New Portobello High School - PPAG/"Save Porty Park"

[seanie]

Endemic in one small department perhaps. There was nothing to suggest a wider problem.

[Porty]

I thought the standard of the investigative journalism was high for an "expose" type documentary, no outrageous claims or supposition. Ewan Aitken said "people will be charged (criminally) and I hope its soon". Which is a big condemnation from a skilled politician.

[Porty]

Great result at the Council meeting. Construction works proceeding at Councils own risk. Bumped into Sean after meeting, no doubt he will elaborate.

[seanie]

PHS report approved. £200,000 committed in preparatory works and they'll be asking if the court date can be brought forward.

Interestingly the legal officer said PPAG could've obtained a hearing in a matter of weeks instead of months if they'd if they'd applied for an interim interdict. Maybe they're not all that keen on having their day in court afterall.

[seanie]

Not unanimous - the Greens and Cllr Hawkins voted for an amendment

[Bob Jefferson]

This is PPAG's written submission in lieu of deputation at today's Council meeting.

[seanie]

It's self-serving tosh.

[seanie]

I will expand upon that in due course...

[rmolehusband]

So how did the run go? Did anyone win a prize? I cycled past about 6:30 and there was a very nice banner and some balloons on the gate, but not a soul to be seen. Nice night for it though.

[seanie]

Went past at 7:30 and saw a couple of dozen going round the golf course. It was getting quite dark though so it was difficult to see.

[seashell]

It would have been nice to have seen a photograph of all those people who support PPAG turning up to support their fundraising effort. No doubt there will be an honest, open and unbiased account of the event on their webpage/facebook page.
Wonder how much of a senior counsel's time they will be able to pay for? Any advance on 10 minutes?

[seanie]

This could take a while but...

First off PPAG are claiming that they've taken legal action "at the earliest opportunity it could, that is after the Council granted planning permission."

This is an outright fabrication.

If you're seeking a judicial review, you're challenging either a decision or a process that lead to that decision. And the opportunity to challenge arises when that key decision or part of the process has occurred. From everything they've said, the key to PPAG's challenge lies in the issue of Common Good; that building the school on the park is incompatible with that status.

Now leaving the intricacies of that aside for the moment, one thing is clear; the issue of Common Good is completely and utterly irrelevant to the granting of planning permission. It simply isn't a planning issue, so you can't challenge the planning decision on that basis. Well you could; but the case would last five minutes.

So the granting of planning permission is irrelevant to their case, and so also irrelevant to the timing of their case.

If the challenge is based on the Common Good, them the decision being questioned is not the Planning one that merely dealt with the chosen site in planning terms, but with the choice of site itself. And that decision was taken in December 2006.

[seanie]

So the possibility of challenging the legality of building the school on the park has at least existed since then. But to be fair there was still considerable uncertainty and the Council had committed to investigating the issue of Common Good. So not taking action then was perfectly reasonable.

But the next key decision was in December 2008, at the end of the prioritisation process that selected PHS as the school in most urgent need of replacement. At that point the results of the investigations into the issue were reported back. On the advice of 2 QCs the Council had reached the conclusion that the land probably was Common Good, but that permission was not required from the courts to proceed with the school project. As far as the Council was concerned that was the end of the matter.

That's the key decision.

That's the decision PPAG are really challenging.

And they've had the best part of 3 years to do so.

[seanie]

So in December 2008 the ball was in PPAG's court.

The Council had made the decision, on QCs advice, not to take the issue to court as they didn't think it necessary; if PPAG thought differently it was up to them to do something about it. Indeed at the time PPAG talked big about legal challenges and how well fundraising was going.

And yet they didn't actually do anything till July this year.

Why might that be?

Why wait till this stage in the process?

This is where it may get a bit more convoluted...

[seanie]

At this point let's remind ourselves of PPAG's original legal opinion, that by now has achieved such exalted status in some quarters. This is the opinion PPAG have cited in defence of their claim that the Council has acted illegally, that permission from the Courts was required, and that Common Good land can't be used for statutory purposes.

But when you look at the opinionas originally quoted and cited it doesn't support any such claims.

“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 Park.”

An entirely reasonable and measured opinion. If Common Good land, there would indeed be limitations upon the entitlement of the Council to alienate part of the park.

But legal precedent, established by the Court of Session, is that building schools on Common Good land does not conflict with the Common Good status. The Courts of Session have already given the green light to the building of schools on Common Good land.

That is not a matter of opinion, it is a matter of fact.

[seanie]

I'm not going to post the court transcript again since I must've done it 30 or 40 times but, what's crystal clear is that legal precedent is overwhelmingly on the side of the Council. You only have to read the reported case to see that.

But...Common Good is a relatively arcane area; it's largely been determined by isolated case law, years if not decades apart. So it may well be possible to construct some kind of case against the Council's stance based on threads of previous cases. But compared to the Council's case that's not going to be easy.

All the Council has to argue is; "there are these two previous cases we're clearly inline with."

But any challenge to that is going to be a lot more complex.

And, given we're talking lawyers and QCs, more complex means more expensive.

[seanie]

Ay, there's the rub...

PPAG have been talking about legal action since 2008. The reason that's not been forthcoming has nothing to do with waiting on the Planning decision. It's down to very real practical difficulties.

Proceeding in the Court of Session are expensive even in relatively straightforward cases. But given the legal precedents weighted against them, even if PPAG have a viable argument, it's not going to be quick and simple to argue. And whilst they might have enough funds to get through a hearing or two, there's no way they can support an extended, complex case.

