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

15. September 2012 · Comments Off on Private and Local Acts of Parliament · Categories: Common Good, Democracy, Edinburgh, Governance, Legal affairs, Portobello

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.