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Lawyers clear way to build on park

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Published Date: 02 December 2008
EDUCATION leaders have finally received confirmation that a new Portobello High School can legally be built on Portobello Park.
The site of the new school has had a question mark over it as it was unclear whether a school could legally be built on Common Good land.

However, the city council has now received legal advice which will allow plans for a new school to progress a
nd Portobello can now be considered on an equal basis as the other four schools awaiting modernisation under the "wave three" programme.

Councillor Marilyne MacLaren, the city's education leader, said: "I am extremely pleased to receive this advice.

"The advice we have been given provides an appropriate way forward and I believe it clarifies the extent of local authority power over the use of Common Good land."

A progress report on how the council plans to implement the wave three programme will go before councillors at a meeting on December 18.

Willie Wilson, a member of Portobello For A New School, welcomed the news.

He said: "We now urge the council to do the right thing at their meeting in December and prioritise the money they have already set aside to replace Portobello High School.

"The dedicated teachers and 1400 children of Portobello High School deserve to work and study in a building that is fit for the 21st century."





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  • Last Updated: 02 December 2008 11:05 AM
  • Source: Edinburgh Evening News
  • Location: Edinburgh
 
1

,

02/12/2008 12:04:30
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2

Del Maleo,

Edinburgh 02/12/2008 12:32:40
About time this was sorted out once and for all. Funny, I'm sure I remember a Willie Wilson that used to skive off at Portobello School. Might be someone else though!
3

seanie,

02/12/2008 12:58:23
Assuming funding is forthcoming at some point, that only leaves Planning as a stumbling block. Obviously a lot depends on the detail of what's ultimately proposed, but the Planning Department have indicated that they're not aware of any insurmountable problems at this stage.
4

seanie,

02/12/2008 13:01:43
Good news for St John's as well. This should improve the deliverability of all three options considered for them.
5

Louis Catorze,

02/12/2008 13:16:31
"I believe it clarifies the extent of local authority power over the use of Common Good land.""

Yes it does. It makes it quite clear that, like 'listed buildings' and 'green belts', 'common good land' is a misnomer.
6

seanie,

02/12/2008 13:22:18
It will still remain Common Good land. It's just that part of it will be occupied by a school, which itself is of benefit to the community.

This doesn't represent a new precedent. It just confirms the position of earlier case law.
7

Top Floor,

02/12/2008 13:38:50

I could be wrong, but did local LibDem Cooncillor and colleague of Marilyn MacLaren's, Stephen Hawkins not stand for election on a pledge that he would oppose the building of the new school at the park ?

How will they square that circle ?
8

Skinnybob,

02/12/2008 13:42:43
and how much is the land that Portobello HS and St Johns PS occupy worth in the current economic climate?

not a whole lot. so the taxpayer will no doubt have a large tab to pick up simply because of the delays caused by the NIMBYS in Portobello.

Lets hope they get lumbered with the new road to rail rubbish transfer facility as well!!
9

seanie,

02/12/2008 13:46:28
Any sale of land towards costs would be years down the line anyway. And even as things stand PHS might not progress right away. It depends on the results of the prioritisation.
10

Stevie Mac,

Edinburgh 02/12/2008 14:32:35
Top Floor- think you are wrong about Stephen Hawkins, Whilst he is known to be against a school on the park he did not make any pledges in his manifesto. If I recall correctly he did mention the school as an issue but that's all.
11

Ghengis McCann,

Edinburgh 02/12/2008 16:02:10
#6 and #9 - Lib Dems looking both ways at once? Shurely not.

Hardly a man bites dog story - members of the Beige Party make a political career out of being all things to all voters. Forgotten how they campaigned locally against the Edinburgh Congestion Charge (because there was middle class votes in it) despite the fact that their national policy is in favour of congestion charging?

Lib Dems - the pick 'n' mix Party. No political principle or manifesto promise not negotiable for the price of a few votes more. Hypocrisy 'r' us.
12

Storky,

edinburgh 02/12/2008 16:02:15
Good to see that the legal bods regard Education as being 'common good'.

