Summary of Opinion issued by Lady Paton, Lord Emslie and Lord Philip. Inner House, Court of Session.

Despite planning permission having been granted, plans to construct a new building for Portobello High School, Edinburgh were challenged by the local residents on the grounds that the site selected by the  Council, namely Portobello Park, is inalienable common good land.  When the land was conveyed to the Council’s predecessors in 1898, the disposition provided: 

 “… the area or piece of ground hereby disponed shall be used exclusively as a public park and recreation ground for behoof of the community of said city and it shall not be competent to nor in the power of my said disponees or their foresaids to erect or build or give liberty to any person or persons to erect or build houses or buildings of any kind whatsoever thereon except buildings to be used as a house or houses for the park officers and gate keepers to be employed by my said disponees or for other purposes appropriate to the uses of the area or piece of ground hereby disponed as a public park or recreation ground …”

In view of the title restrictions, local residents, and in particular the Portobello Park Action Group Association challenged the Council’s stated intention to appropriate part of the park for the construction of the new school building.  The proposed appropriation would be from the Council’s Services for the Community Department to the Children and Families Department, thereby keeping the title in the Council’s name. 

In July 2011, the Association lodged a petition seeking judicial review of this decision, contending that this common good land could not be so appropriated.  On 7 March 2012, the court sustained the Council’s plea and dismissed the petition. 

The Association then appealed that decision. 

A full chronology of  events is set out at Para 9 of the full Opinion

The Inner House of the Court of Session did not agree with the original  decision of the court.  The 1898 title provided that the land should be used exclusively as a public park and recreation ground for the use of the community, and that (with the exception of houses for park staff or for other purposes) it should not be competent to nor in the power of the Council to erect or build houses or buildings of any kind whatsoever on this land. 

Notwithstanding these express restrictions, the Council’s current plans involve constructing, on a large part of the southern section of the park, a significant High School for some 1400 pupils.  The park will not remain unbuilt upon, nor will it in any realistic sense remain available for its dedicated use.  The school buildings will obstruct public access to a sizeable proportion of what has, for more than a century, been open space amenity and recreational ground. 

The daily presence of 1400 pupils and staff during term time will radically alter the character of the parkland.  The existing amenity of the area will be affected by the creation of artificial pitches and paths in place of open ground in its natural state. 

The court felt that the belated offer of access to such artificial pitches and paths, with or without occasional use of the school’s swimming pool, goes no distance towards compensating for what is plainly a major encroachment on inalienable common good land. 

The Court of Session decided that the Council has no power, under the 1973 Act or otherwise, to appropriate for use as a school any part of the inalienable common good land at Portobello Park.

The Court therefore allowed the appeal.  

Read the full Opinion here

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