Parents and pupils at the school were left devastated by a court judgment last week which ruled the council did not have the legal authority to build a school on Portobello Park because of its common good status.
However, retired property lawyer Neil King, who was a partner in city law firm Tods Murray, has drafted a bill to amend the Local Government (Scotland) Act 1973 to allow the council to appropriate inalienable common good land.
The offices of Justice Secretary Kenny MacAskill and Lothians MSP Kezia Dugdale are now examining the revised bill, which could be introduced either as a private members’ or a government bill. Under current legislation, Mr King said, the council was entitled to sell off common good land – with the consent of a sheriff court or Court of Session – but not appropriate it for a change of use.
He said: “The nub of the court’s decision was that the council, having conceded that Portobello Park is inalienable common good, section 75 of the Local Government (Scotland) Act 1973 gives the council power to dispose of [sell] the park if it obtains the consent of the court – which may impose conditions – but not to appropriate it, ie: retain it but change its use [with court consent].
“That is indeed what the section says but it must have been a drafting oversight because it seems inconceivable that parliament intended to provide a mechanism for the disposal [selling] of inalienable common good, but not for the less extreme step of retaining it but changing its use.”