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.

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.

Lady Paton handed down a dramatic decision of the Inner House of the Court of Session today and ruled that Edinburgh Council does not have the legal authority to build a new school on Portobello Park. This has been a long-running saga and has, tragically, caused very deep divisions in Portobello which I will come to in a moment. Briefly the story is as follows.

Edinburgh Council is keen to replace the ageing and decrepit Portobello High School and build a new school fit for the 21st century. After examining a variety of sites, it chose Portobello Park as the preferred site. This led to a the Portobello Park Action Group (PPAG) being formed to campaign against the building of the school in the park. They complained of the loss of greenspace and also brought into the debate the fact that Portobello Park is common good land (a fact initially disputed by the Council). Common Good land is subject to a range of restrictions on how it can be disposed of and used. The Council sought it’s own legal opinion on whether it had the authority to go ahead and satisfied itself that it did. Planning consent and contractual matters where then agreed. In July 2011, PPAG sought a judicial review of the Council’s decision to build the school and on 7 March 2012, Lady Dorrian rejected the pleas of PPAG and gave the green light for the Council to build the school. Her grounds were that the PPAG were too late in bringing their case and that, in any event, the law on common good gave the Council a wide discretion to appropriate common good land. PPAG appealed and today Lady Paton upheld the appeal and concluded that PPAG were not too late and that the Council have no authority to build a school on common good land.

I offer a few brief observations.

I was wrong when I offered the view that this appeal was unlikely to succeed. My view at the time was informed by the narrow point in law and the lack of much legal precedent for situations where a local authority was “appropriating” as opposed to selling common good land. Lady Paton’s ruling makes it very clear that there are significant hurdles to overcome before inalienable common good land can be appropriated for another use.

The law on common good is vague and always open to the interpretation of the Courts. Several attempts since 2004 to persuade the Scottish Government to review the law have fallen on deaf ears. The law does need placed on a new statutory footing. Common Good features as a modest part of the consultation on the Community Empowerment and Renewal Bill but what we need now is a new statute. I and others are working on such a statute and hope to have the draft outlines of a Bill ready by the end of 2012.

Citizens of Scotland’s burghs should have the right to take legal action in defence of their common good. However, the appeal by PPAG was, in part I believe, driven by the self-interest of property owners in the vicinity of the park.

The City of Edinburgh Council should have known that this land was common good. That they did not is a reflection of a long history of neglect in the stewardship of the Common Good Fund. At an early stage the Council should have sought legal authority for their proposals. This is common practice. Their failure to do so contributed to today’s outcome.

The community of Portobello has been left deeply divided. This is tragic when the matter at hand is the building of a much needed news school.But the reasons for this division is not the need for a new school but the inadequate legal framework governing common good and the arrogant behaviour of the Council.

Local government needs reformed. Indeed, we do not have local government – merely a poor form of regional government. Decisions about common good in, say Pittenweem or Perth should not be taken by Councillors representing the whole of Fife or the whole of Perth and Kinross. Edinburgh, admittedly is a bit different in that its government is solely concerned with the City (though South Queensferry’s Fund is distinct and historically Portobello and Leith have been absorbed).

Lady Paton’s ruling misses out an important fact. The 1898 disposition that transferred the park to Royal Burgh of Edinburgh was a feu disposition. The burdens narrated at [2] are therefore feudal burdens. Section 17 of the Abolition of Feudal Tenure etc. (Scotland) Act abolished all feudal burdens unless any Superior took action to preserve them. No such action was taken in this instance and thus the restrictions are, in my view, irrelevant. Yet, they have been brought into play by Lady Paton. Was she right to do so given that they have been extinguished? Does this have a bearing on the ruling? (1)

Finally, let us not forget in this whole sorry tale the young people of Portobello who deserve a new school. It is tragic that this now seems as distant a prospect as it did at the beginning of this saga.

(1) 1417hrs Robert Sutherland, advocate rightly points out that the abolition of feudal tenure has no bearing on the status of land as a common good. This is correct. He goes on to point out that feudal burdens are not always lost if not preserved. I will encourage him to elaborate further by way of comment on this post.

UPDATE 15 September The Legal Opinion obtained by City of Edinburgh Council dated 19 November 2008 which was ordered to be released by the Information Commissioner in Decision 079/2009

UPDATE 1 October At the time tis blog was written, I accepted as fact that Portobello Park was common good since it was agreed between PPAG and CEC that it was. Subsequent evidence has cast doubt on this matter.