New Schools Proposal - The Wider Issues

[seanie]

I have no background knowledge of this area but from what I've read I understand the following;

• Common Good property can be alienable or inalienable, although I haven’t found a definition of why which is which.
  
  “Someâ€

[Charles]

It is also highly relevant that the law is such that Common Good Land cannot be used for statutory functions.

Is that the opinion of Roy Martin QC (Dean of the Faculty of Advocates) ?

Or yours?

Seannie
This isn’t my opinion (although I welcome it). It was discussed at the Local Government and Transport Committee at the Parliament. The question was asked by one of the committee members, and Andy Wightman responded to say that as the law stands, common good land cannot be used for statutory functions.

The point being made at this meeting about the Neidpath Grazings school building was that Scottish Borders Council were acting outwith the law. One of the petitioners, Mary MacKenzie has clearly done a lot of research into the issue, and she was expressing concern that the local councillors in this case did not represent the wishes of the electorate, or of the law as it stands. The presentation at the Committee was to challenge any precedent that may be set, and to challenge any future attempts by local authorities to illegally appropriate/dispose of common good land without going through correct legal procedures. The profile of common good land is being raised through this, and other current cases such as the Grassmarket.

[Charles]

Alison and Dave don’t post here anymore

Stephen
I asked Dave and Alison about this (not at a family gathering!!), and they asked me to reply as follows : Alison says she no longer posts here because she was fed up with being harassed by you, and by you making false allegations about her abusing various connections. She requested that she be removed from the member list, but her initial requests were ignored, so she deleted her posts. A further request to be removed from the memberlist was finally actioned.
Dave no longer posts here because he has been barred. He said on the schools topic some time ago that he didn’t intend to post on it again, and after Alison deleted her posts, the administrators were so cheesed off at her that they deemed it necessary to barr Dave’s login, so that he doesn’t do the same!! He has asked that he be re-instated, as he would still like to post on some of the other topics, but he has been told that he must promise that he won’t delete any posts before they will let him back on. As a point of principle, he is not willing to make such a promise, as he should have the same rights as every other registered user to edit his posts as he sees fit.

[Porty]

Alison and Dave don’t post here anymore

Stephen
I asked Dave and Alison about this (not at a family gathering!!), and they asked me to reply as follows : Alison says she no longer posts here because she was fed up with being harassed by you, and by you making false allegations about her abusing various connections. .

Thanks for clearing that up. And here was me thinking that she was deleting her posts to to destroy any evidence.

I did not make any "false allegations about various connections".

I did argue that Alison's involvement and commitment to the PPAG cause had compromised the St John's Schools Board in fact compromised the entire school. I invited Alison to refute this and/or put forward a counter explanation. I waited 3 weeks or so and then she deleted all her posts. Must have been slow onset harrassment. It is behaviour consistent with someone who has something to hide. And a POL first.


I didn't know Dave had been barred. Getting barred is not a regular occurrence here on POL. If what you say is correct that makes Dave only the 4th person to be barred, at least to my knowledge. I'm surprised Rex Mundi hasn't said anything about it.

[Porty]

[, Mary MacKenzie has clearly done a lot of research into the issue, and she was expressing concern that the local councillors in this case did not represent the wishes of the electorate, or of the law as it stands. The presentation at the Committee was to challenge any precedent that may be set, and to challenge any future attempts by local authorities to illegally appropriate/dispose of common good land without going through correct legal procedures..

The petition committee gave Mary a fair hearing and treated her with respect, although they were clearly angry/aghast at her suggestion that just 6 complaints should be enough to ensure a public inquiry

The committe re-emphasised that local councillors were elected to take decisions, that the law was fine as it stood. And thought that councils should me more aware of the law and their responsibilities. However, they agreed to take no further action. Mary effectively got what is commonly known as the Bums' rush.

If Andy Wightman genuinley believes that the school on neidpath grazings is "outwith the law". He is fortunate that we have brilliant legal system that will enable him to prove it.

[ali]

I'm surprised Rex Mundi hasn't said anything about it.

[Porty]

I'm surprised Rex Mundi hasn't said anything about it.

Did you mean?

[seanie]

The question was asked by one of the committee members, and Andy Wightman responded to say that as the law stands, common good land cannot be used for statutory functions.

Did he mention which particular law it was against ?

