New Portobello High School - PPAG Judicial Review

[Betty Windsor]

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.

Are you questioning his expertise?
From everything I've read about him he seems to the "the man" when it comes to all things planning/common good land etc. I'm surprised you would question his credibility.
Do you never ask yourself why someone of his standing and reputation would take on a case like this?

[wangi]

The Lady hasn't sung.

[Bob Jefferson]

Do you never ask yourself why someone of his standing and reputation would take on a case like this?

Easy money?

[Porty]

One would expect what Betty refers to as a fundamental principle to be apparent to anyone taking the trouble to look. Not exclusively to "the man" as appears to be the case here.

Does his mum live in Park Avenue?

[Chas]

Does his mum live in Park Avenue?

[seanie]

Are you questioning his expertise?

No. Just his arguments.

QCs are like taxis; you tell them your desired destination and they try to find a route to it.

In this instance I think that PPAG's desired destination is not an easy one to reach, but Roy Martin has done his best to try. I certainly think he articulated his case well, but at times the arguments seemed thin. That's not a reflection on his expertise, just the absence of supporting evidence.

[Betty Windsor]

101208appendix5legalopinionbignoldpark.pdf

(275.49 KiB) Downloaded 122 times

Are you questioning his expertise?

No. Just his arguments.

QCs are like taxis; you tell them your desired destination and they try to find a route to it.

In this instance I think that PPAG's desired destination is not an easy one to reach, but Roy Martin has done his best to try. I certainly think he articulated his case well, but at times the arguments seemed thin. That's not a reflection on his expertise, just the absence of supporting evidence.

I'm not sure what kind of evidence you would expect there to be. If the fundemental principle is that you cannot build on inalienable good land then presumably most local authorties don't.
The attached legal opinion seems to confirm that, but like you say you can get QCs to say anything you want to hear apparently.

[seanie]

Evidence in the form of legal precedents and previous rulings. The argument that inalienable Common Good cannot be appropriated was entirely inferred. There wasn't a single instance, of a single Judge, in a single case, ever articulating such a 'fundamental principle'. On the contrary, there are legal precedents such as North and South Lanarkshire where the Courts clearly didn't share the view that inalienable Common Good cannot be appropriated.

And legal precedents established by the courts carry more weight than legal opinions.

[Bob Jefferson]

Golf Course not at risk. It's official.

http://www.scotsman.com/edinburgh-eveni ... _1_2107071

[regent]

This year at least!

[Bob Jefferson]

Nothing lasts forever. It's the entropic nature of the universe. However, other questions have to be asked. Does Portobello Golf Course pay for itself or is it subsidised by local rate payers? What level of subsidy is appropriate for a golf course, compared with a swimming pool for example? Does this large area of parkland serve the best interests of the community in its present form? Tough questions, tough times.

[Betty Windsor]

Nothing lasts forever. It's the entropic nature of the universe. However, other questions have to be asked. Does Portobello Golf Course pay for itself or is it subsidised by local rate payers? What level of subsidy is appropriate for a golf course, compared with a swimming pool for example? Does this large area of parkland serve the best interests of the community in its present form? Tough questions, tough times.

I'm sensing you've given up on the idea of the "golf acadamy".

[Bob Jefferson]

While it remains a Golf Course then a golf academy makes perfect sense. I'm sure that Portobello Golf Club would welcome the idea because it would help to enlist new junior members and that in itself may play a big part in safeguarding the future of the club and course.

In the long term, however, you have to ask whether the Council can afford to continue to maintain public courses. Maybe they will follow the route of public bowling greens?

And looking at Portobello Golf Course dispassionately, I'm questioning whether perhaps we could make better leisure and recreational use of what is a very large green space at the heart of our community? Once the school has been built and the dust settled (and PPAG no longer requires the support of the golfing fraternity), I can well imagine that many people will begin to consider the potential that it offers.

[Epykat]

The potential for housing maybe? Why have the Council not thought of that before?

[seanie]

Given that the Common Good status of the land is now recognised, it's difficult to see how that could happen.

[Porty]

I got my scarf back. Called Diana and Stephen brought it round.Most graccious and much appreciated. we discussed a number of issues and i now know the basis for the significant majority claim.

[Bob Jefferson]

OK, let's hear it.

[Epykat]

Yes, let's.........

