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.


  1. Who could resist?

  2. I am loathe to interfere in the issues of one part of Edinburgh but the fact is that Portobello is dragging us all into their mess. Therefore it becomes our problem too if a private bill sweeps away the protections that exist on Portobello Park as then no other park in Edinburgh or elsewhere in Scotland will be safe from development. That was the view of Lady Paton in the ‘surprise’ judgement last September and it’s my view too. They have had at least a decade to find a site, why on earth they alighted on a park is just sheer laziness. If they want 3G pitches then they need to look further out of town. Dunblane High School is a fine new school with pitches and it is built on the edge of town where land was available. In their day, all current schools with large sports grounds were built on the edge of the built up area where there was land. In time people were attracted to move to where the school was. To expect that a large slice of land to accommodate a school with not just one, but two 3G pitches right in the heart of a mature built up area is just crying for the moon, and why on earth this plan of building on a park was ever pandered too, beats me.

    Besides which, isn’t there more to education than football? Since when was football the deciding criterion of educational excellence?

  3. Where does Lady Paton make such a statement? Why would she comment on a Private Bill that hadn’t even been suggested at the time of her judgement?

  4. She made the comment that if common good land and public parks were allowed to be built on it would set a precedent that could be copied all over Scotland.

    As regards whether Portobello Park is common good or not (raised earlier by Andy on a previous thread), a matter which neither party had questioned, the City of Edinburgh Council did take legal advice on this point last November and concluded that it was not worth pursuing. Which I take to mean, that they were advised it was indeed common good land. But since this advice was not published, your guess is as good as mine as to what it consisted of.

  5. Whether or not Portobello Park is CGL is really only of academic interest at this stage. A Private Bill, if successful, would allow the school to be built there despite the fact it is common good in this particular case and in these particular circumstances. It doesn’t change the status of the land, it doesn’t set a precedent.

  6. No it is not of academic interest Bob. It is common good land, and moreover it was gifted in perpetuity as a park. How do you define a precedent? ‘A model, a past instance that may serve as an example’. (Chambers). Parks are amongst the most protected green spaces we have. If they can be dispensed with then what hope is there? Up at my end of town we are still seething over Meggetland being built over in the teeth of vociferous protest. Then there is the current concern over Craighouse. Again, some of the most protected green space in Edinburgh. What’s next? The Meadows? How about a high rise on Arthurs Seat? Harrison Park was acquired in almost identical circumstances to Portobello; a late nineteenth century purchase by the Council as part of the extension of its boundaries and set in perpetuity as a park by feu charter from its feu superior (Merchant Company). Everybody wants a slice of it. What’s to stop that? The fact is that the City of Edinburgh Council has a poor track record in protecting green space. The Meadows is now a ‘venue’.

    By the way, I never did quite understand why the two 3G pitches can’t be on Portobello Park, but the new school built somewhere nearby. At Harrison Park Merchiston Boys Club has two large pitches, with no loss to anyone.

    Second question, why are they so adamant about having two 3G pitches when the old school never had them in all its 50 years? Why now? Plus, other schools have to do without. What’s so special about PHS? Up my way they are proposing building the new Boroughmuir High School on land along the canal belonging to the former brewery, on a site actually smaller than the current one! And guess what, the kids are to get a small AstroTurf pitch on the roof! They are also hoping to snitch a tiny pocket park belonging to residents at Gibson Terrace but allowed to be sold to a Consortium building student flats. A new park to replace this is proposed nearer to the canal – a prettier setting – except the school wants that too. This despite the fact that the Council bought a lot of land there and could give the school a 3G pitch if it wanted to.

    A precedent exists, and all you say about a private bill being a ‘remedy’ for getting round the law is as nea as damn it a definition of ‘precedent’ as ever I came across. A precedent being a ‘model’.

