Portobello Park Action Group Association For Judicial Review Of A Decision Of The City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lady Dorrian |
| Neutral Citation | [2012] CSOH 38 |
| Year | 2012 |
| Published date | 07 March 2012 |
| Date | 07 March 2012 |
| Court | Court of Session |
| Docket Number | P780/11 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 38 | |
| P780/11 | OPINION OF LADY DORRIAN in the Petition of PORTOBELLO PARK ACTION GROUP ASSOCIATION For Judicial Review of a decision of the City of Edinburgh Council communicated by letter dated 11 April 2011 that it intends to appropriate land within Portobello Park for use as a school without obtaining the Court's consent for the proposed change of use of that land within Portobello Park under the Local Government (Scotland) Act 1973 ________________ |
Petitioners: Martin, Q.C.; Drummond Miller
Respondents: S. Wolffe Q.C; Brodies
7 March 2012
Background
[1] The Petitioners are an unincorporated association the objects of which relate to the provision, maintenance or improvement of a public park. The respondents are the City of Edinburgh Council within whose area of responsibility lies Portobello Park. It is agreed that the park is inalienable common good land owned by the respondents and is open-space land. The respondents propose to appropriate part of the park for use of the site for a new school, namely the proposed new Portobello High School (PHS). The petitioners argue that it is unlawful for the respondents to appropriate any part of the park for this purpose; that in any event they cannot do so without the permission of the court; and that their decision to do so was ultra vires. They seek declarator and reduction accordingly.
The Decision to appropriate
[2] It is agreed that the park is inalienable common good land. It is also agreed that the respondents have determined that they may lawfully appropriate part of the park for use for a new school. However, when, how and in what circumstances such a determination was made is not the subject of agreement. Briefly stated, council meetings in 2006 and 2008 had referred to the park as a possible site of a new PHS. Planning permission for this was granted in February 2011. Statutory notice of the proposed appropriation was published in October 2011. Between 28th February and 11th April 2011 there was an exchange of correspondence between the petitioners or their agents and the respondents. In short, the petitioners maintained that they had advice that the Council required the authority of the court in terms of section 75 of the Local Government (Scotland) Act 1973 before appropriating any part of the park, and invited the council to agree a joint approach to the court for determination of the matter. They declined to enter into any kind of joint approach, on the basis that authority of the court was not required. This very brief summary of the background, which will require to be examined in due course in much greater detail, is given to explain the dispute between the parties as to the timing and nature of any determination to appropriate part of the park.
[3] In the petition, the petitioners assert that "the respondents" decisions up to and including the decision communicated in the letter of 11th April 2011 and the decision to publish the said notices amount to decisions that it intends to appropriate part of Portobello Park for use as the site of a new high school if and when it is lawful to do so. The petitioners have lodged the present petition in order to establish if and in what circumstances it would be lawful for the respondent to appropriate common good land at Portobello Park."
[4] The respondents aver that the decision to appropriate part of the park was taken in December 2006 and confirmed in December 2008. They aver that the letters in early 2011 do not constitute a relative "decision" susceptible to judicial review, and that the correspondence was initiated by the petitioners in an attempt to avoid the consequences of their otherwise having delayed to do present a challenge.
The Statutory Provisions
[5] The Local Government (Scotland) Act 1973 ("The 1973 Act")
73.- Appropriation of land.
(1) Subject to Part II of the Town and Country Planning (Scotland) Act 1959 and to the following provisions of this section, a local authority may appropriate for the purpose of any functions, whether statutory or otherwise, land vested in them for the purpose of any other such function.
(2) A local authority may not exercise their power of appropriation under subsection (1) above with respect to any land specified in subsection (3) below except with the consent of the Secretary of State.
(3) The land to which subsection (2) above applies is land which is held for use as allotments.
74.- Disposal of land.
(1) Subject to Part II of the Town and Country Planning (Scotland) Act 1959 and to subsection (2) below, a local authority may dispose of land held by them in any manner they wish.
75.- Disposal, etc., of land forming part of the common good.