[Poppy]

The question was asked by one of the committee members, and Andy Wightman responded to say that as the law stands, common good land cannot be used for statutory functions.

Did he mention which particular law it was against ?

Good question, Seanie! I have not had time to go through the "Review & Critique", but did wonder where AW was coming from (as they say) on that one.

[seanie]

However back to the issue at hand...

The question was asked by one of the committee members, and Andy Wightman responded to say that as the law stands, common good land cannot be used for statutory functions.

In Andy Wrightman's Common Good Land in Scotland: A Review and Critique he writes the following;

This raises an important point. Common Good assets are held for the common good of the inhabitants of the former burghs. But local authorities frequently occupy these assets to discharge statutory functions not only in the former burgh but for the larger local authority area.

Do any of these departments pay a competitive market rent to the Common Good Fund? If not why not? Common good funds (and thus assets) should not be used for functions that are part of the statutory duties of a local authority. Thus if Municipal Buildings are being used for discharging the statutory functions of a local authority, the Council should pay rent to the Common Good Fund.

If Andy Wrightman's believes that Common Good assets cannot be used to fulfil statutory Council functions, then why does he argue that the Council should be paying rent to the Common Good Fund for using such assets for statutory functions?

[seanie]

And as to his core question;

Do any of these departments pay a competitive market rent to the Common Good Fund? If not why not?

A possible answer would be that it's not in the common good.

Say we changed the law and Edinburgh Council had to pay a "market" rent for any Common Good assets they use. If Andy Wrightman is correct that could constitute a considerable sum of money.

But if the Council had to spend that extra money it'd have to get it from somewhere.

They could cut expenditure, unlikely to be in the interests of the people of Edinburgh, or they could raise taxes, unlikely to be popular with the people of Edinburgh.

Or they'd use the "wide discretion" in their use of Common Good funds to keep the change revenue neutral and use the common good funds for all sorts of things currently paid out of general expenditure.

In which case the net result would be pretty much zero.

[Porty]

However back to the issue at hand...

The question was asked by one of the committee members, and Andy Wightman responded to say that as the law stands, common good land cannot be used for statutory functions.

In Andy Wrightman's Common Good Land in Scotland: A Review and Critique he writes the following;

This raises an important point. Common Good assets are held for the common good of the inhabitants of the former burghs. But local authorities frequently occupy these assets to discharge statutory functions not only in the former burgh but for the larger local authority area.

Do any of these departments pay a competitive market rent to the Common Good Fund? If not why not? Common good funds (and thus assets) should not be used for functions that are part of the statutory duties of a local authority. Thus if Municipal Buildings are being used for discharging the statutory functions of a local authority, the Council should pay rent to the Common Good Fund.

If Andy Wrightman's believes that Common Good assets cannot be used to fulfil statutory Council functions, then why does he argue that the Council should be paying rent to the Common Good Fund for using such assets for statutory functions?

Based on the evidence presented, he doesn't, I think you made that clear beyond any reasonable doubt.

[Porty]

What if PPAG were to go ahead with a legal challenge to claim that Portobelllo Park was Common Good Land and they lost.

What if they lose?

No takers so I will share thoughts.

We have been given an assurrance by the current administration that there will be no housing on the park. They cannot guarantee what will happen in future and the possibility that an administration in 5, 10,15 or 20 years time may try again

As things stand it has not been proven that portobello park is common good land and equally it has not been proven that its not. So the potential for PPAG to use the possibilty for political leverage remains. And whilst there is a possibility that the land is common good there is a shadow of doubt, which may discourage politicians from trying to sell or develop the land in future.

If PPAG go to court and they lose the argument to have portobello park registered as common good land, they will increase the risk of housing in the future. Especially if Option C is chosen and Portobello Golf Club decide to relocate, as has been widely predicted. Even although PPAG have little option but to threaten legal action. Should they do so they are taking a big risk both financially and in terms of future vulnerability.

[gilo]

Especially if Option C is chosen and Portobello Golf Club decide to relocate, as has been widely predicted.

Is relocation up to the Golf Club?

[Poppy]

Especially if Option C is chosen and Portobello Golf Club decide to relocate, as has been widely predicted.

Is relocation up to the Golf Club?

