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

[Porty]

Sean- St John's were removed from the PHS/St Johns process , the council were not confident about a) how the options were explained by the parent council and b) the lack of robust consultation and reporting of the views of the school community. It was decided to revisit the consultation at some point in the future.

(To be fair, the "plan" illustrating the 3 options wasn't particularly good. Although the parent council had attended numerous meetings to discuss the options and must have been aware what they were)

PHS has come in £5M under budget, which is more than half the dosh needed for a St John's replacement/refurbishment. Assuming the school can now have a proper consultation,is it too late for the St John's to gain a foothold and make a case for replacement/refurbishment at the time PHS is pulled down or shortly thereafter?

[seanie]

I've lost track of the other Wave 3 schools. James Gillespies did eventually get funding and I think it was out for pre-planning consultation recently, so it should be going ahead fairly soon. I think Boroughmuir had a sizeable sum allocated but I'm not sure if it was enough to fund the project. I think St John's scored equal third with Boroughmuir as a priority so it must be in line for consideration. I don't what's been done on that front since the prioritisation exercise, but that was a bit of a mess.

[seanie]

Had a look and James Gillespies is in for planning at the moment (same architects as PHS). Also found an update on Boroughmuir and it looks line the Council's still undecided between refurbishment or re-build on a new site.

[wangi]

The Edinburgh Reporter also had an article on the council meeting: http://www.theedinburghreporter.co.uk/2 ... mber-2011/

[seanie]

We may have underestimated Tom;

HE'S ON TO US!!!!

Burn the tapes and shred the files...we'll meet in the safe house....

[Porty]

Sean- Its quite probable that the school is being delayed on a false premise; schools cannot be built on common good land. And quite a few PPAG supporters believe that to be the case, I'm pretty sure Tom Freeman will too.

I think its likely to be a fabrication from one or two of the PPAG households that I mentioned on the EN. Not saying it is a deliberate deception but quite possibly a misinterpretation of something one of them read. Like how they spread the word that the Council was going to build St Johns a new school but leave the old one standing in the new playground and how they told the planning committee if permission was given, the school could be built anywhere on the golf course. Simply because there was a red line around the entire park to identify the site. Both totally absurd but that's what the PPAG hardcore believed.

You have published a number of decisions where permission has not been required to build schools on CG land. During your research have you discovered anything to the contrary?

[Porty]

I've lost track of the other Wave 3 schools. James Gillespies did eventually get funding and I think it was out for pre-planning consultation recently, so it should be going ahead fairly soon. I think Boroughmuir had a sizeable sum allocated but I'm not sure if it was enough to fund the project. I think St John's scored equal third with Boroughmuir as a priority so it must be in line for consideration. I don't what's been done on that front since the prioritisation exercise, but that was a bit of a mess.

It is such a pity St John's were denied an open, informed consultation to allow a decision to be made on their preffered option. They woulld now have been in a position to bid.

[wangi]

I see that (very) high resolution version of the visual mock-ups have been added to the Planning Portal page:




(click on the image for full size PDFs)

[seanie]

Late addition to the Portobello Community Council Agenda this evening; PPAG wish to update the PCC on the legal position on the school from their perspective.

[Bob Jefferson]

Can't see what they hope to achieve by this to be honest.

[seanie]

You have published a number of decisions where permission has not been required to build schools on CG land. During your research have you discovered anything to the contrary?

There is a difficulty in that Common Good law is fairly obscure and mostly based on case law where it may be difficult to find exact parallels. But the two most recent cases before the Courts of Session seem pretty clear cut; schools were being proposed on Common Good land and the Courts gave the green light. That’s not an opinion, that’s a fact.

I’m assuming that any challenge will be based on older cases, with less similar circumstances, and will essentially have to argue that the Courts of Session were wrong in those two recent cases. That strikes me as a fairly high legal hurdle.

[Porty]

Can't see what they hope to achieve by this to be honest.

They may ask for a financial donation?

[Porty]

What did PPAG have to say and how did it go down?

[Maria]

It had been requested by several members that this item be placed instead on the agenda for October's meeting , but this was declined. When asked why it had been submitted for AOCB so late, Ros Sutherland, the PPAG rep, explained she had been suffering from flu, so couldn't submit it earlier.

