New Portobello High School - PPAG Judicial Review

[Betty Windsor]

When Hungry Joe wasn't required to fly perilous missions, he had screaming nightmares. He was at peace only when his life was most threatened. His state of mind was inverse to his predicament.

Our Counsel skillfully dissected the PPAG petition, throttling the life out of their case. Some PPAGERS seemed to find that a source of mirth, vacuous smiles and inane, silent laughter.

And you, presumably have eyes in the back of your head.

[seanie]

In the morning, when the Council's QC was finishing her case, Porty was sitting on the one of the comfy seats at the back.

So the standard eyes-to-the-front of the head was quite sufficient.

[Betty Windsor]

In the morning, when the Council's QC was finishing her case, Porty was sitting on the one of the comfy seats at the back.

So the standard eyes-to-the-front of the head was quite sufficient.

I don't doubt it, I was sitting at the back at the other end and saw nothing of the behavious he is talking about. It was so tedious there was very little to laugh about.
It appears to boil down to whether or not the council have the power to appropriate land without going though the courts. The case in South/North Lanarkshire does not look quite as watertight as it first appeared.
I'm sure the judge will look at all the evidence before making her decision.
If she decides in favour of PPAG are any of you prepared to make a public apology to them and maybe start blaming the people who deserve the blame for this fiasco, ie the council.

[seanie]

I'm afraid you weren't paying attention.

The core of the PPAG is that it is simply unlawful to appropriate inalienable Common Good land. It's not a question of getting permission from the courts, it just can't be done.

[Betty Windsor]

I'm afraid you weren't paying attention.

The core of the PPAG is that it is simply unlawful to appropriate inalienable Common Good land. It's not a question of getting permission from the courts, it just can't be done.

Thanks for clarifying.
The council's QC did an excellent job of dragging things out then.

[Porty]

Betty you still appear to be having difficulty recalling which QC is representing the council. How can I assist?

Councils QC= Female
PPAG QC = Male

Do a screen capture -Cut this pic out and carry it with you so you dont get mixed up again.

30-RLMartinQC-2011.jpg (10.01 KiB) Viewed 5894 times

W

[seanie]

The Council's case had more aspects to it.

[rmolehusband]

It appears to boil down to whether or not the council have the power to appropriate land without going though the courts.

If you were there, and that's how it appears to you, then you either weren't listening or failed to understand what was being said...

I'm sure the judge will look at all the evidence before making her decision.

...but at least you understand a judges role.

If she decides in favour of PPAG are any of you prepared to make a public apology to them and maybe start blaming the people who deserve the blame for this fiasco, ie the council.

I'm certainly not apologising, or blaming the council. The point you consistently seem to ignore Betty is this is not a council acting against the wishes or best interests of its residents. The majority of the community are happy to have a new school built on the park, we welcome it. You keep bringing up your own anecdotal evidence, based solely on "people you know", as to that not being the case but you are never able or willing to substantiate it, even when asked.

Having lost every practical and moral argument about the rights and wrongs of building the new school on the park, PPAGs last stand now rests on a legal technicality, a possible oversight in the drafting of a law leaving a tiny loophole. Even you must concede that the idea that the council may be able to legally sell CG land (after which the new owner could build on) but can never build on it itself somewhat ridiculous.

[Porty]

The council's QC did an excellent job of dragging things out then.

It was clinical, comprehensive, completist assasination of the PPAG case. I agree, it did take some time.

Roy Martin QC did not roll over.

In my opinion, PPAG are counting on a miracle. Mr Martin acknowledged, the thrust was absurd.

To me it boils down to "there is a gap in the law because noone has been daft enough to ask (contradict) this apparently stupid question, before now".

He's correct about the question and he may well be correct about the gap. Its a long shot but there is no other option for PPAG.

[Porty]

Even you must concede that the idea that the council may be able to legally sell CG land (after which the new owner could build on) but can never build on it itself somewhat ridiculous.

Our QC pointed out; in the event the judge found against her, the Council could form a single purpose company, dispone the land to that company, who would then build the school. It may mean that the council would have to go to court to seek permission.

Mr Martin argued that disposal of the land was not the most "detrimental" outcome for the Common Good assets held by councils.

Instead he asserted that appropriation, (change of use) was the most detrimental. On the grounds that if Council could appropriate common good assets at will, without court authority, there would be a risk of misappropriation. If a court granted permission would likely impose conditions to protect community interests. Implication being; the council could only appropriate land where compensation for the community was part of the deal and/or the appropriation would result in increased benefit to the community.