I think that the Club is separate from the Course and the Clubhouse (or pavillion - it's hardly the usual golf clubhouse)? The latter are public and run by Edinburgh Leisure. The PGC is not the same as say Prestonfield GC where the PGC owns the course/land/clubhouse etc, Therefore the PGC could exist without a course - like the Registers of Scotland GC (the oldest club without a course!!). Such clubs are groups of golfers who arrange and pay to play on various courses around the Edinburgh area and beyond.

[Porty]

Especially if Option C is chosen and Portobello Golf Club decide to relocate, as has been widely predicted.

Is relocation up to the Golf Club?

My understanding, having asked a direct question to a senior councillor, is that the option for the golfers to move to the site at Brunstane will be left on the table for a time. The assumption being that the golfers may feel differently should a school be located on the park.

[seanie]

Sorry to go back but this whole thing about an as yet unidentified law, that every Local Authority and their legal counsel are unaware of, that bars the use of Common Good assets for statutory provision of services, seems kinda irrelevant. To reiterate;
[quote]Section 75(2) and (3) of the Local Government (Scotland) Act 1973 reads as follows—

“(2) Where a local authority desire to dispose of land forming part of the common good with respect to which land a question arises as to the right of the authority to alienate, they may apply to the Court of Session or the sheriff to authorise them to dispose of the land, and the Court or sheriff may, if they think fit, authorise the authority to dispose of the land subject to such conditions, if any, as they may impose, and the Authority be entitled to dispose of the land accordingly.

(3) The Court of Session or sheriff acting under subsection (2) above may impose a condition requiring that the local authority shall provide in substitution for the land proposed to be disposed of other land to be used for the same purpose for which the former land was used.â€

[Porty]

Not according to the dearly departed.

There is much to sort out and I find it interesting to note that the conversation has now moved from 'gifted' to 'common good'.

No shift in any conversation, I believe that the land was gifted, then when the council wanted to build the freightliner depot on the original golf course, (no surprise there), they had to then buy other nearby land (present site) for £25000 to compensate.

In other words, even then the council tried to build on land which was gifted, but were forced to compensate by paying for other land nearby, to fulfill their legal obligation.

The same would appear to apply today.

If the council build on the present site, they will be forced to effectively buy the land at present market value, (Multi Millions), from the people of Edinburgh, paying those millions into the common good fund.

Their arguement that they own the land therefor it is the cheaper option is null and void.

They are definately backtracking in a major style, starting the "consultation process".

We must remember that the council bought the new land prior to telling anyone about it.

It would appear that ss far as the council were concerned it was a "done deal" until someone leaked the news.

One point that was made during the meeting last night was that

When the shopping centre was built at Peirshill the company who owned it, gave us a new library.

That would appear to be true.

What you must ask yourself is this.

What bone will the council or new housing developers throw us to make us feel better about taking away what is rightfully ours



(I have spaced out the paragraphs to make it easier to cut and paste)

BTW I've already challenged Dave on why a council would invest in railway infrastructure and also how they had the foresight to build a freightleiner terminal approximately 65 years prior to the invention of the freightliner? I never did get a response.

[Porty]

And from April 20th this year. I must admit I had not realised that the common good chat was going on way back in April. Dave mentions that the council have been asked ,which make me think that Roy Martin's opinion had been submitted at that stage.

I'm happy to leave the matter of 'the common good' to the lawyers to sort out, though personally I would see the building of new schools as being in the common good.

How much is £25 k worth nowadays?

In 2004, £25000 0s 0d from 1898 is worth: etc...

That is correct, but the we know that the land is worth much, much more.

I beleive that the council would have to pay the present cost of the land value into the common good fund.

I agree that it should be people with a bit of legal acumen who sort it out, however, the council have been asked about this already and have failed to reply.

I love the bit where Dave tells us that we know that Land is worth much, much more. Unfortunatley we are not all party to the source of Dave's information.

[Porty]

In relation to the new school in Peebles:

The point being made at this meeting about the Neidpath Grazings school building was that Scottish Borders Council were acting outwith the law.

Having read the minutes of the meetings I can find no mention of the school on neidpath grazings, have I overlooked it? And there is no mention of what law has been exceeded either.

One of the petitioners, Mary MacKenzie has clearly done a lot of research into the issue, and she was expressing concern that the local councillors in this case did not represent the wishes of the electorate, or of the law as it stands.

What electoral system do they use in the borders, spin the bottle?

[seanie]

£6,000 a year to Common Good

[Bob Jefferson]

From today's EN:

'Strong case for pooling publicly owned land'