New Portobello High School - PPAG Judicial Review

[seanie]

PPAG's Counsel went as far as admitting that the difficulties presented by the wording of the the Local Government Scotland Act may be simply down to an accidental omission, and that the interpretation in the previous cases may indeed appear sensible. However, it was also insisted that if the legislation was deficient, it was a matter for the Scottish parliament to rectify, not for the courts to make sense of.

[Jamesie]

Which QC has the Council instructed, out of interest?

[Porty]

Did her Ladyship explore the time elapsed since the Council decision to appropriate the land in Dec 2008 and the recent petition for JR?

[seashell]

Counsel for PPAG went through a detailed timeline. Her ladyship listens to the evidence and asks questions as appropriate (to clarify), but does not actually question the evidence.

[Porty]

Thanks- im feeling a bit left out not being able to attend.

[seanie]

The Council did suggest the issue of delay be heard first but the judge wasn't keen. However it was raised at the end and will be explored more fully today I imagine. The Council is arguing that the the key decision that's being challenged is the Dec' 2008 one. In anticipation PPAG have floated the suggestion that, far from being delayed, their petition may in fact be premature; technically the land hasn't been appropriated yet and until it has there may not be an act to challenge. That seems a bit fanciful.

[seanie]

Interestingly PPAG's QC took the court through various minutes, letters & e-mails, but when it came to the Dec' 2008 report that the Council voted on he sidestepped it completely.

[Mark Cameron]

Thanks for the updates - really appreciate them. Could there be a final resolution today or is there likely to be a delay before a decision is announced or worse case could this drag on again?

[seanie]

I'm pretty doubtful. There's quite a lot to consider even if the core PPAG argument is very straightforward.

[rmolehusband]

Thanks for the updates - really appreciate them

Seconded, thanks Seanie.

[seashell]

My bets would be on a written decision. And it could be months before it is issued.

[seanie]

admin: click here for summary of day one.

Couldn't get through all the arguments so an additional day has been scheduled for Feb 1st. I was impressed by the Council's counsel though. She developed her arguments very well.

[Bob Jefferson]

So does that mean that PPAG's costs to date have just increased by 50%?

[seashell]

Well, given the original projection was for one day, which then increased to two, and has now increased to three days, and counsel tend to bill per day, plus preparation time... I couldn't possibly comment!
however, bear in mind that should they be successful, PPAG could ask for expenses to be awarded in their favour.
I think it is fair to say that nothing is settled until Lady Dorrian issues her findings and that any further speculation would be just that.

[Porty]

Are you speculating that speculation would amount to no more than speculating?

[Bob Jefferson]

And by the same token, and forgiving my further speculation, if Lady Dorrian finds in favour of the Council, surely they could ask for expenses to be awarded in their favour? I wonder what provision PPAG have made for that? Or is the Council expected to show mercy at that point?

[seanie]

I think the Council have a general policy of not pursuing costs.

[Porty]

PPAG (well the 5 or 6 hardcore) will have cost the council millions of additional pounds by the time this is over, when the school is on the park. The way its looking the School will be delayed by at least a year.

Friends of mine who were hoping their eldest would have a sixth year in a new school will miss out. Meanwhile the council is forking out to keep the old wreck breathing. This is all due to the selfish actions of a handful of ignorant, vindictive, selfish people who even although they are blessed with much, want more for themselves.

If Sean is correct then i hope that in this instance the council relax their general policy and screw every penny out of this shameful bunch.

The Council have done a great job up until now, Reneging on pursuing costs from PPAG would not be delivering maximum value for the rest of the city's population. PPAG will have cost us millions the council surely has a duty to claw as much back as they can?

Sean- were you there yesterday, if so, please may we have a summary of proceedings?

[seanie]

No.

I was attending with a friend who suggested it might be best not to go into too much detail whilst the case is ongoing. From the exaggerated silent guffawing, incredulous smiles and manic shaking of heads from the PPAG gallery as the Council's argument developed, it didn't really seem that they grasped the significance of what was being said. Given how obsessively some of them read TalkPorty I think I'd rather leave them to try to work it out for themselves. Suffice to say that the PPAG battleship is not yet sunk, but yesterday it suffered a rather large and very direct hit.

[Porty]

From the exaggerated silent guffawing, incredulous smiles and manic shaking of heads from the PPAG gallery as the Council's argument developed, it didn't really seem that they grasped the significance of what was being said.

Entirely consistent with their campaign to date. PPAG, and now their QC, appear to place more store in what's not said, for example: if the Council don't say they will NEVER build houses on the park, PPAG take that to mean they definitely will and spread the word accordingly.

Given how obsessively some of them read TalkPorty I think I'd rather leave them to try to work it out for themselves. Suffice to say that the PPAG battleship is not yet sunk, but yesterday it suffered a rather large and very direct hit.

That's good, although its more of a pontoon than a battleship.

[seashell]

Re award of expenses - that is, of course, a matter for the council and their legal advisers to decide upon. However, as a public body who derive their revenues from the public, they also have to be accountable to the public and also be mindful of their statutory duties, which might be an argument for pursuing expenses.
Certain members of the public attending court did not appear to be aware of how one should conduct oneself in such a place. They were certainly old enough to know better and one can only suppose they were getting ready for a visit to the pantomime that evening. Which is just an aside and has nothing to do with the merits (or otherwise) of their legal case.
And finally - speculating about speculating about speculating.... can I just say I wear varifocals? VBG.

[Bob Jefferson]

Re award of expenses - that is, of course, a matter for the council and their legal advisers to decide upon. However, as a public body who derive their revenues from the public, they also have to be accountable to the public and also be mindful of their statutory duties, which might be an argument for pursuing expenses

As a member of the public, I shall be insisting upon it.

