• Ruling says council doesn’t have the right to build on common good land
• Three judges uphold appeal of protest group
The City of Edinburgh Council picked a section of Portobello Park as the site for a new 1,400-pupil Portobello High School, but the scheme met opposition.
The protesters lost an initial hearing, with a judge stating that although the park had been gifted to the city in 1898 for exclusive use as recreation ground and was “inalienable common good land”, the council had the power to use it for the new school.
However, three judges at the Court of Session in Edinburgh have upheld an appeal by the Portobello Park Action Group Association.
Giving the judgment yesterday, Lady Paton said that if the earlier decision had been correct, members of the local community would no longer have any right to prevent encroachment on to common good land.
“So long as a local authority’s plans involved a transfer of the land from one of their functions to another, they could proceed unhindered and at will,” said Lady Paton, sitting with Lords Emslie and Philip
“And, for practical purposes, the future of every piece of inalienable common good land in Scotland – notably public parks and other open space recreational and amenity provision –would be in jeopardy.
“Subject only to planning constraints, local authorities would be free to appropriate open space common good land, even if nominally inalienable, away from dedicated recreational or amenity use. They could construct over the land housing, offices, schools or slaughterhouses, or use it for sewerage or waste disposal purposes.”
The plans for the new Portobello school date from 2006, and in her decision earlier this year, Lady Dorrian held that the association had taken too long to go to court – lodging a petition in July 2011 – and dismissed the case.
She also said that, in her view, the council was allowed under the Local Government (Scotland) Act 1973, to “appropriate” the park land for the school.
Lady Paton said the appeal judges believed that the association had been entitled to wait to lodge its petition until planning permission had been granted in February 2011.
She said: “The park is inalienable common good land. At common law, it may not lawfully be encroached upon. The 1973 act, in our opinion, provides the council with no contrary power, and we find that the 2003 Local Government in Scotland Act does not do so, either.”
The association was granted a formal declaration that the council had no power to appropriate for use as a school any part of the inalienable common good land at Portobello Park, and the council’s decision to use the park as the site of the new school was set aside.