(1) The provisions of this Part of this Act with respect to the appropriation or disposal of land belonging to a local authority shall apply in the case of land forming part of the common good of an authority with respect to which land no question arises as to the right of the authority to alienate.
(2) Where a local authority desire to dispose of land forming part of the common good with respect to which land a question arises as to the right of the authority to alienate, they may apply to the Court of Session or the sheriff to authorise them to dispose of the land, and the Court or sheriff may, if they think fit, authorise the authority to dispose of the land subject to such conditions, if any, as they may impose, and the authority shall be entitled to dispose of the land accordingly.
(3) The Court of Session or sheriff acting under subsection (2) above may impose a condition requiring that the local authority shall provide in substitution for the land proposed to be disposed of other land to be used.
[6] Town and Country Planning (Scotland) Act 1959 ("The 1959 Act")
24.- Exercise of powers of appropriation.
........
(2A) Before exercising any power of appropriation in relation to land which consists, or forms part of a common or of an open space (not being land which is held for use as allotments) an authority to whom this Part of this Act applies-
(a) shall, for at least two consecutive weeks in a newspaper circulating in their area, publish a notice of the proposed appropriation; and
(b) shall consider any objections to that appropriation which may be made to them.
History
[7] The respondents maintain that the petitioners are barred from challenging the decision on the grounds of mora, taciturnity and acquiescence. In light of that plea, and given the dispute as to the timing and circumstances of any determination to appropriate, it is necessary to set out some of the key dates in the history of the proposed development of the park.
[8] In the course of 2006, options for a site of a new PHS were under consideration. By September 2006 these had been narrowed down to three sites, including Portobello Park. A full Council meeting was held on 21 December 2006 and a deputation from the petitioners was heard. The meeting approved the selection of Portobello Park as a preferred location for a new PHS subject to inter alia "(a) confirmation, through the courts if necessary of the land being useable for this purpose;...(c) the identification of local available land for open space provision in compensation". The respondents did not accept the contention that the land constituted part of the common good until a report of January 2008, which recorded that "facts and circumstances indicate that Portobello Park is common good. In accordance with the decision of counsel, the Council will seek authority of the court at the appropriate time when funding has been identified". On the 1 December 2008 the Council issued a press release indicating that they had received advice from senior counsel that the scheme would not constitute a disposal within the meaning of section 75(2) of the Local Government (Scotland) Act 1973 and that the prior authorisation of the court was not required". At a full Council meeting on 18 December 2008 the Council approved, subject to the required additional funding being confirmed, that PHS be progressed as the first school within a group of projects. A deputation by the petitioners to that meeting stated that it was the intention of the petitioners to challenge in court the Council's opinion on their entitlement to appropriate common good land. At a further full Council meeting in March 2010 the respondents considered a motion for approval to a proposed change in the open space compensatory measures associated with the appropriation of the park, following an audit on park usage which suggested that there was limited use of the site by the local community. It was proposed that rather than providing other open space provision in compensation, alternative compensatory measures should be provided. These included provision of two all weather sports pitches for school and community use; community use of the swimming pool and changing facilities; introduction of a network of paths around the park and general landscaping of the area. Those proposals were approved. At that meeting a deputation from the petitioners indicated again that it was their intention to launch a legal challenge "at the appropriate time". Planning permission was granted in February 2011. There was then the exchange of letters to which reference has been made. This petition was raised in July 2011. Notification of proposed appropriation, as required by the 1959 Act, was made in October 2011.
Submissions on Mora
Respondents
[9] Counsel submitted that in December 2006 a decision was taken in principle to appropriate the park, "subject to confirmation, through the courts if necessary, of the land being useable for this purpose". In December 2008 the respondents decided they did not require to approach the court. The petitioners could have challenged either the decision in 2006 or the one in 2008. Reliance by the petitioners on the correspondence of early 2011 is an...
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2013-01-01
...its reclaiming motion from an earlier decision of the Outer House,22Portobello Park Action Group Association v City of Edinburgh Council [2012] CSOH 38, 2012 SLT 944. leading to a reduction of the appropriation as ultra vires. As shall be seen below, this did indeed involve an idiosyncratic......