[Porty]

We do not claim to represent the whole of the community, but we do represent the SIGNIFICANT MAJORITY

Is not a lie because it is based on the response from people within the community who PPAG have spoken with.

[Makaveli]

One word - farcical.

You can't make statements like the above and base it on speaking to people of a like minded view!!!

[Bob Jefferson]

Delusions on a Kenny Dalgleish scale. If only PPAG had American owners and shirt sponsors to remind them that there is a real world out there, where people make judgements and decisions based upon things like facts and truth.

[Porty]

There was at least one other gem: "The judge would likely come down heavily in favour of the school". In other words PPAG have not been given a fair hearing.

No consideration that should the court find in our favour, its simply justice at work.

[Bob Jefferson]

Of course. If they win, it's victory against all the odds. If they lose? The outcome was rigged from the outset. It's all part of the Great Conspiracy. What else could they tell their donors?

[Makaveli]

I bumped into a friend of my Mum's the other day who lives near the site of the new school. She had been approached by PPAG to give funds to the school but refused as she is for the school being built on Porty Park as there is no viable alternative. Her children go to private school so she has no hidden adgena for wanting the school there.

She must part of the insignificant minority!!!

[wangi]

Judgement soon?

LADY DORRIAN

Wednesday 7th March

Judgment
(Appearance of counsel not required)

1 Portobello Park Action Group for judicial reviw

Drummond Miller

Brodies LLP

From http://www.scotcourts.gov.uk/rolls/supr ... 06_131.htm

[Porty]

Probably happening right now!!

[seanie]

Looks like it could be. Couldn't get hold of anyone at the Council involved in things so maybe they've trooped up to the Court of Session.

[seanie]

Petition refused.

[seanie]

Dismissed primarily on the issue of delay but;

Had I been with the petitioners on the issue of mora, I would nevertheless have refused the petition on the merits.

[Chas]

Can they appeal?

[wangi]

For full decision see http://www.scotcourts.gov.uk/opinions/2012CSOH38.html

[seanie]

Can they appeal?

I imagine so. But given their argument would've been rejected on merit, regardless of the delay issue, they might think twice about it. Then again maybe not.

[Makaveli]

Great news.

Lets hope this is the end of the matter and they can now go ahead and build the school.

[Chas]

Can they appeal?

I imagine so. But given their argument would've been rejected on merit, regardless of the delay issue, they might think twice about it. Then again maybe not.

Reading the judgement, sections 40 & 44 suggest to me there is very little scope for PPAG to take this any further. Unless of course the find some completely new argument...

[seanie]

[37] There has therefore been a considerable delay in bringing this petition. There is clearly a tension between the requirement to act "promptly" in mounting by judicial review a challenge to an administrative decision and the requirements of Scots law that a plea of mora cannot proceed on the basis of delay alone. In this case that delay has been considerable, and although the petitioners have, up to March 2010 been maintaining that they intended to present a legal challenge they did not do so until July 2011. As far as I can see from the time-line (6/4 of process) and documentation lodged on behalf of the petitioners, they did not take steps to instruct solicitors for that purpose until August 2010. Thereafter they consulted with senior counsel and took his advice. However, on the issue of the oft-repeated threat to mount a legal challenge, there seems to have been a deafening silence until they initiated the correspondence in February 2011 (apart from asking, in the course of the planning process, whether the council had contingency plans "in the event of a challenge being mounted").

[38] In assessing the impact of silence during this period of delay, I take into account that one must allow a reasonable period for mobilisation, instruction of solicitors and counsel and obtaining funding. On the latter point, of course, the petitioners had been opposing appropriation of the park, and threatening action since 2006, so the fund raising issue has to be set in that context. Otherwise, the issue is not one on which they required to gather evidence, it is purely a question of law on which they already had the advice upon which they subsequently chose to act.

[39] It is not enough for the petitioners to rely on a "climate of opposition". They had repeatedly threatened action. When the council finally resolved the issue of compensatory provision in they way they did in March 2010, that was the time for the petitioners to translate their words into action. They did not do so, and in my opinion the gap between March 2010 and July 2011 is indicative of taciturnity and acquiescence. A reasonable person knowing all that the petitioners knew, and observing their conduct, would have been entitled to conclude that they had, albeit reluctantly, acquiesced. Accordingly I find the plea of mora to have been established. I will uphold the first plea-in-law for the respondents and dismiss the petition.