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Council to press ahead with school plan

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Published Date: 01 December 2008
EDINBURGH city council is to continue with controversial plans to build a school on common good land after legal advice backed the move.
Some residents had threatened to take the authority to court to protect the land which is owned by city residents but maintained by the council.

However, the site was chosen after public consultation on where the new Portobello High School school should be built.

The aim is to replace the current crumbling Duddingston Road building.

The council believes the legal advice could have ramifications for local authorities across Scotland.





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  • Last Updated: 30 November 2008 9:58 PM
  • Source: The Scotsman
  • Location: Edinburgh
 
1

seanie,

01/12/2008 09:11:40
Common Good assets are not 'owned' by the residents in any legal sense. They are owned by the Council.
2

Ghost,

01/12/2008 11:36:53
The fundamental point here is that common good assets are NOT owned by the council. The common good fund is NOT part of the local authority account. It is administered by the local authority, but common good assets do not appear on the local authority balance sheet, and it has no ownership of them.

The Common Good Fund is to be maintained by the authority for the residents of the city. Education is a statutory function under the Education Act (1980), and cannot be delivered using assets from the common good fund. This is why Edinburgh Council cannot use Portobello Park, without applying to the Court of Session. Local residents will oppose this costly legal action. It will be a long drawn out affair, and the council may eventually fail. Then they will have to be more realistic about what to do to improve the facilties for Portobello High.
3

seanie,

01/12/2008 11:47:41
Utter nonsense.

The issue of ownership is absolutely clear cut. Common Good assets are legally owned by Local Authorities. They must be accounted for separately but that's not because they don't own them.

Local Authorities also have considerable latitude in how they can administer Common Good assets, and there is nothing to prevent such funds or assets being used for statutory purposes. There are particular rules concerning the disposal of such assets but no disposal is being proposed in this instance.
4

seanie,

01/12/2008 11:56:51
http://www.scottish.parliament.uk/business/committees/lg/papers-06/lgp06-29.pdf

"1.3 It is an important point to recognise that common good funds are owned outright by local authorities. However, in common with other funds owned by local authorities, they are subject to special rules. These rules principally relate to how common good property is administered and how and when it can be disposed of."

"2.2 Other than the requirement to have regard to the interests of the former burgh’s inhabitants, there is no specific legal requirement as to how the common good fund should be spent. There is nothing legally to stop the local authority from using the fund for one of its statutory purposes.
5

seanie,

01/12/2008 11:58:37
And who could forget the North Lanarkshire case?

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

A judgement form an actual court!

I wonder what they say about building schools on Common Good land.

"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."

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

Fascinating eh?

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 court was concerned.
6

seanie,

01/12/2008 13:41:24
Looks like Senior Counsel has advised accordingly; the Council don't need permission from the courts to proceed.
7

Stevie Mac,

Edinburgh 01/12/2008 15:33:30
As far a Common Good is concerned the "battle" is over, indeed the battle never even commenced. PPAG totally manufactured CG as an issue in an attempt to delay a new PHS. They have been proved wrong and found wanting.

Ghost informs us "The Common Good Fund is to be maintained by the authority for the residents of the city. Education is a statutory function under the Education Act (1980), and cannot be delivered using assets from the common good fund. This is why Edinburgh Council cannot use Portobello Park, without applying to the Court of Session" -

That's a strong statement and as Seanie says it is utter nonsense. Can Ghost can demonstrate where it is written down, I thnk not.

Quite honestly, over the last couple of weeks Ghost has clearly demonstrated that it can't even properly interpret the councils options for the replacement of St John's Primary. What chance has it got of grasping a fairly complex legal issue? Not a lot.

8

Porty Pirate,

The Beach 01/12/2008 15:55:19
Mr Ghost - Your ability to continually ignore the evidence presented is astounding - even by your standards.

Here is an extract from the official press release:

"The advice of Senior Counsel in their Joint Opinion is that the Council do not require the prior consent or authorisation of the Court under s.75(2) of the Local Government (Scotland) Act 1973 to the proposed appropriation of part of the park at Portobello for the construction of a new Portobello High School".

So now you argue with two sets of Counsel. Amazing. I hope you have a spare £60k to waste contesting this.

 

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