Certain members of the public attending court did not appear to be aware of how one should conduct oneself in such a place. They were certainly old enough to know better and one can only suppose they were getting ready for a visit to the pantomime that evening.

I can quite imagine.

[seashell]

Conduct unbecoming an adult might be one way of describing it, Bob. It was certainly very unedifying to see. This was a legal case being held in the Court of Session and you would expect people to know how to behave properly.

[seanie]

Two days of legal arguments and no updates from PPAG for their loyal supporters? I'm disappointed. I was expecting breathless, if largely fictional, blow by blow accounts.

[Porty]

I suspect PPAG run their copy past the Imagineers at Disney prior to publication. So it may take a couple of days for the doublespeak to out.

[Bob Jefferson]

Should the Council pursue PPAG for costs in the event of Lady Dorrian finding in the Council's favour? You have an opportunity to express your opinion either way at:

http://www.facebook.com/new.phs.park

new_phs.jpg (11.53 KiB) Viewed 7062 times

[seanie]

I'm in two minds on this.

It was raised at the Council meeting in September that I took a Towerbank delegation to. One of the Cllrs put it to me that PPAG should be pursued for costs. I pretty much sidestepped the question.

It's very important that decisions can be challenged by ordinary people, and if people are scared off by potential costs that's not good. It's not a bad thing for the Government or Local Authority to refrain from seeking costs to allow issues to be resolved, even if that has a financial cost to the public purse. So my first instinct is that costs shouldn't be sought.

But then...

Having heard PPAG's core argument, it's difficult to see why they couldn't have brought a challenge as far back as December 2006, or at least after December 2008. In '06 the Council decided, in principle, to locate the school
on the park. PPAG contends that the school can't, in principle, be located on inalienable Common Good land. So they've had years in which to challenge the Council's position.

The delay hasn't been because they had to await a particular event or change in circumstances, they simply weren't willing to put their money where their mouth was and mount a challenge.

In fact I think it's worse than that. I've heard the defence that PPAG could only mount a challenge once planning had been granted and the school was going ahead. Given they're not challenging the planning decision itself that's unconvincing, but even allowing for that there was still a delay of several months between the planning decision and the legal action. Planning was March, and the petition was submitted in July.

Why the delay?

They've been touting their legal opinions for years, so it wasn't as if they had to seek advice from a fresh starting point. They'd also been boasting of their fundraising successes for years previously.

So why the delay?

I think the answer is obvious. They waited to launch their legal action till the last minute to cause maximum delay, disruption and expense to the project, throwing the entire tender process into doubt even if the Council wins outright. Not out of vindictiveness, but simply to maximise the possibility of the project being cancelled regardless of the legal outcome. Times are tight, and aren't going to improve anytime soon. If they can just delay things, by what ever means necessary, there's always the hope of some radical cut in capital expenditure, much like the savage cancellation of the BSF project by Gove south of the border.

That's why I'm in two minds about costs. I suspect PPAG have timed things to maximise the costs to the Council.

[Scoop]

Certain members of the public attending court did not appear to be aware of how one should conduct oneself in such a place. They were certainly old enough to know better and one can only suppose they were getting ready for a visit to the pantomime that evening. Which is just an aside and has nothing to do with the merits (or otherwise) of their legal case.

In a "We're behind you!!!" fashion? You could only have got that view from the cheap seats! Sincere apologies if the white shellsuit or whatever it was that offended Your Ladyship - or should that be Her Ladyship? I can never get it right when I'm under scrutiny.

[seanie]

There were no white shell suits on view at the Court of Session.

Twin sets & pearls, sensible brogues and some ill advised plaid.

But no shell suits.

[Scoop]

The delay hasn't been because they had to await a particular event or change in circumstances, they simply weren't willing to put their money where their mouth was and mount a challenge. .

Objection! Speculation. Move to strike.

In fact I think it's worse than that. I've heard the defence that PPAG could only mount a challenge once planning had been granted and the school was going ahead. .

Objection! Hearsay. Move to strike.

I think the answer is obvious. They waited to launch their legal action till the last minute to cause maximum delay, disruption and expense to the project, .

Objection! Speculation. Move to strike.

....throwing the entire tender process .....

This IS the City of Edinburgh council that we are talking about, right? Same City of edinburgh Council who have proved unable to administer one of their departments within it, to the extent that they are being investigated by the police and external auditors? Same one? Tender process? Your faith is to be commended.

.....simply to maximise the possibility of the project being cancelled regardless of the legal outcome. Times are tight, and aren't going to improve anytime soon. If they can just delay things, by what ever means necessary, there's always the hope of some radical cut in capital expenditure, much like the savage cancellation of the BSF project by Gove south of the border......

Objection! Speculation. Move to strike.

I suspect PPAG have timed things to maximise the costs to the Council.

Preposterous. Uncorroborated. Inflammatory.

[seanie]

Why the delay then?

[Scoop]

I can't and won't speculate on the motives of others.

[seanie]

3-4 months between the planning permission and the petition being lodged. Despite having taken legal advice from a QC at least 5 years earlier, and having been fundraising since at least early 2009.

Why the delay?

[seanie]

From June 2009.

As Stephen McIntyre has noted, PPAG does intend to mount a legal challenge against the plan to build on Portobello Park. To date, fundraising events to finance this legal challenge have been extremely well supported, and this proves that many local people support PPAG and its stated aim – to protect Portobello Park from development.

[Scoop]

http://www.thefreedictionary.com/speculation

...and it can leave you open to ridicule in the future, and that can never be a good thing.