The meeting was told by the Chair that it wasn't an item for open discussion, but was merely a report from a CC group member. Under AOCB, Ros, read out a statement from the group regarding the history of their current legal action from their perspective. Some questions were directed to Ros, but mostly she reiterated the line that PPAG were merely presenting a report and was not going to answer questions. She did, however,in reply to one question, say that their legal advice had been that a case could not be brought until a planning application had been made.

Cllr Child refuted many of the assertions made in the PPAG report.

[wangi]

The meeting was told by the Chair that it wasn't an item for open discussion, but was merely a report from a CC group member. Under AOCB, Ros, read out a statement from the group regarding the history of their current legal action from their perspective. Some questions were directed to Ros, but mostly she reiterated the line that PPAG were merely presenting a report and was not going to answer questions. She did, however,in reply to one question, say that their legal advice had been that a case could not be brought until a planning application had been made.

I felt there was a big problem that PPAG obviously felt the statement was fact and as such could simply be read out without further comment and discussion. However of course it is based on their opinions and the actions detailed in the report result from that. Of course it would require discussion as others have equally valid view points.

Here's the report, click to view PDF:


PPAG stated they were keen for this information to be made available to the Portobello community and that it hadn't been been released to the public domain previously (looks like some of the EN comments?).

I asked Ros why this action wasn't taken years ago when the site was selected - as it could have been - answer: "our legal opinion disagrees". Also asked why they didn't opt for the quicker option of an interim interdict: "our legal opinion disagrees". Ros disagreed this could look like brinkmanship. I feel It's very unfortunate (to put it mildly) this has been left so late and is delaying the delivery of the new school.

I'd be very interested to see their legal opinion, and how it squares with the two recent cases in Lanarkshire that would seem to overwhelmingly support the Council's position.

I believe none of the comments will be minuted, since "there was no discussion".

[rmolehusband]

Portobello Park Action Group has consistently supported the need for a new high school in Portobello and has consistently supported the need for retaining green space in Portobello.

The second half of the last paragraph is a lie.

How can someone be given the opportunity to address PCC, read out a statement which is knowingly false, and not be challenged on it? Can I perhaps come along and read out some romantic fiction that I penned?

Ultimately, it makes no difference, it's the death rattle of a lost cause, but have these people no integrity whatsoever?

[Franck]

Whatever else you can say about PPAG, they have got themselves an outstanding QC.

[Porty]

Ultimately, it makes no difference, it's the death rattle of a lost cause, but have these people no integrity whatsoever?

What was the purpose. Did they try and persuade the CC to write to the council and ask for joint legal action?

[Porty]

Whatever else you can say about PPAG, they have got themselves an outstanding QC.

How come?

Roy Martin is undoubtedly an outstanding QC but there's no evidence he's given PPAG anything other than the oft quoted opinion on the alienation of CG Land, which was 5 years ago and is largely irrelevant now that no land will be sold off for housing.

[Franck]

Whatever else you can say about PPAG, they have got themselves an outstanding QC.

How come?

Roy Martin is undoubtedly an outstanding QC but there's no evidence he's given PPAG anything other than the oft quoted opinion on the alienation of CG Land, which was 5 years ago and is largely irrelevant now that no land will be sold off for housing.

I'm sure no-one has evidence of any advise he's given outwith PPAG themselves.My only point is they have got a good QC, nothing more, nothing less.

[seanie]

PPAG have made reference to their 'Legal Opinion' a few times, and always in very similar terms;

3 November 2006 –PPAG submission to SPP11 Consultation

There is a ‘Legal Opinion’ by Roy Martin QC to which states

“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.”

21 December 2006 - PPAG deputation to Full Council

There is a lot of uncertainty about whether the council is entitled to build on the Park. Roy Martin QC, Dean of the Faculty of Advocates, has provided a legal opinion to say the Park and Golf Course are common good land and, if this is found to be the case in court, that there would be limitations upon the entitlement of the Council to alienate the land forming the Park.

The original opinion from Roy Martin QC would appear to be perfectly reasonable and measured. If the land was Common Good (now agreed by the Council) then there would indeed be limitations on its alienation. And PPAG still seem to be relying on this opinion as the basis of their legal action. They themselves state;

In March 2010, in a deputation, PPAG informed the Council that, based on the legal opinion from Roy Martin QC, it remained PPAG’s intention to launch a legal challenge at the appropriate time.

The obvious problem being that the opinion they've described doesn't actually conflict with those obtained by the Council. Because whilst there would be limitations (you couldn't flog it for housing for example) the Courts of Session have already indicated that those limitations don't prevent the building of schools on Common Good land.

