New Portobello High School- Where and how?

[Porty]

If it transpires that the legal opinion of PPAG beats the legal opinion of the council and the park/golfie are ruled to be common good - can the council build on it?

It took me quarter of a Google to locate a precedent:

Not only is possible to build on CGL it is commonplace for commercial developments to be built on it. Schools are no problem at all, subject to planning.

http://www.gibsontmacdonald.co.uk/11177.html?

[Dadaist]

Has anyone said this to a PPAG? What do they say back?

[Poppy]

Poppy has told us that you can as long as you pay into the fund or provide some land for it.

Think that was Seanie - certainly not me!

[Dadaist]

Poppy has told us that you can as long as you pay into the fund or provide some land for it.

Think that was Seanie - certainly not me!

My bad.

I'd just like to know what PPAG's reaction is to the rebuttal of their claim that it's difficult to build on common good land.

[Porty]

Has anyone said this to a PPAG? What do they say back?

Say what specifically?

Up until Ros's letter today I thought PPAG were no more. They didn't get back to me or PoP after our EN Letters, the website has been cleansed of all Figgate Park proposoals and so on.

My understanding was they had re-invented themselves as Friends Of Park Avenue (Faux Pas). They have a number of new initiatives to engender support for Option A, including free crisps, sweets and fizzy drinks on the busses to and from PE.

[Dadaist]

Well, we can't read either of the legal opinions and all I've heard are the respective claims from either side that you can/can't build on CG land.

I'm just wondering if there has been a rebuttal from PPAG or any of its supporters, also-rans or ex-members on the points made by PFANS/council/whoever - because if we can't see the original legal opinions we're even less likely to be able to see each opposing side's legal opinion on their opposite's legal opinion - so a partisan rebuttal is the next best thing and might even provide a clue as to the content of the original (the one we can't read) opinion.

[Porty]

Well, we can't read either of the legal opinions and all I've heard are the respective claims from either side that you can/can't build on CG land..

Not strictly true, its not just what you heard. I did post a link to a good and substantial piece of common good land development, so its not just hearsay. And as I say, I didn't dig deep in fact it was easiest gooogle since environemtal justice.

[Dadaist]

Here's an exchange from the parly about the Mussleburgh - do a search on the page for "common good" :

http://www.scottish.parliament.uk/busin ... 6-0602.htm

[Porty]

Here's an exchange from the parly about the Mussleburgh - do a search on the page for "common good" :

http://www.scottish.parliament.uk/busin ... 6-0602.htm

Will do. Seanie is au fait with the MRC goings on. I wonder what his opinion is on whether or not it can be built on? Has he said already?

[seanie]

I don't know the ins and outs but I don't think "common good" status would itself prevent development.

There was a proposal to build a new school in Ayr on common good land. I think it failed at the planning stage but not because the legal status of the land prevented it. However it's not an area I know much about.

Musselburgh Racecourse is going to a public enquiry but that was fairly predictable given the planning process. The issue of common good hasn't impeded the proposed redevelopment so far.

[Poppy]

Found this in here It's to do with National Galleries of Scotland Bill and the extension of the National Gallery at the Mound. Princes Street Gardens are definitely Common Good Land - I'm sure I read that the New Town was built on CGL?

[quote]Under Section 75(2) of the Local Government (Scotland) Act 1973 any local authority which is contemplating disposal of Common Good land where there is seen to be a significant community interest in its retention must make an application to a Court before it can proceed with disposal. The underlying intention of this provision is judicial evaluation as between the benefits of disposing of the land and the protection of the interests of the community on whose behalf Common Good land is held. Accordingly, the Council applied to the Sheriff for authority to release the site arguing that the development of the area in which the site was included would be of benefit to the inhabitants of the Council’s area and to others “in that it will improve both the cultural andcommercial life of the Cityâ€

[seanie]

Given the proposal is to develop a school might there be an argument that disposal is unecessary? Perhaps the school could pay rent into the common good fund?

[Tess@Porty]

PPAG are claiming that it's nearly impossible to build on common good land.

Didn't Cllr. Perry, at the consultation meeting in the Town Hall (11 October) say that the Council would not build on the park/golf course if it proved to be common land.

[Porty]

PPAG are claiming that it's nearly impossible to build on common good land.

Didn't Cllr. Perry, at the consultation meeting in the Town Hall (11 October) say that the Council would not build on the park/golf course if it proved to be common land.

No, absolutely not. Why would he?

[wangi]

Why would the golf course be common good land? It was bought by the council in 1898 (for £25k) to replace the original course (which was gifted I believe) which is now under the Harry Lauder Rd and railway lines...

