, we’ll just get a private act of parliament!”

I think there is a preferable solution which avoids these criticisms and is just as simple. It is a public act to amend the general law relating to all common good (not just Portobello Park) to remove the obstacle highlighted by the Court of Session in its recent judgement. In this way no other communities could find themselves thwarted in the way Portobello has and find themselves having to promote private acts.

As I’m sure you know, the nub of the court’s decision was that, the Council having conceded that Portobello Park is inalienable common good, section 75 of the Local Government (Scotland) Act 1973 gives the Council power to dispose of the park if it obtains the consent of the court (which may impose conditions) but not to “appropriate it” – i.e. retain it but change its use (with court consent).

That is indeed what the section says but it must have been a drafting oversight because it seems inconceivable that Parliament intended to provide a mechanism for the disposal of inalienable common good but not for the less extreme step of retaining it but changing its use.

And as someone observed, what could be a more fitting use of common good than its retention by the Council for the building on it of a school for the benefit of the local community?

Hence what I think is required is a very short (public) act to amend section 75 to add in references to appropriation (retention and change of use) alongside the references to disposal. I have drafted a bill and attach it for your use in case you wish to promote it as a private member’s bill. If it would help, I’d be happy to draft an explanatory note and policy memorandum to accompany this bill.

Regards

Neil King
CC. Kenny MacAskill”

This information is derived from posts by Neil King at 1500 today on the Talk Porty Forum.