From the second case heard in the Outer House;

Although no opinions were issued, the decision in South Lanarkshire Council indicates that, for a transaction to amount to a "disposal" of land for the purposes of section 75(2), there must be an act whereby the local community are deprived of the benefit of the land in question. It seems to be implicit in the decision that the use of land held for the purposes of the public park to construct a school and playing fields does not involve any "disposal" for the purposes of the subsection. In view of that decision, which is obviously binding on me, I consider that there is no "disposal" in the present cases. It follows that section 75(2) has no application. In these circumstances I refused the prayers of the petitions as unnecessary.

'Disposal' ordinarily means simply the sale or transfer of title of an asset, but within Common Good law 'disposal' can have a much wider meaning of simply anything that deprives the community of the use of a Common Good asset. In these two cases the Courts applied those two tests.

Firstly there was no 'disposal' in the narrow sense as the land would remain in the ownership of the Council. But more importantly there was no 'disposal' in the wider sense as the community would continue to derive benefit from the schools and playing fields. The Courts have established that schools are essentially compatible with the Common Good status of the land, so no disposal, alienation or appropriation actually occurs.

It'll still be Common Good land; it's just that it'll have a school on it.

[Porty]

I'm sure no-one has evidence of any advise he's given outwith PPAG themselves.My only point is they have got a good QC, nothing more, nothing less.

Aye , I thought that's what you meant.

[Porty]

Thanks again Sean.

In my opinion, PPAG do not have the funds to see this through or to get the best legal advice. This appears to be supported by them not having taken action earlier. They held out hope the council would take themselves to court. It's been mentioned at several meetings, confirmed above and in the recent deputation.

Its not a particulalry bright strategy. Why shake hands with the devil if you can afford not to?

its akin to Alex Ferguson publically pleading with Barcelona to give Man Utd a three goal start in the Champions league. he asks them at meetings and then gets his lawyer to write. Self humiliating and zero chance of success. Tonto.

PPAG obvioulsy thought that having been turned away a couple of times the council would change their minds simply because a request came from a lawyer!!!What part of No don't they get?

I will be surprised if the council open the dialogue (with PPAG) that they spoke of prior to the show of strength at last weeks council meeting

I know not what they were expecting from last nights PCC meeting but now PPAG stand alone, in every sense.

[seanie]

As far as I can see PPAG have alternated between threatening the Council with court action, then asking the Council to pay for it;

December 2008 – Full Council meeting decides that, on legal advice, they will not be taking the matter to court.

December 2008 – Diana Cairns tells the Evening News that PPAG intend to launch a legal action.

June 2009 – Alison Connelly tells the Evening News that PPAG intend to launch a legal action.

February 2010 - PPAG writes to the Council suggesting a joint court action.

March 2010 – Council replies saying no, as already decided, they will not be taking the matter to court.

March 2010 – Full Council meeting confirms that, as already decided, they will not be taking the matter to court.

March 2010 – PPAG deputation to the Council states that they intend to launch a legal challenge.

September 2010 – PPAG writes to the Council stating that they intend to launch a legal challenge.

March 2011 – PPAG writes to the Council suggesting a joint court action.

April 2011 – Council replies saying no, as already decided, they will not be taking the matter to court.

July 2011 – PPAG finally launch a legal challenge.

Although they haven't yet raised the funds to see a court action through...

...the court action they've been threatening since December 2008.

[Porty]

Dear Mr Guardiola

Judicial Review of Champions League Final 2011

I write to request that FC Barcelona initiate court proceedings to remove any doubts that your club did in fact win the above trophy on Saturday May 28th of 2011 at Wembley Stadium .

Manchester United FC have taken written advice from John Motson (BBC) a leading football expert who says:

"Having watched the game several times and based on previous case history ( v Chelsea, Bayern Munich, Benfica) I believe there is a reasonable chance that Manchester United could have won the game and therefore the champions league.

I appreciate that you will perhaps not feel the need to legally challenge the result. After all the score was 3 -1 to Barcelona with goals by Pedro Rodriguez, David Villa and Lionel Messi to our one goal from Wayne Rooney but the fact remains the result has not been tested in court. There is a lot of people in Manchester and Madrid who believe the outcome requires rigorous legal examination.

It is like a nasty sore in our communities and we believe it will be for the common good to clear this matter up, once and for all.

