Law query adds to park strife in bid to get new Portobello High School built

Andy Wightman, a well-known campaigner for land reform and an expert on common good territory in Scotland, said it had never been firmly established whether the park – on which the council was denied permission to build a new high school – could be classified as common good land and that any judgement on its status would have to be decided by the courts.

If the Court of Session confirms this view, it could remove the central legal hurdle blocking construction of the new school on the park land and render irrelevant the basis of a six-year battle with protesters campaigning against the move. Mr Wightman claimed there was a convincing argument for pursuing the matter in the courts and said “all the problems would disappear, and work could start tomorrow, provided the council has a contract in place [to build] – that’s why it’s so important”.

“Whether or not it is common good has never been contested in these court cases because both parties [Portobello Park Action Group and Edinburgh City Council] conceded that it was,” he said. “It wasn’t until 18 months ago that PPAG decided to go to court, at which point they chose to challenge the council’s decision to appropriate the land rather than challenge the fact it is common good.

“From their point of view, it suited them to say it was common good.”

In 2008, the city accepted the park’s common good status having previously refuted the assertion.

Mr Wightman said the reason for this remained “a mystery” and that the failure to “properly test the question” was either an “oversight, or arrogant or stupid”.

“It would have been prudent for them to have satisfied themselves in the fact it was common good before they conceded it,” he said.

John Scott QC, of Capital Defence Lawyers, said the Court of Session would adjudicate on the facts as presented or agreed by parties – such as the assumption that land is common good – but could choose to examine these more thoroughly.

But he added: “In reality, they would probably proceed on that basis unless there were agreed facts that were blatantly wrong. I suspect in reality they would not be inclined to do that because it would extend the length of a hearing. It could be that the court could proceed on the wrong basis. If it was not obviously wrong, then they might do that.”

Earlier this month, PPAG went to the Court of Session and appealed successfully against an earlier ruling granting the council permission to build on Portobello Park. The legal fight was predicated on the council’s right to “appropriate” an area of the park, which was denied, rather than questions over its ownership status.

It is understood the council has now met with Mr Wightman in a bid help settle the common good question.

A council spokeswoman said: “Our legal services team are already working with external advisors to review this as a matter of some urgency and priority. Should there be any doubt or question regarding the common good status of Portobello Park then the appropriate action will be taken.”

Alison Connelly, spokeswoman for PPAG, which has been fighting plans for a replacement Portobello High School on the park since 2006, said the group was “very surprised” by Mr Wightman’s claims.

“We are even more surprised at the suggestion that the council did not fully consider the facts before accepting that it is,” she added.

“Our view that it is common good land is supported by the senior counsel legal opinion that we obtained back in 2006. We are still confident that Portobello Park is common good land and we cannot see any merit in creating yet further delay in the provision of a new school by stepping backwards rather than forwards.”

Melanie Main, education spokeswoman for the Scottish Greens, said her party’s city councillors had previously raised this issue and said it was “regrettable” it was still “a source of  uncertainty”.

The news that the council was looking again at the common good question raised hopes among parents that a new school on Portobello Park may still be an option.

Sean Watters, chair of Portobello For A New School, said: “Common good is a murky area. I think if there’s still a question mark over it, the council have to go back and look at it again.

“If it turns out it’s not common good then we could have saved ourselves a lot of bother, but at the same time that means the school gets built. It would be embarrassing for the council but the most important thing is the school.”

Barbara Fraser, whose nine-year-old daughter. Ailidh, is in P5 at Towerbank Primary and due to start Portobello High in two years, said: “Perhaps the council didn’t think the common good issue was something that they needed to pursue so stringently, but it has now come back to bite us. It would be a great shame if we had lost some years in having our new school because of it.”

Analysis: Andy Wightman, Land reform expert and campaigner

EDINBURGH City Council cannot build a school on Portobello Park because it is regarded as common good land – land held by the Common Good Fund and consisting mainly of land of historic origin acquired through the Royal Charters of the City. It also includes, though, the streets of the New Town since the land upon which it was built was bought with monies from the fund.

One of the strange things about the current row is that nobody knows whether the land is common good or not. Park campaigners and the council both agreed that it was when they went to court but only the courts can say for sure whether it is. This is because there is no law which states clearly what common good land is.

Instead, courts have to interpret facts and circumstances according to previous legal cases. There is, however, a basic rule which is that, unless the council used powers in an Act of Parliament, all land acquired by former town councils is common good.

In the 19th century, numerous laws were passed on sanitation, roads, education, parks and so on that gave councils powers to buy land. Three of these – the Public Health (Scotland) Act 1867, the Public Parks (Scotland) Act 1878 and the Edinburgh Municipal and Police Act 1879 – gave powers to acquire land for parks.

In addition, the Edinburgh Extension Act which merged the burghs of Edinburgh and Portobello actually gave very specific powers to buy the land which is now Portobello Park.

It would be a good idea to find out if the park is common good or not. A lot of time, effort and money has been spent and still nobody knows the answer. If it turns out that it is then the Court of Session ruling stands. But if it is not then the council can go right ahead and build the school. A new school is urgently needed. The park may yet be the place to build it.

Common sense

What is common good land?

The basic definition of “common good”, according to a Scottish Parliamentary answer in 2006, is all property of a Burgh not acquired under statutory powers or held under special trusts.

Who did the council buy Portobello Park from?

They bought it from Sir James Miller of Manderston, who owned the Duddingston Estate, in 1898 for around £2.5 million in today’s money. It was purchased under powers from the Edinburgh Extension Act of 1896, which obliged the council to buy land for a park.

What are the restrictions of common good land?

The law on common good is highly complex. According to the Court of Session judgement earlier this month, the owner of “inalienable” common good land – which can’t be taken away from or given away by the possessor – can sell the land but not retain it for an alternative use. The definition of common good is not something that’s defined by law, so ultimately it’s up to the courts to decide whether land is common good or not, which is why calls have been made for a new law to clarify the issue.

Why is common good an issue in the Portobello High School case?

Because it has been suggested that Portobello Park is common good and the Court of Session has ruled that the council has no legal powers to use it for anything other than a park.

School funding proposals approved by government

FUNDING for three schools in Edinburgh and the Lothians has been approved, including £17 million towards replacing Newbattle High School.

Work on the ageing school is set to start within 18 months, as part a £1.25 billion Scottish Government plan to build 67 new schools across the country by March 2018.

St John’s Primary in Portobello and West Calder High School in West Lothian are also to be overhauled under the Scotland’s Schools for the Future programme.

Midlothian MSP Colin Beattie said of the Newbattle development, which will cost around £30m in total: “I am looking forward to our children being educated in a state-of-the-art building within which their full potential can be developed and nurtured. We need to proceed as quickly as possible so that all can benefit.”

Funding for St John’s Primary – which currently relies on temporary unit accommodation – is still to be agreed. However, the government will fund around 50 per cent of the cost of replacing the school, which is thought to be around £4.5m.

The original plan was to rebuild St John’s on the site of the current Portobello High, but that will depend on where and when the new high school is built.

The city’s education leader, Paul Godzik, welcomed the funding for St John’s.

“The future of St John’s is linked with how we progress the new Portobello High School,” he said.

“We are in the process of preparing a report for council in October which will identify the best way forward for this, and the options for building St John’s will be considered in tandem.

“Despite these challenges, we are fully committed to delivering both schools and I am sure the local community will welcome yesterday’s news.”

West Calder High School, which has the worst sports and dining facilities in West Lothian, is also set to undergo a £10m revamp.