    • I don’t have a view on whether the school should be built on the park or not but I would just like to clarify a couple of points. First of all, the land was not gifted – it was bought at considerable expense (£25,000 in 1898 or around £2.5 million in today’s money). It was also purchased in pursuance of statutory powers contained in the Edinburgh Extension Act 1896 and you can see the relevant sections in the post already referred to above. As for the precedent – common good land has already been removed from the common good in Edinburgh by statutory means. Two examples spring to mind. The first is Section 145 of the Edinburgh Corporation Order Confirmation Act 1967 which removed the slaughterhouses and markets from the common good. The second is the much more recent National Galleries of Scotland Act which repealed a previous restriction on building in East Prince Street Gardens. Both these acts are linked in this post.

  7. Hello Andy

    Thanks for this.

    What I meant by ‘gifted’ was that the city corporation bought it for the people. They did not buy it for themselves, for general purposes, but specifically for a park. As I mentioned, Harrison Park was acquired by the same city extension act as Portobello. In the 1890s the city was stretching in all directions.

    Plus, those who sold the land did so on the proviso that the land be used for the stated purposes in the feu, in this case, public parks. Feu charters were a from of planning control of great utility in urban areas. For instance, it once stopped Queen Street gardens from being turned into a bus station in the 1960s.

    There was a lot of discussion in the 19th century about the purpose and need for gardens and green space. It was a major debate, pushed by social reformers. It sort of parallels the debates about land reform that were going on at the same time in rural areas. Public parks were a kind of urban crusade in the ‘land for the people’ cause. It was argued that in dense urban settings, full of disease and overcrowding, people needed forms of recreation that were healthful and involved peace, contemplation, exercise, beauty, fresh air – and not going down the pub, getting wasted, and spending your earnings before you paid the rent or fed and clothed your children. Tennis courts, rose gardens, bowling clubs, bandstands – all free recreation to uplift the spirit and provide healthful recreation. There was considerable literature about this. It was argued that such forms of recreation raised working people out of their oppressed state and were uplifting and liberating and allowed people the chance to get out of poverty. I think this is still recognised today – that open green space is important for wellbeing. Especially in dense urban areas. Regrettably public expenditure in parks has dwindled in Edinburgh since the 1990s, and Portobello is not the only park to suffer in this way.

    The examples you give of the recent building in Princes Street gardens is hardly on the scale propose here. Plus, it is still public and it does not compromise the purpose of the gardens to provide recreation. Instead of picnicking on the grass, you can have a coffee outside the National Galleries on a patio area. It is similar to other forms of recreational building allowed on parks, like bandstands, swings, or swimming pools.

    • I fully agree Parks are very important and need defending by the citizens. But ultimately these issues, like the argument over the original merging of Portobello and Edinburgh) are political arguments to be settled by public debate and democratic decisions bot of which can of course be vastly improved in terms of process. Schools are also very important.

  8. Well I am struggling to understand what this bitterness and fighting is all about. The only sense I have made of it is that Portobello is a divided community, but this began in terms of its urban geography. The main east coast railway line swings round the coast and cuts ‘Portobello’ in two. The park is situated to the south and west of the railway. The area north and east, where the Towerbank feeder primary is, cannot readily access the park. The coastal strip, the sands, that is their natural play area. For these folks, the park is immaterial. It is not ‘their’ park really, so they don’t care. However it is accessible for other folk who feel it is ‘their’ park.

    But they key issue seems to be about the insistence on playing fields. I don’t see why the school couldn’t have pitches in the park but be built elsewhere nearby, either at the existing site, or at Baileyfield.

    Quite why the City Council has allowed this to fester for so long is also a puzzle. It is fundamentally bad governance to continue to push and push a policy that is so divisive. Politics ought to be based on reason. Good governance is about finding solutions which will be acceptable to most people.

