New Portobello High School - PPAG Judicial Review

[seashell]

admin: For earlier discussion on Portobello High School on Portobello Park see the following threads:

• New Portobello High School - Where and how? (starting Oct 2005)
  New Portobello High School - on going issues (starting Oct 2007)
  New Portobello High School - planning application (starting Oct 2010)
  New Portobello High School - planning application granted (starting Feb 2011)
  New Portobello High School - PPAG/"Save Porty Park" (starting Jun 2011)

The council have acted illegally,

Exactly how have they done this?

The Council has acted in accordance with clear legal precedent regarding the use (not disposal) of common good lands.

There is to be a judicial review (at the behest of PPAG) to consider if they have acted within their powers, rather than a court case.

Until the Judicial Review is concluded, you cannot say that the council have acted illegally. That is akin to pre-empting any decision of our learned law lords and rather premature, to say the least.

Please - get your facts right. Making such wild statements does your cause no good. I quite believe that you wish a new school - but do not want it in the park. Of course, it could be argued that as common good land, using the park for a school will actually benefit many more of the people of Portobello than the current scheme of parkland and golf course and is therefore a perfectly wonderful use that will afford many more opportunities.

[seanie]

There was some sort of preliminary hearing on Tuesday, scheduled for 5 hours which couldn't have come cheap. Hearing's still set for December as far as I know.

[seanie]

Update from the Council;

New Portobello High School
Legal Update at 29 November 2011

A Petition for Judicial Review was served to the Council in August. It aims to prevent the new Portobello High School being constructed on Portobello Park. A court date of 9 December was allocated but at the Council meeting on 22 September we were asked to try to resolve the legal matters before then.

We have communicated with the petitioners through their agents and submitted our Answers in response to their petition. However, the petition has not been dropped and so we lodged a motion asking for it to be dismissed due to the delay in bringing the action.

This matter was initially considered by the Court on 15 November when it was established that Court diaries cannot accommodate full consideration of all matters before the original allocated date (9 December). It is also now clear that the legal arguments are complex as the basis of our position is very different to that of the petitioners.

There is a requirement for a second day in Court but no further court time is available this year. These important issues need to be resolved quickly and efficiently and in practical terms it is sensible for all matters to be heard together, on two consecutive days. It has been agreed by the parties to reschedule the hearing to allow for this. The Court has identified that the Petition can be heard on 5 and 6 January 2012.

The Council remains confident in its legal position.

[Pal of Porty]

I reckon one day will do it though.

[Porty]

Shame about the delay.

Two days in Court won't come cheap. Maybe why PPAG have refrained from organising more loss making events?

Come January 6th, will the Spanish be the only ones celebrating?

[Pal of Porty]

......Come January 6th, will the Spanish be the only ones celebrating?

Claro

[Porty]

Council cause further delay to new school
The court case has again been delayed, due to the council insisting on raising a petition against PPAG,

Do they mean the Council have raised a petition to have the review dismissed due to time delay by PPAG raising their own petition?

The only possibility of overturning the decision comes via judicial review. There is a special requirement
that judicial review can only be heard if it starts within six weeks of the original determination of the application.

Whether one uses Dec 2008 when the decision was made to build on Porty Park or March of this year when planning was granted. PPAG took a lot longer than 6 weeks to lodge their petition. Nothing appears to be black and white when it gets to court but it doesn't look too good for PPAG.

Judging by the desperation in their latest update, the allocation of a two, as opposed to a one, day hearing must have hit them hard financially. PPAG obvioulsy wanted to keep the consideration narrow, all over in a day. The Council asked for a full consideration, which is prudent, why allow the oppo to choose the battle ground?

The costs of prep work, solicitors and counsel will have doubled for PPAG and be between £5k and £8k per day. It won't do any harm to contact Drummond Miller and suggest they ascertain the depth of their clients pockets.

I'm guessing theres bums squeaking up Park Avenue way with a bit of an echo around Rosefield Park.

[seanie]

There is a principle that legal action should be raised within a reasonable period of whatever decision being challenged was made. I can't imagine they're challenging the granting of Planning Permission, but rather the decision to locate the school on the park, and that was taken in December 2008. By the time they get to court it'll be over three years since the decision they object to was made.

That being said, I don't think there are any proscribed time limits for a judicial review and I've also read that the Courts are generally reluctant to dismiss things purely on the basis of delay.

[Porty]

That concurs with my own findings but 3 years is a considerable delay, especially when there's numerous public records of PPAG stating they were taking legal action back in 2008.Including minuted at the Council Chambers. DC blurted.

