Martin Hannan: Let people, not judges, decide

Of course there should be no development – not a factory or school or a single house – on green land when there is so much brownfield space waiting to be developed.

I would estimate there are millions of square feet of brownfield sites and derelict buildings across Edinburgh and the Lothians. I know that about 17 years ago there were 10 million brown square feet in the city, according to the planning department, and not a lot of that has been developed. And just look at the increasing number of disused premises where the “for sale” signs have rotted away with age.

All of these should be developed before any encroachment takes place on green space, and it is time for the government and local councils to say so and permit faster development of brown before green.

Sadly, there are some areas of the city where brown land is in short supply and there may not be enough for developments such as new schools. You’ll have guessed I am writing about Portobello.

The judges in the Court of Session have made their decision and Portobello Park will not be the location for the new school. Unlike others, I did not think it was an open-and-shut case that the judges would approve the use of the park for the new school, because it is common good land and the courts have always considered each case very carefully and rejected several plans for such common good areas elsewhere in Scotland.

I actually reported on one case 15 years ago, when the Scottish courts administration, backed by the local council, wanted to build a new sheriff court on Dumbarton Common. The judges threw that one out, too.

I well remember at the time that the judges in the case made it clear that the courts should always have the right to make the final decisions on the use of common good land and assets. I thought at the time that this was yet another example of the  arrogance of the Edinburgh legal establishment.

Yet the courts must have the right to decide when there is considerable dispute over use of common good land, as is the case with Portobello. Whatever the rights and wrongs of the case for the park, the judges have spoken and their verdict was as clear-cut as I have ever read: “The park is admittedly inalienable common good land. At common law, it may not lawfully be encroached upon.”

End of story. Even when an overwhelming argument for development on common good land is made, as was certainly the case for the new school, the laws on “inalienability” will always come into play. And when you know that some common good laws date back to 1491, you realise that this is an ancient legal precept.

What Lady Paton and her colleagues have done is establish once and for all – at least until the law changes – that neither councils nor anyone has an automatic right to develop on common good land, even if a development is for the good of the commonality, as was the case with Portobello Park.

Is that the end to all development on common good land? I don’t think so. There is a simple factor, one that should override even the common good laws. It’s called democracy.

Whenever a proposal is made to develop on common good land, the people in the affected area should be the ones who should make the decision on whether that development can go ahead.

For example, the people in the catchment area of Portobello High School could take part in a referendum to decide whether the new school should be built on Portobello Park.

I know that allowing the people to decide these matters will be seen as revolutionary by the Establishment, but if we are going to build a new Scotland with greater democratic powers then this is the sort of solution that we need to think about.

It would require a new law to go before the Holyrood Parliament, one that would provide local answers to local problems. It would also take the judges out of the issue – something that is better for democracy in the long run.

A law allowing local votes on local common good issues would be binding. We all know that consultation exercises are shams that allow politicians to hide behind the cloak of seeming democracy. I’ve heard of very few consultation exercises that came back with different answers to the ones that the politicians wanted, and even then those consultations were ignored.

A referendum is different, however, and cannot be ignored, as the great Edinburgh congestion charge referendum of February, 2005, displayed. With almost 75 per cent of the votes cast being against the tolls, there was no way even the most blinkered of proponents could ignore that verdict.

In Portobello, the vote would have been yes to the new school, of that I have no doubt. So why not let the people have the say instead of the judges?

In the meantime, let the search begin for a suitable brownfield site for the new school. Brown is always better than green, and we’ve plenty of it.