In essence he is arguing that a new school, improved pitches and park does not constitue any benefit to the community- to be fair on him, he had the decency to laugh and conceded the absurdity.

PPAG are arguing that inalienable common good land simply cannot be appropriated whilst simultaneously coming up with a way that that it can be. I hope the games a bogey.

It is also claimed that all PPAG wish is court approval for the council to build the school, this will satisy them.

And I'm a dutchman.

[Epykat]

Our QC pointed out; in the event the judge found against her, the Council could form a single purpose company, dispone the land to that company, who would then build the school. It may mean that the council would have to go to court to seek permission.

Mr Martin argued that disposal of the land was not the most "detrimental" outcome for the Common Good assets held by councils.

Instead he asserted that appropriation, (change of use) was the most detrimental. On the grounds that if Council could appropriate common good assets at will, without court authority, there would be a risk of misappropriation. A court would likely impose conditions to protect community interests. Implication being; the council could only appropriate land where compensation for the community was part of the deal and/or the appropriation would result in increased benefit to the community.

Thanks POP (or is it Porty?), from where I was sitting that's what it sounded like to me too.

PPAG are arguing that inalienable common good land simply cannot be appropriated whilst simultaneously coming up with a way that that it can be. I hope the games a bogey.

Whether the game's a bogey or not at the end of the day, at least everyone will be clear that it was all done properly and lawfully.

[Porty]

Whether the game's a bogey or not at the end of the day, at least everyone will be clear that it was all done properly and lawfully.

PPAG are bastions of lawfulness and propriety- aye f***** right!! All they wish is court approval for the council to build the school, this will satisy them.

So they ain't that bothered about the Park, their interest is purely of a legal nature. If its proper and lawful- justgo ahead and build the school with our blessing,

So why have they been feigning the tragic loss, for 6 Years?

[Betty Windsor]

Someone from the PPAG side left their scarf in court. Best get in touch with Diana if you want it back.

[Betty Windsor]

PEDAL, POD and now the Woodcraft Folk?

When do you get to the Sunshine Club Gillian?

I'll just stick to the groups whose actions appear to be out of alignment with their stated values.

[Epykat]

It is also claimed that all PPAG wish is court approval for the council to build the school, this will satisy them.

And I'm a dutchman.

Who claimed that? You're mixing up your PPAG members again

[seanie]

Roy Martin suggested that PPAG would only be too happy for the proposal to be considered by the courts under section 75 of the '73 Act if that were possible, as all they wanted was an independent arbiter on the issue.

[seanie]

PEDALI'll just stick to the groups whose actions appear to be out of alignment with their stated values.

So how do you feel about PPAG suggesting Bingham Park, the Jewel and Greenbelt land as 'suitable alternatives' for locating the school?

[Betty Windsor]

PEDALI'll just stick to the groups whose actions appear to be out of alignment with their stated values.

So how do you feel about PPAG suggesting Bingham Park, the Jewel and Greenbelt land as 'suitable alternatives' for locating the school?

So you're still trying to undermine PPAG then? This is presumably to detract attention from the fact that you, as an "environmental consultant" support building on open green space.
None of us know what the outcome of this case will be but I think it's time you stopped kidding people that the council have a watertight case.

PEDAL's constitution make it abundantly clear what they stand for. Has the constitution been amended?

[wangi]

So you're still trying to undermine PPAG then?

Do you not think Seanie's question pertinent given the comments you have made on other organisations? Members of PPAG are on the record suggesting other local green spaces for a replacement Portobello High School... It does make the preserving green space argument hard to balance, doesn't it?

[Betty Windsor]

So you're still trying to undermine PPAG then?

Do you not think Seanie's question pertinent given the comments you have made on other organisations? Members of PPAG are on the record suggesting other local green spaces for a replacement Portobello High School... It does make the preserving green space argument hard to balance, doesn't it?

From what I can see from PPAG's website they only claim to be fighting for the preservation of Portobello Park. I can see no claims that they are a pro-environmentalist group who wish to save every piece of green space in the area ( I don't doubt there are people in their number who do).

[Porty]

Someone from the PPAG side left their scarf in court. Best get in touch with Diana if you want it back.

Diana Cairns?

[Makaveli]

But one of the main arguments PPAG have had for not building on Porty Park is loss of green space - yet the next minute they are suggesting other parks in Porty to build the new school on.