There will of course be substantial fees incurred to fund this legal challenge. I think it is fair that given FCB won the competition and substantial sums of money , they pick up the bill, ok amigo? You need to know you won just as much as we do.

I understand that you will have to discuss this matter with UEFA and FCB's advisers. I will therefore allow, say 3 weeks, for consultation.

If I have not heard back from FCB in that time I will have little option to instruct our solicitors to cut and paste this body of text and send it to you once again on their letterhead.

I really would rather not, how you say, "put the frightners on" as I fear it may sour the relationship between our great clubs. Hopefully we can get this to the Hague and over and done with by the end of the year.

Cheers and see you in a few weeks.

Yours sincerely

Sir Alex Ferguson




.

[Puerto bella]

Whatever else you can say about PPAG, they have got themselves an outstanding QC.

How come?

Roy Martin is undoubtedly an outstanding QC but there's no evidence he's given PPAG anything other than the oft quoted opinion on the alienation of CG Land, which was 5 years ago and is largely irrelevant now that no land will be sold off for housing.

Careful. That sounds to me like defamation of one of our leading Senior Counsel's reputations.

[seanie]

How so?

[Puerto bella]

'but there's no evidence he's given PPAG anything other than the oft quoted opinion on the alienation of CG Land, which was 5 years ago and is largely irrelevant now that no land will be sold off for housing.'

......you can take from this comment that the writer is suggesting that the QC may have failed in his duty and given out of date advice. I take from this that clearly this person has not worked directly with Mr Martin.

[Porty]

I fail to see how one could reach the conclusion you have from what i said. Im sure mr martin provided proper advice based on the question asked. From his answer or rather from what is oft quoted, it appears irrelevant, to a situation where there is to be no disposal of cg land thats my opinion. I have not worked with mr martin, josep guardiola or fergie.

[seanie]

As I've already said, the original opinion as quoted would appear to be perfectly reasonable and measured. But when it was given back in 2006 the principle question was whether the land was Common Good, and the prospect of housing on the park to fund the schools was still fresh. And the opinion is undeniably correct; if the land was Common Good (now agreed by the Council) then there would indeed be limitations on its alienation.

But as quoted it doesn't actually address the extent of those limitations and, as demonstrated in two cases in the Inner then Outer Houses of the Court if Session, the legal precedent is that schools can be built on Common Good land without permission from the courts.

That opinion of the Courts is of course open to challenge, but that's the legal precedent established.

admin: a number of posts split to On defamation, vino & Talk Porty...

[seanie]

Anger at school site proposal

[seanie]

Summer's out for school

[Makaveli]

3 kids using the park on one of the nicest days of the year. Sums it up for me really. A very under used space which will be better utilised as a school.

If they want to go to a park then go a couple of hundred yards down the road and you can go to a nice park like the Figgy which even has a nice play area for kids. My kids would be insulted if I took them to Porty Park as it is a disgrace compared to the other nice parks we have in Porty!!!!

[Franck]

3 kids using the park on one of the nicest days of the year. Sums it up for me really. A very under used space which will be better utilised as a school.

If they want to go to a park then go a couple of hundred yards down the road and you can go to a nice park like the Figgy which even has a nice play area for kids. My kids would be insulted if I took them to Porty Park as it is a disgrace compared to the other nice parks we have in Porty!!!!

Well maybe your kids need a reality check!It's actually quite a fun space for kids, especially now the path round the side has matured...great place for games of hidey.

I guess there was more than 3 kids using the park during that recent hot spell too.

I'm not entirely comfortable with the way the pro-school voices have been conducting themselves recently tbh.On the A New PHS in the parks facebook page, they seem to be highlighting how crap they reckon the park is and how much better other local parks are.Now that may be the case, but I doubt it's a point of view planners take into consideration.Access & size of pitch are more relevant I'd guess.

There seems to be a superiority about the pro-school campaign being orchestrated by people, who imo, are showing the same lack of class as the anti-school mob.Two sides of the same coin, The Old Firm of Portobello.
Fwiw, I've used that park since I was a child in P2 in Brunstane Primary, whether it's been playing football or general tom-foolery and although I accept the school has to go there, a degree of class could be shown by those wanting the school to go there, a kind of moral high ground.And consider the local kids who are allowed to play there without the supervision of their parents...that facility will no longer be there.

[wangi]

I agree Franck - there's no need to talk down Portobello Park.