The proposed Portobello High School

The fallout from the Portobello Park decision (see previous post) has got me thinking. For a long time I, along with others, have been working to secure better protection for common good land and property in Scotland. This has mostly involved working with communities in small towns in Scotland to defend their interests against remote and distant decision making in a faraway place where the Council HQ is based. This work brought me into contact with those in Portobello who have been campaigning against building a school in Portobello Park. I first met them at a public meeting in Cupar in April 2006 and agreed to provide advice and assistance as I do to all who are concerned with common good matters. I consciously do not take sides in local disputes but the Portobello Park is different.

Virtually all the cases I have been involved in concern a local community that wishes to decide for itself  how common good land should be managed and used. This is hardly revolutionary since this is the land that they once held title to and manage before the Town Councils were abolished in May 1975. Portobello, however, is the first instance where the community and the Council all appear to be agreed that a school should be built on the park and the ones seeking to defend the common good land are in the minority. Their tenacity in this case has provided a very useful clarification of common good law but at a huge price to community cohesion and the future of children and their education in Portobello. In short, I find myself welcoming the legal decision because it clarifies the law but at the same time lamenting the outcome because I believe that this is a good site for a new school.

The wider lessons I think are twofold.

Firstly, the law on common good is complex and in some cases perverse. As Neil King comments in the last post, 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“? No land should be frozen for ever by events of decisions taken centuries ago. Of course, it is important to have arrangements whereby the Council cannot, for example, contemplate building a new headquarters on the Meadows in Edinburgh. Common good law needs to be brought up to date and provide greater clarity about what it is trying to achieve. Above all, where a community expresses a clear desire to do something different with common good land through a referendum or resolution of the Council, then the community should have the legal powers to pursue their desired ends. Of course, in this case it should really be the community of Portobello who make the decision and it was their incorporation into Edinburgh in 1896 started this whole saga since the park was acquired for £25,00 as part of that agreement.

Secondly, and following on from the above, we need to restore local government and local democracy in Scotland. This will form part of a proposed new bill I hope to develop to secure a future for common good. It really is better that decisions about common land in Kirkcaldy are taken by the people of Kirkcaldy through open, transparent and participative democratic processes. If this were to happen, it might not matter so much whether land is common good or not. Deciding where a new school should be sited should not be that difficult a decision. Unfortunately that has not been the case in Portobello due to the unfortunate juxtaposition of a legal framework that is not fit for purpose, a Council that ignored all the signs of trouble brewing and the determination of a small number of people to protect their greenspace/property values (delete as appropriate).

Meanwhile there are solutions available. A private Act of Parliament seems the best option and was the means by which the National Galleries of Scotland obtained a small part of Princes Street Gardens to build a new cafe. This would take a year or two to achieve. Alternatively there are legal appeals available to the Supreme Court possibly on the grounds raised by Neil King.

Meanwhile none of this helps to heal the divisions in Portobello or to give the young people of the town the kind of excellent school facilities that they all deserve.

UPDATE OR (and here’s a thought), the Council could go to the Sheriff Court to seek authority to dispose of the land to a third party (say the Portobello Education Foundation). Remember, the law states that it cannot USE the land for another purpose while it remains in its ownership but it can (if approved by the Courts) sell the land. If this is successful the Council then takes out a 175 year lease of the land and builds the school.

2 Comments

  1. 1. A private act of parliament is effectively saying “Change the law for *me*” whereas, IMO, the law should only ever be changed for the benefit of *everyone*. Thus, if I were an MSP, I would vote against a private bill to allow a school to built in Portobello Park as a matter of principle whereas I would vote for a public bill to allow *all* inalienable common good to be appropriated to alternative uses with the consent of the courts because I happen to believe that is in everybody’s best interests.

    2. Portobello has shown common good up for a rusty old blunt instrument relic from the past which is of little relevance to modern circumstances. Instead of tinkering about with it, I’d abolish it altogether. After all, why entrust decision making about its future to the (unelected) judiciary in preference to the (elected) local authority?

    3. If Edinburgh Council got planning permission for it and due process was gone through then why shouldn’t it have a new HQ in the middle of the Meadows? By suggesting otherwise, you’ve instantly become guilty of seeking to “freeze land forever”.

    4. The wheeze in your UPDATE crossed my mind as well but there’s a risk the courts might see it for what it is, namely, a sham transaction designed solely to sidestep the clearly declared law and thus not permissible. If I were a councillor, I’d be extremely queasy about backing another round of battle in the courts with no certainty of success.

  2. The issue of common land has great broad appeal. How do we advocate for better education when we fail to connect with the ones who need education, listen to their point of view and reflect together?
    My feeling is that because everyone sits in their ivory towers judging and writing off their own bat, we do not connect with under educated adults or young people who need guidance.
    Adults have to evoke a way to share what they know, and find ways to lead those whose lives are in a mess out of that hideous situation. It cannot be done seperately – so is the the lead afforded by Andurati Ria in India’s current upsurge against nuclear reactors a sign for us to be more demonstrative in an every day context?
    By that I mean makenig sure that increasingly we do respond in an open way to everyone around us in order to progress community and never ignore what needs to be doing. Only by feeling ‘together’ as a community can we take sensuible steps out of a communal understanding and new democracy.
    How Often is the lone voice stirring up hatred wierdly the one of a maniac? Sadly such disturbed individuals take their agressive toll on society with frenetically violent attacks – these are the fault of a fragmented distorted community, too sad about the present to reflect on the past; too hopeless about their personal pasts to forgive and forge new links – and in speaking a second time to amusician I met a week ago on a trainstation platform, in her town of Canterbury, I suddenly noticed the absolutely beautiful stone fountain in the park there that had been pouring its water for years without a second glance from me. Mynoticing easily was not the only one – my eye captured the view and spied other people also giving the fountain a more than second glance. In fact unconsciously it inspired me to make the decorative fountain I worled on for months in Greenwich community college in 2009
    We aren’t pinioned by friendship into little dead mice, we are inwardly attacked by our own doubts and fears every day. It’s the tiny ‘I can’t's@ that demoralise us, the innner consultant that says this isn’t businesslike – when the business of life is only to live, only that, nothing more.