Also, I understood that originally the whole council backed the school in the park. In fact everyone backs the school in the park apart from the few NIMBY's on Park Avenue and of course their supporters in South America.
13

,

02/12/2008 16:13:02
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14

Top Floor,

02/12/2008 17:07:23
#9 Stevie,

Fair enough, you're probably right. I'm not sad enought to keep election leaflets and then go reading through them after when I should.
15

,

02/12/2008 18:34:26
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16

Park Supporter,

Portobello 03/12/2008 13:44:17
The leagal opinion offered to the council suite them surprise!! surprise!!
There are still many stages to go before a school can be built on the Park.
Park suporters throught the world should be aware that the Park will still be safe until the council overcome all the risk that they have identified and some other they haven't.
Remember that Portobello High rebuild on site under PPP2 bid failed while the council were considering options for Portobello Park.

Are the council sugest that the legal opinion they have recieved will make it easier for other councils to take Common Good Land for other purpose.

If you care about Portobello Park or your local common Good, them take action now.
17

seanie,

03/12/2008 15:37:20
The legal opinion is in line with recent court cases where judges decided that permission from the courts was not needed before building schools on Common Good land.

You can read one such judgement here;

http://www.scotcourts.gov.uk/opinions/2006CSOH48.html

"the petitioners wish to use the land for the construction of two schools on a shared site with shared facilities. Both areas of ground form part of the petitioners' common good."

North Lanarkshire wanted to build two schools on parks forming part of the Common Good and went to court to seek permission.

The Court said;

"...the use of land held for the purposes of the public park to construct a school and playing fields does not involve any "disposal" for the purposes of the subsection. In view of that decision, which is obviously binding on me, I consider that there is no "disposal" in the present cases. It follows that section 75(2) has no application. In these circumstances I refused the prayers of the petitions as unnecessary."

The Court held the petition was uneccessary.

Since the land would still be owned by the Council, and used to the benefit of the community, the Court decided that the Council didn't even need to seek permission. The proposal was perfectly legal as far as the courts were concerned.

The legal opinion offered to the Council merely reaffirms this.
18

seanie,

03/12/2008 15:39:57
As to remaining obstacles, apart of course from funding, the only real issue concerns Planning approval. And as I said before, the Planning Department have indicated that they're not aware of any insurmountable problems at this stage.
19

,

04/12/2008 09:55:41
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20

,

04/12/2008 11:29:56
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21

seanie,

04/12/2008 11:56:54
And in the interest of accuracy it's worth pointing out that the statement; 'Portobello High rebuild on site under PPP2 bid failed while the council were considering options for Portobello Park' is also incorrect.

Portobello dropped out of the PPP2 scheme following a prioritisation exercise due to the scope of the programme being cut back. That was decided in February 2004, long before Portobello Park became a viable option.

That only became a possibility after The Abolition of Feudal Tenure(Scotland) Act came into force in November 2004.
22

Stevie Mac,

Edinburgh 04/12/2008 12:39:51
Correct- that's when the feudal burdens stating the land had to be used for recreation and leisure purposes, flew off. - PPAg never did understand that the burdens were feudal, no more- no less.

It is fairly typical that park supporter et al should rubbish a precedential legal opinion simply because it suits the council. Thereby denigrating the democratoc process that took place. Every councillor voted for it so it is safe to say the legal opinon suits the vast majority of the city's residents.



23

Park Supporter,

Portobello 12/12/2008 20:16:17
Thanks to contributers 22 and 23 for the insight
PHS and PPP2 some of the reasons
"following a prioritisation exercise" which included a review of the assets each school could offer toward the funding.
It is clear that the Council had there eye on Portobello Park at this time but could not see a way of taking it out of the common good

"That only became a possibility after The Abolition of Feudal Tenure(Scotland) Act came into force in November 2004." hence the delay to PHS?

Are PFANS part of the old guard?
rummor has it that they were formed by the "power to be" at that time to bully the local community into giving up the Portobello Park including the golf course in exchange for a new school. Fortunately Portobello people are more astute.

 

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