Kenny MacAskill ‘disappointed’ after Portobello High School protesters win legal fight

Edinburgh East MSP Kenny MacAskill has expressed his disappointment that a protest group has won its fight to stop a new school being built on common good land.

• MacAskill says 1,300 kids in crumbling school need new building

• Ruling says council doesn’t have the right to build on common good land

Commenting on the surprise announcement that an appeal against construction of the new Portobello High School has been accepted by the Court of Session, Edinburgh Eastern MSP Kenny MacAskill said: “I am surprised and hugely disappointed by this decision, which I think it is fair to say no one was really expecting.

“We’ve currently got over 1,300 kids being educated in a building that is falling down – this just isn’t sustainable.”

Campaigners have won a court battle to block plans to build a school on part of a public park, in a ruling which could help preserve community open ground throughout the country.

Edinburgh City Council picked a section of Portobello Park as the site for a new 1,400-pupil Portobello High School, but the scheme met opposition.

Mr MacAskill added: “While it is unfortunate that the new school is to be built on park grounds, the proposals do of course include a swimming pool and community sports pitches.

“The Council has my full backing in any attempts to further appeal this decision, or to explore alternative options. There currently is no plan B, but whatever happens a new school needs to be constructed as soon as possible.”

The protesters had 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 power to use it for the new school.

However, three judges at the Court of Session in Edinburgh have upheld an appeal by Portobello Park Action Group Association.

Councillor Paul Godzik, the city’s education leader, said: “We are surprised and extremely disappointed with today’s decision and I am sure the vast majority of the local community will share our disappointment. There remains a compelling argument for the new school. We are now seeking legal advice on our next steps.”

Enchroachment

Giving the judgment today, 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. 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,” stated Lady Paton, sitting with Lords Emslie and Philip.

“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. All or any of these would fall within the ambit of one or other of their statutory functions.”

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.

Anxious

“The court is entitled to take into account the considerable difficulties faced by members of the public who wish to oppose a development which they contend is illegal. Litigation is expensive, time-consuming and sometimes conducted at considerable personal cost. It is not therefore to be undertaken lightly,” she added.

“This is an anxious and difficult case. On the one hand, there is clearly a perceived need for the building of a new and improved school. The council’s efforts in this direction have been supported by many members of the local community over an extended period. On the other hand, these plans involve appropriation of much of the open southern section of Portobello Park which, since 1898, has been dedicated to the open space amenity and recreation of the community at large.

“The park is admittedly 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.