Which is why no legal action came forward.

So why now?

[seanie]

That essential difficulty is unlikely to have changed (unless they've found someone very rich and very gullible).

They seem to have made some half-hearted attempts to persuade the Council to fund a legal action against itself as some kind of 'joint venture', but not with any publicity or trying to build a groundswell of opinion. I've been involved in this issue quite closely and I had no idea of their overtures to the Council. But since the prospect of the Council funding a legal action against itself on behalf of PPAG is pretty ludicrous, it's probably understandable they kept it quiet.

But the delay in launching a legal action isn't down to some Machiavellian plan. It's not down to spite or mallice or vindictiveness.

It's down to desperation.

If they have a case at all, it's a marginal one that'll be complex and expensive, that they won't be able to see through, especially when they'll be liable to at least some of the Council's costs should they lose.

So given that reality what do you do?



You delay...

[seanie]

It doesn't cost much to actually lodge a petition, and simply by doing that they've already set the project back 6 months. They could have applied for an Interim Interdict that could've been heard within a few weeks instead of a few moths but they didn't. In their submission today they wanted more dialogue although we're at a position that's really beyond that; but dialogue takes time.

So more delay.

That's what this is really about.

PPAG might have some kind of arguable case, but it'll be a complex one, with a remote prospect of success, that they can't afford to pursue anyway. So whilst I've no doubt they're convinced of their essential rightness, I think they're actually seeking delay for the sake of it in the hope of a deus ex machina; the economy tanks so badly that all capital projects are suspended, or some big black financial hole opens up that diverts the funds elsewhere.

It's not spiteful, it's not malicious, but it's probably pointless.

[seanie]

An article at Edinburgh Napier News, a site produced by journalism students as Napier University;

Edinburgh Council’s ‘painful’ vote goes ahead despite court action

Portobello Park, between the ancient Portobello 9-hole golf course and the Milton Road section of the A1, is the preferred site for the new Portobello High School.

Ancient?

That's an odd word to describe the golf course surely?

[Porty]

Thanks for that Sean.Well reasoned and informative.

I wasn't at Council yesterday, I believe there was a very rare happening. Am i correct in thinking that SNP, in the form of Steve Cardownie, opined that PPAG had no case and were just being vindictive. And in an extraordinary turn of events the leader of the labour group agreed?

Is that true?

[seanie]

The full article can be found here and includes some classic gibberish.

[seanie]

Thanks for that Sean.Well reasoned and informative.

I wasn't at Council yesterday, I believe there was a very rare happening. Am i correct in thinking that SNP, in the form of Steve Cardownie, opined that PPAG had no case and were just being vindictive. And in an extraordinary turn of events the leader of the labour group agreed?

Is that true?

Apart from the Greens and Cllr Hawkins the Council seemed absolutely united on the issue.

[Porty]

The full article can be found here and includes some classic gibberish.

Indeed.

[seanie]

City seeks to bring Portobello school case forward

[Doris]

Every picture tells a story...........

http://www.portygreenkeepers.org.uk/

[Porty]

They booked St Martins church, wonder if they were upfront about who they were. Seems unlikely.

[rmolehusband]

So who's been picking on the poor wee proto-journalist then?

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I did try to read his article objectively, it is based on fact but woefully slewed and disjoint. He'll go far in the EEN. He has a quote from Ros Sutherland about not building on green space. Any journalist who'd done even basic research into this would know of Sutherland's hypocritical proposal to build the new St. John's school on another nearby park - a proposal that would free up a bit more space on the existing PHS site and maybe allow PHS to remain there. I guess he didn't ask her about that.

The best bit is the last line, where he seamlessly jumps from hard hitting investigative journalism to parish newsletter.

And what has the local Labour Party got to do with any of this?

[Porty]

Let me guess, he's being bullied.

The boy could have saved himself a bit of aggro by PMing PPAG, not posting on their Facebook page for all to see.

[seashell]

Oh dear - Tom has got it wrong again. I was one of those who complained about the lack of fact finding and objectivity. And the fact that such a biased piece of reporting was published under the aegis of an academic institution.

For the record: I'm neither from Portobello nor am I a member of the Labour Party.

So far, Tom's record as a "journalist" is less than impressive.

[seanie]

And what has the local Labour Party got to do with any of this?

Don't know who he's been talking to, but one of the PPAG supporters who posted on the Evening News seemed convinced the school was all down to a Machiavellian plot by Maureen Child.

Difficult to square that with the fact that the Lib Dem-SNP coalition have taken the project forward, and that every key stage it's received near unanimous support within the Council, the only exceptions being the Greens & Cllr Hawkins.

[seanie]

Oh and I'm not, and have never been, a member of the Labour Party.

[Bob Jefferson]

Me neither. For the record.

[Porty]

I feel a wee bit sorry for Tom. After all he is just the latest to be duped by the PPAG green space angle, quite a few others have been taken in.

You can tell from the prose that he's been groomed.

On the upside; what a great learning experience for the young chap. I'm sure he'll go on to do more balanced work.

[Bob Jefferson]

Tom, I hate to break this to you but the internet isn't always a very reliable source of information. Incredibly, people just make stuff up. And some of the people you have been talking to? They just make stuff up too. So, who to believe? Well, that's where you have to use your skill and judgement as a journalist to get to the truth. Let's look at just one example. PPAG claim to speak for the 'significant majority' of the community. Is that true? What does the evidence suggest? So, if this isn't true, what else have they been lying about? I'm not bothered about the article really. After all, it's not going to change anything. I'm trying to help you here.