I also doubt they are challenging the granting of Planning Permission but I wish they were:

Judicial review is not normally a suitable option for challenging a planning decision. The
court would not consider the planning merits of the case, but rather would consider whether
the decision was arrived at in the correct way. The process is potentially very expensive,
since it involves the High Court. In any case, even a successful outcome would not
necessarily result in the original planning permission being rescinded. The Court might
decide in some cases that the decision had not been properly taken, but that the matter should
be referred back to the LA to take account of some other factor not originally considered.
Many judicial reviews of planning decisions are started by commercial organisations like
supermarkets who often make planning applications themselves and wish to establish a point
of law that may be of importance to them later on.

[seanie]

Bid to dismiss school challenge

[Porty]

"Ros Sutherland, chairwoman of PPAG, said: “As far as we’re concerned, the hearing is going ahead."

Seems an odd thing to say on behalf of the group that is bringing the action. Why does she think people would doubt?

[rmolehusband]

I guess we just have to wait a bit longer, shame.

Amid the countless lies and mistruths on their site, my favourite line is still this one.

This land belongs to US, not the Council.

Who exactly is 'us' in this case? Some residents of Park Avenue do clearly think it belongs to them, but assuming they mean the people of Portobello, or Edinburgh, then the majority of 'us' want the school to be built and so there is no issue.

[seashell]

I'm hoping to be able to go along to the Court of Session for at least one of the two scheduled days. Anyone else planning on attending?

[Porty]

yes. have to make a work escape plan. what hours does the court keep?

[wangi]

A comfortable 10-4 normally, innit? (if my jury duty stints are anything to go by)

[seashell]

Yup - should be 10 to 4. This actually ties in with a lot of work-related issues, so hope to go in offical time.

[wangi]

Remember the last race that caused a bit of strife re secret use of funds raised and was subsequently done as a free race... Well here's PPAG's boxing day special:

http://scottishrunningguide.com/news.ph ... _park/full

Campaigners working towards saving Edinburgh's Portobello Park have organised a Boxing Day 5k race to raise funds for the campaign.

The 5K will take place around Portobello Golf course in Edinburgh and starts at 11am, registration will take place from 10.15am. Entries will be taken on the day or if you like you can email your name, gender and d.o.b. to saveportypark@gmail.com.

Entry is free but any donations, which will be used to help preserve Portobello's fabulous green space, would be kindly appreciated. Toilets, changing facilities and refreshments will be available after the race at St Martin's Church Hall, Magdalene Drive (Duddingston Park South end).

If you would like further details about this event you can either phone Sheila on 07776 194169 or email saveportypark@gmail.com.

'Secret' use of proceeds from 5K run

Ros Sutherland, chair of PPAG, said: "The race is being run as a profile-raising event and if you look at the flyer that's been circulated it says there is a cost to enter the race, which is £5 per person, and there are prizes.

"There is a cost involved with hosting a race and the entry fee is to cover those costs.

"At this point I couldn't comment (on whether the entry fee will go towards the legal costs] because I don't know how many people have entered.

"I haven't totalled the cost in terms of our expenditure so I'm not in a position to comment on that because I have no idea how many people have entered or what is our outlay."

They're hoping for 200 entrants at £5 a pop.

Does it actually cost £1,000 to host a 5k race for 200 people?

[rmolehusband]

Looks like another 'donations only' race on boxing day.

http://www.scottishathletics.org.uk/ind ... emId=14381
http://scottishrunningguide.com/news.php/1078/

Kept very quiet again.

[seanie]

The Court hearing is less than two weeks away - surely they must have the money for that by now?

[Porty]

I doubt it. Inside track says that PPAG don't have enough funds raised and are having to fork out personally. Must be hoping the run lessens the burden.

[seanie]

Are QCs like taxis? Does the meter keep running as long as things drag on?

[rmolehusband]

Does the meter keep running as long as things drag on?

I don't think so, but I've never employed a QC. I'd expect that they'd pay for actual time working on the case - preparation, court time, etc. There could be a small retaining fee, but I doubt it.

I've been told an announcement of the boxing race appeared on the 'Porty People' facebook group today, but quickly disappeared. Lot of potentially p*ssed of Towerbank parents on there I guess.