[Dadaist]

The thing I got from the Parly transcript (I think) is that common good land can have conditions attached and that a condition could be, say, the right to play golf on the land unhindered. I wonder if conditions are preserved when one replaces common good land - it could be both a hindrance if they were passed on to the current course (PPAG legal argument - the balls would hit the school) and a get-out if it's arguable that it's ok to replace one course with another (PFANS counter-argument - not on the new course they won't).

[Porty]

Why would the golf course be common good land? It was bought by the council in 1898 (for £25k) to replace the original course (which was gifted I believe) which is now under the Harry Lauder Rd and railway lines...

I think i recall you and I examining the titles and the maps that went with them. The original golf course occupied a much smaller site than the current one and it had a park too. Also, i'm not sure that the land was gifted, as in passed to the council. From memory it was leant or leased to the council by the railway company on favourable terms and they eventually wanted it back. Think that was around 1875 but I could be wrong. The new golf course didnt open til 1908 although the land was purchased from the Miller family in 1896 or 8 for £25k. The feu was sold to an insurance company.

In the musselburgh example: muselburgh is a royal burgh, the land was gifted by charter in th 1600's and there were rights bestowed with the land, which I presume are burdens for whomever owns it. This is radically different from PGC in every respect.

I daresay some of our resident experts will put in their two cents worth.

[wangi]

IAlso, i'm not sure that the land was gifted, as in passed to the council. From memory it was leant or leased to the council by the railway company on favourable terms and they eventually wanted it back. Think that was around 1875 but I could be wrong.

Yeah, I shouldn't have said "gifted" wrt the original course - i've not seen the deeds for that and don't know what the deal was.

L/

[Porty]

at the time the article was published, the Evening News had been in possession of a press release and extract from legal opinion for three days. The legal opinion, from a top Scottish planning lawyer, supports PPAG's view that Portobello Park is common good land. The council has also received a copy of the opinion.

The PPAG submission has now been posted on the Porty Greenkeepers website and here's all it says about Common

" We believe Portobello park and Golf Course to be common good land. This is backed up by the legal opinion of Roy Martin, QC, who states: “Whilst the issue is ultimately a matter of fact to be judged by the court, it is my opinion that the Park does form part of the common good of the Council and the Group would have reasonable prospects of obtaining a decision of the Court to that effect. In that situation, there would be limitations upon the entitlement of the Council to alienate the land forming the Parkâ€

[Bob Jefferson]

The PPAG submission in full:

PPAG submission

[seanie]

Path clear for new Peebles school: Ministers have decided not to call in plans for a new school on common good land in Peebles.

A new school built on Common Good land. The legal position appears to have been that the land could be built on if sold or leased to the council (payments made into the common good fund) or subject to a land swap. In this instance I understand the Council decided to lease the land to itself.

[Porty]

Path clear for new Peebles school: Ministers have decided not to call in plans for a new school on common good land in Peebles.

A new school built on Common Good land. The legal position appears to have been that the land could be built on if sold or leased to the council (payments made into the common good fund) or subject to a land swap. In this instance I understand the Council decided to lease the land to itself.

Scottish Borders Council are building a new school on what is acknowledged by all to be Common Good Land. Seanie has kindly detailed what the financial implication are for the council. if those implications are the consequences of the limitations that Roy Martin QC is refering to when he says "In that situation, there would be limitations upon the entitlement of the Council to alienate the land forming the Parkâ€

[Bob Jefferson]

From today's EN:

Leading QC sides with park protesters in high school battle

[Poppy]

It's an opinion not a decision! As Bob has said before ... the courts decide.

It seems to me that the problem is that no-one seems to be really sure what exactly Common Good land is?

[Bob Jefferson]

It's an opinion not a decision! As Bob has said before ... the courts decide.

Just to be clear Poppy, I assume you are referring to this:

Ros Sutherland, chairwoman of PPAG, said: "We have submitted Mr Martin's decision to the council, along with our submission.

[Poppy]

Yup, sorry, Bob, that post could have been more clearly put.

Addendum: my point being that in legal matters the use of accurate terminolgy is important. That said, I was not in any way implying that Ros Sutherland or anyone else was trying to mislead anyone.

[Bob Jefferson]

I knew what you meant, I just wanted to make sure everyone else did.

[seanie]

It seems to me that the problem is that no-one seems to be really sure what exactly Common Good land is?

I can see a merit in the distinction but in some ways it's a slightly pointless argument.

The Andy Wightman paper demands that the Council should pay market rates for occupying common good properties since they are merely trustees of the common good fund on behalf of the Edinburgh public. But if so they'd be paying the rent from the taxes on the Edinburgh public.

So they'd either raise taxes and correspondingly have more money to spend, since they administer the common good fund, or more likely they'd use the money paid into the common good fund to finance common good causes currently undertaken under general expenditure.

