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 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.