Holyrood plan to change law over Portobello school

The city council has said its preferred option remains developing the new Portobello High School on part of the park, despite a court ruling preventing it from using the site.

It will now pursue a Private Act of Parliament to seek permission for the school to be built on the green space.

The council has already written to Scottish Government ministers to seek their support for a change in the legislation.

If successful, the local authority plans to create a new park on part of the school’s current site in a bid to appease protesters who blocked the council’s previous attempts to build the school on Portobello Park, which is common good land.

Residents would have a say on what the new park would look like, as well as being given free access to the all-weather pitches – planned to be located next to the new high school on part of Portobello Park – while not in school use.

The cost of converting part of the current school site in Duddingston Road to grass and including fencing, lighting and a small play park would be around £650,000.

Council officers are recommending a “twin-track approach”, which would include a back-up plan should the option to build on Portobello Park prove unsuccessful.

As part of this, the council is considering a rebuild on the existing site which would involve using the current high school site and extending it into the area currently occupied by St John’s RC Primary.

This would produce an area of 3.46 hectares for the high school, larger than the existing site but still much smaller than the target site size of 4.5 hectares. It would also require St John’s to be relocated to a different site – an option likely to be unpopular among parents of pupils at the primary school.

The council is also looking at the possibility of buying the former Scottish Power site at Baileyfield, as well as considering a site on the Brunstane Estate for the new school should a Private Act of Parliament be unsuccessful.

The details will be included in a further report to councillors next month on whether or not consideration should be given to purchasing the Baileyfield site as a fall-back option. The area available for a new school on the site is around three hectares, on which there are a number of properties leased by commercial occupiers which would  require to be freed up.

However, the council estimates that a new high school on a site other than Portobello Park is unlikely to be created until 2017.

The city’s education leader, Paul Godzik, said: “We are committed to delivering these schools [Portobello and St John’s] and we still believe that the park is the right place to build the new high school. We have weighed up the different options for achieving this and consider that a Private Act has the best prospect of success. We will now pursue this and consult widely with the local community on our proposals.

”Further to this, I am pleased to announce that we plan to build a new park to help address concerns by some of the local community around the loss of green space. I’m sure this news will be welcomed by all Portobello residents.”

Portobello Park Action Group (PPAG) appealed an earlier Court of Session ruling backing the council’s plans to build the school on Portobello Park. Last month, it was announced that PPAG’s appeal – which challenged the council’s legal right to use part of Portobello Park for the new school – had been successful.

Education chiefs have also decided not to appeal as it is “unlikely to succeed”.

In a report due to be discussed at full council next week, director of children and families Gillian Tee said: “Efforts to resolve the matter are considered to be better directed towards addressing what has been identified as being a significant gap in the legislation.”

Last month’s Court of Session decision in favour of PPAG, which ruled that the council had no powers to appropriate common good land, revealed a significant gap in existing legislation in that local authorities do not have power to appropriate inalienable common good land, no matter what the intended purpose is, but are entitled to sell the land – provided it is sanctioned by the Sheriff Court or the Court of Session.

It is hoped that a Private Act of Parliament would allow the city council to overcome the legal loophole and build the school on the park.

However, it could be up to five months before the local authority is in a position to introduce a draft bill to the parliament, with a bill potentially receiving Royal Assent within six to 12 months of introduction, assuming it is passed. The estimated legal costs would be around £50,000.

In 2003, the National Galleries of Scotland lobbied ministers to allow the development of the underground link on land at Princes Street  Gardens via a Private Act of Parliament.

Portobello timeline

January 2006: Education chiefs reveal proposals to replace the crumbling Portobello High School and adjacent St John’s Primary School, following complaints from parents and pupils about both the fabric of the building and the lack of sports pitches at the current site in Duddingston Road.

December 2006: Portobello Park is announced as the preferred site following a lengthy consultation process, with councillors rejecting the two other alternatives – Portobello Golf Course and the current site. A rebuild on the existing site was ruled out due to its limited size and the necessity for a disruptive and expensive decant.

December 2008: Legal opinion states that the council does not require court permission to appropriate land. Opposition campaigners Portobello Park Action Group (PPAG) say they will fight the plans as they believe the valuable green space and parkland should be secured for future generations.

February 2011: Planning approval for the school is granted.

July 2011: PPAG lodges a petition with the Court of Session against council plans on the grounds that the local authority cannot appropriate any part of the park because it is common good land.

March 2012: Judge Lady Dorrian dismisses a petition from PPAG on the grounds of excessive delay in bringing it forward and concludes that the council had the power to appropriate inalienable common good land. PPAG announces it will appeal.

September 2012: Campaigners win court battle to block plans to build school on the site after the Court of Session rules the council has no powers to appropriate common good land.

October 2012: Council announces it will pursue a Private Act of Parliament in an attempt to get the school built on Portobello Park.