    • Absolutely. The Council has handled this very badly and the whole sorry tale needs to be told some day by someone with some patience. You are right – the long drawn-out saga has left its mark. There are parents angry at the delay in providing a new school. There re park defenders feeling sore that the money they have spend defending the park in the courts might be for nothing. My primary interest is in the common good and it is the failings in the legal framework surrounding CG that has been at centre of the wrangle. Which is why I am working on a new common good statute to make things a lot clearer and straightforward.

  9. I expect that the consultation will demonstrate that a large majority support the Council’s position. The Scottish Parliament, in their wisdom, will then decide on the merits of the Bill. If the SP support the Bill then this will mean that the school can go ahead on the preferred site. Does this then mean that every park is suddenly under threat? No, because that is the purpose of a Private Bill. It is discrete and considers each case on its own merits. It’s not a legal precedent that becomes part of case history because this is not a legal matter, but a parliamentary one.

    The law surrounding CGL is farcical (and most likely mis-drafted) and has led to two completely contradictory judgements. A further appeal would have been a lottery, you may as well have tossed a coin. We desperately need a new school in Portobello and we can’t afford to wait around until the law surrounding CG is reformed. Both sides will have the opportunity to put their case to the SP and they will make a democratic decision. What’s the problem?

    • It seems we disagree about when a precedent is a precedent Bill, but I humbly suggest that by publicising this route it will be followed and repeated by others.

      You still haven’t answered why two 3G football pitches are essential kit when no other state school in Edinburgh has them.

      And why can’t the park be shared? Why can’t it be used for games but the building be elsewhere? Why do you insist on snitching somebody else’s park as land for your school building?

  10. I have been given a few hints as to the real background, and it may well rest with one or two influential individuals in this sorry saga who have not shown much real leadership, just bludgeoned away in the hope that they could silence detractors. The fact that they have run into determined civic resistance has been a surprising challenge, but has not provoked the reflection that they may be pursuing the wrong tack.

    The fact that they have decided to go to the Scottish Parliament also worries me, because there is politics, and something arguably much more important, and that is political culture. The political culture that is in evidence here is not one of civics, reason, independence or equality, but of centralised authoritarian paternalism. However I am glad that there will at least be this consultation – if it can be agreed that it is not a flawed process!

    Two things. By going to the Scottish Parliament the Council is signalling that it lacks the powers to govern adequately. This is an admission of failure and impotence. It follows in the wake of John Swinney having to step in to sort out the trams. The Council is forever pleading that it cannae dae this or the other. But actually it has plenty of powers if only it had the courage, the imagination, and the leadership to use them properly.

    Secondly, I am a bit horrified that the Scottish Parliament actually panders to this overture, and that MSPs have apparently reacted warmly towards this plea for their help.

    Because that signals to me that they are looking for willing clients whom they can dominate – and that runs counter to the spirit of local independence!

  11. I don’t think it’s really appropriate to get into a lengthy discussion of this type on Andy’s blog. Instead, I would invite you to post on our Facebook Page, where we will be happy to debate the matter with you.

    But the language you use is interesting: “snitching somebody else’s park”. Whose park are we ‘snitching’ exactly in your view? I would contend that we wish to use our park (where ‘our’ = the local community) to build our school for the common good of local inhabitants. And in this case, ‘we’ are the vast majority. Isn’t that what democracy is all about?

    • You are welcome here but I agree – if you want a debate about the issues, this is not the place – no-one else is reading these remarks other than the three of us (and some folk who might pop by occasionally to see an old post). Been a pleasure though etc.

  12. Hello Bob

    I’m suggesting that the urban geography has in fact divided the area in two, on either side of the railway, and that some residents therefore feel a lesser attachment than others; and that politicians for whatever reason (laziness? Lack of imagination? Worse?) have exploited this which has led to a situation of some bitterness for which they must be held responsible.

    As an outsider and fellow citizen being reluctantly dragged into this, I would just like to know, please, why you need two 3G pitches. It is something I genuinely puzzle over and need an answer to.

    This is an honest question and I would really like an explanation.