It wouldn't be a very meaningful change. It'd be revenue neutral.

It'd be a paper shuffling exercise and little else.

[Porty]

Addendum: my point being that in legal matters the use of accurate terminolgy is important.

I would say its more than just important, its critical.

I did have a go at PPAG earlier in the thread, however I feel it was justified by their continual use of "the wrong words" as Dave Connelly used to put it. This affliction has come home to haunt them time and time again and will continue to do so.

We are going through a legal consultation, the council and its officials have to scrutinise the submissions from the various parties. What they will make of the most recent PPAG submission I don't know, it is fundamentally flawed.

You are quite correct in your assertion Poppy the use of terminology and words is important in legal environments, which is what this consultation is. Take the PPAG petition. The council are duty bound to treat the wording of the petition literally, I have checked and double checked this fact.

PPAG claim that they have a petition against building in the park with approaching 3000 signatures. The petition says;

"We call upon the City of Edinburgh Council to consider and evaluate a full range of options and alternatives, cost comparisons and funding options for the re-provisioning of Portobello High School and St John’s Primary School. We oppose the use of Portobello Golf Course and Park for re-siting the schools and building houses on. This land belongs to the people of Edinburgh and should not be sold or built on "

If the petition stopped there, then it would be beyond doubt that people signing that petition were against building in the park, no argument.

However, this is not the case. After the last word, which is "on" the petition continues.

"until a full debate is had and all the options, including keeping the land for public recreation, have been fully consulted upon with people who use the facility, live or work in Portobello and Joppa. "

The petition literally provides acceptable conditions on which building on the park could happen:

"This land belongs to the people of Edinburgh and should not be sold or built on until a full debate is had "

We have had a full debate and the council are entitled, nay bound, to take that petition literally. PPAG will no doubt try and argue that "people were signing to prevent any building on the park ever" . I'm sorry chaps but that's not what it says. Its the wrong words again

[Porty]

It'd be a paper shuffling exercise and little else.

Exactly.

[seanie]

Surely we can easily live with those consequences? It is a small price to pay for such a just and fair objective.

It could be a suprisingly small price.

The legal opinion in the Peebles case was that the sale or lease was to be carried out at market rates, which could be a tricky proposition given the absence of a market or any obvious comparator.

For example: as it currently exists the value of the park (in financial terms) will be very low. I can’t imagine it yields any return. If it was to be re-zoned for housing it’s value would leap, in line with the market rates for residential land, and the associated increase in yield. The potential for profit would increase the value dramatically.

But a state school doesn’t yield a return, generate a profit, or exist within a market.

A proposal to build a school on the park wouldn’t affect its market value in a meaningful way. It’s difficult to see how a valid market rate could be assessed.

So it would be entirely legitimate to buy or lease the land at very competitive rates.

[Porty]

we support option A for Portobello High School. Decant issues are being used to put people off this option
.

How very dare we!!

[Porty]

.But a state school doesn’t yield a return, generate a profit, or exist within a market. A proposal to build a school on the park wouldn’t affect its market value in a meaningful way. It’s difficult to see how a valid market rate could be assessed.

So it would be entirely legitimate to buy or lease the land at very competitive rates.

The court will decide if its CGL but if it is, you are right. Will the golfers have to pay a proprtionately equivalent rate or is that a special case?

[Porty]

Bob gave me a heads up on the Evening News comments section. I had been previously unaware that one could make on-line comments on stories. Here's what I found tonight:

thats twice Seanie, we heard you the first time. Unlike porty online/pfans online/lets build on our green space online, web site the moderators of this site will allow comments for and against any arguements. You apparently work for the council, you tell us what the difference is

I'm genuinely taken aback by this statement. Any and every one that has chosen POL to make a statement about the New Schools proposal, has been given the time and space to do so.


No-one has been moderated for their views, their language perhaps, but not their views. The statement has obviously been made by someone whom has a vendetta against POL. It is very sad that someone who has no idea how free this forum is , should choose to make that assertion in a well-read newspaper. Its low-life.

[Maria]

I reckon the user name 'Junk' is very apt ; it perfectly sums up the views expressed by the aforementioned. I also think rather than be offended by some of the comments made online in the EN we should just remember the old saying, 'all publicity is good publicity'

As regards this thread being one sided? Well, unfortunately, not many PPAG supporters choose to engage in any debate on this thread. It is not for lack of encouragement. We even post on their behalf; publicising their letters to the 'Evening News' and submissions to Council. The latest PPAG supporter to withdraw from the debate is Alison Connelly. Not only has Alison decided to no longer post she has, with no explanation, deleted all of her 117 posts.