[seashell]

You are billed for the actual time counsel spend on the case - considering papers, meeting with clients, drafting answers (this tends to be on an hourly basis) and of course for their time in court (generally on a daily basis). If you use senior counsel, they will often use junior counsel as well, so that is someone else to pay for. Generally, you are billed after the court appearance, by which time you may have accumulated quite a large bill. It may be that PPAG are hoping for costs to be awarded in their favour - which would mean that the council (i.e. the people of Edinburgh) would have to pay for any legal costs they have accrued.
Rest assured that employing counsel is a very costly business indeed.

[Porty]

1 day in the COS will be approx half the cost of two days. PPAG didn't raise enough money to fund one day.

[seanie]

School's future raises questions

[seashell]

Petition for Judicial Review tomorrow at Court of Session. I'll be there - anyone else coming?

[Bob Jefferson]

Wow, that's crept up on me. Would love to be there but sadly I'm working. Up for some celebratory drinks though. Champagne on ice!

[seanie]

I'll try to go.

My understanding was that the hearing had been rescheduled to two days so all the issues could be gone through. But PPAG's 'Latest News' makes it sound like it could drag on longer; they're appealing for funds for the 'next stage', beyond the Thursday/Friday hearing.

[rmolehusband]

...But PPAG's 'Latest News' makes it sound like it could drag on longer; they're appealing for funds for the 'next stage', beyond the Thursday/Friday hearing.

My understanding is...

The purpose of PPAG's judicial review is to force to the council to seek legal permission to build on the park; a judicial review deal with misuse or abuse of procedures and PPAG's argument is that since the planning process did not include the seeking of permission, the process was flawed and the granting of planning permission is invalid. Even if the review determines that the council must seek permission, the review can make no judgement on whether or not permission should then be granted. In this case then council would have to go to the courts to seek permission and it is to be assumed that PPAG would oppose this vigorously - hence stage two.

[seanie]

Well I suppose things may become clearer tomorrow.

[Mark Cameron]

Anyone have any news on today's proceedings?

[seashell]

An interesting submission from PPAGs counsel, turning on the interpretation of the statue (Town and Country Planning (Scotland) Act 1974, ss 73 - 75
Basically, their counsel proposed that there is provision for the disposal of inalienable common good land, but not for the appropriation of it. If the land is to be used for a school, rather than sold off, then this is appropriation. The contention is that there is no method provided by statute for a local authority to appropriate common good land. Her ladyship noted that was difficult to see why there should not be power to appropriate if there is power to dispose, to which it was responded that this was not a lacunae in the law, but rather that it reflected the preceding act (1947) which also was silent as regards this issue.
Moving on to precedents, the decision in the case of North Lanarkshire Council found that in that instant it was not a disposal, however it did not appear to consider if it was an appropriation. Her ladyship wondered what else it could be. With SOuth Lanarkshire Council, the arguments turned on whether the particular circumstances constituted a disposal and again did not consider appropriation.
It was contended that if the land continues to be used for a public purpose, then the underlying assumption is that this is an appropriation.
A number of historical authorities were also quoted.
I had to leave before the session ended, so not sure if the Council started their submission.

[seanie]

The Judge did comment on the line of argument...

If a local authority were seeking to build a leisure centre for the benefit of the community on inalienable Common Good land then, according to the PPAG interpretation, they would be prohibited to do so since there was no legal mechanism for such an 'appropriation'.

However should, as an alternative, the local authority seek to buy a site for the leisure centre at considerable public expense, then they could conceivably sell the inalienable Common Good land to fund such a purchase since there was a legal mechanism for disposal.

The judge offered the view that that would be 'preposterous'.

To which Counsel replied 'yes and no'.

[seanie]

The Council only had the last 20 minutes of the day to start their arguments so we didn't hear much, but it was raised that the arguments that constituted the core of the PPAG case bore no relation to the basis for the petition for judicial review or the arguments that lead up to it.

Essentially PPAG have repeatedly argued that the Council had to go to court to get permission. Even today their QC repeated more than once that the petitioners would be satisfied simply if the issue was decided upon by the courts; they desired an independent arbiter.

However, the core of their case is that the issue cannot be decided by the courts; although the council could seek permission to dispose of the land there is no legal mechanism to seek the appropriation of the land. The 1973 Local Government Act is simply silent on the subject and so by presumption it is a legal impossibility.

[seanie]

By extension the previous rulings in the South & North Lanarkshire cases, which would appear to form the basis of the Council's earlier legal advice, were simply wrong. Whilst they appear to have interpreted 'disposal' widely so as to include appropriation, alienation etc. this was wrong and only a narrow interpretation of the legislation was justified, even if the outcomes were preposterous.