It cetainly does seem very much to be NIMBYism.

[seanie]

Back to the case..

When it came to the issue of delay, the thrust of the Roy Martin argument was that the decisions in 2006 and 2008 were merely provisional, conditional on various subsequent actions that may or may not have come about. Whilst they may’ve signalled an intention to appropriate they weren’t decisions to appropriate. A legal challenge might not have been allowed as competent at those earlier stages. Also, given the difficulty and expense for individuals in bringing a legal challenge, there was nothing unreasonable in them waiting until subsequent events made the prospect of appropriation imminent, rather than a theoretical possibility. In fact PPAG are arguing that no decision to appropriate has yet been taken, as the requirements of the ’59 Town Planning Scotland Act have not yet been fulfilled, and this is key to the process.

I think a problem with that line of argument is that the issue is not when it was convenient to bring a legal challenge, but rather when it was possible to bring a legal challenge. The Scots Common Law principles behind mora, taciturnity and acquiesence involve further tests, but the basic idea behind delay is that an action should be brought within a reasonable time of when it becomes possible to do so.

That would seem to be after the decision in December '08.

[Betty Windsor]

Someone from the PPAG side left their scarf in court. Best get in touch with Diana if you want it back.

Diana Cairns?

Yes.

[seanie]

It's very difficult to tell how the Judge viewed the respective cases. The only insight that I could glean was the questions the Judge raised right at the end, when both sides had concluded.

The Judge said she was finding difficulty reconciling the North & South Lanarkshire cases with the PPAG argument. If the PPAG case is correct, then in those cases both the Inner and Outer houses of the Court of Session simply failed to notice that they were allowing an unlawful act to occur. I think the word used by her ladyship to describe that was "incredible".

Not on a par with preposterous, but it may indicate a certain disquiet with the thrust of the PPAG argument.

[Porty]

Based on no more than personal observation. The Judges' demeanour , expression and body language combined with what she said suggested to me that she did find the PPAG position incredible. However, because the advancers is held in such high regard there may just be something to it.
For the previous judgments to be wrong, it would imply the Judges didn't realise a change of use constituted appropriation. It seems far fetched.
Wonder if she will discuss the matter with Lord Drummond Young et al or is that not the done thing?

[seanie]

It's difficult to see how the core PPAG argument could be supported. It's essentially very simple; it is unlawful to appropriate inalienable Common Good land in any circumstances.

That's a very simple legal principle to express, and to understand. And yet there wasn't a single precedent produced in which this was expressed. There isn't a single instance, of a single judge, in any Common Good case, ever articulating this basic point. The argument was entirely inferred.

Quite the reverse. The case law is littered with judges weighing up the merits or otherwise of various proposals, sometimes allowing them and sometimes not. You only have to look at the Lanarkshire cases in which the Inner & Outer Houses of the Court of Session gave the greenlight to what were, if PPAG are correct, unlawful appropriations of inalienable Common Good land.

PPAG appear to have discovered a fundamental principle of Common Good law that, until now, the entire legal profession has been unaware of. Which seems a bit of a stretch...

[Puerto bella]

Was any indication given on the timescale for the judgement?

[seanie]

No. It could be several months and, looking at other cases, at least several weeks seems likely. If the Judge is persuaded on the delay issue then maybe she won't want to contribute to further delay by taking too long, but even then there were various issues raised and to go through them all won't be quick.

[Puerto bella]

My average wait has been 4 months for Inner House; not been to Outer.

[Porty]

FFS! That long?

Average of how many cases? (not a loaded or trick question ) And what's the Mean length of time over those cases?

[Puerto bella]

Yes, infuriating isnt it and yes its over a fair few over a long time - 22 years; so dont hold you breath waiting would be my advice.

[Betty Windsor]

PPAG appear to have discovered a fundamental principle of Common Good law that, until now, the entire legal profession has been unaware of. Which seems a bit of a stretch...

I think it's worth bearing in mind that it is not PPAG who have discovered a fundemental principle of Common Good Law, they have taken advice from the top QC in the field.

[Epykat]

..... so dont hold you breath waiting would be my advice.

I think it would be better if they did hold their breath.........

[seanie]

I think it's worth bearing in mind that it is not PPAG who have discovered a fundemental principle of Common Good Law, they have taken advice from the top QC in the field.

Curious that that nobody else seems to be aware of this fundamental principle.