Portobello Park Action Group Association V. The City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Emslie,Lord Philip |
| Neutral Citation | [2012] CSIH 69 |
| Court | Court of Session |
| Published date | 12 September 2012 |
| Year | 2012 |
| Date | 12 September 2012 |
| Docket Number | P780/11 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION [2012] CSIH 69 P780/11 | |
| Lady Paton Lord Emslie Lord Philip | OPINION OF THE COURT delivered by LADY PATON in the reclaiming motion by PORTOBELLO PARK ACTION GROUP ASSOCIATION Petitioners and Reclaimers: against THE CITY OF EDINBURGH COUNCIL Respondents: ________________ |
Respondents: S Wolffe QC; Brodies LLP
12 September 2012
Introduction[1] This is the opinion of the court, to which each member of the bench has contributed. Proposed new building on common good land
[2] A new building is required for Portobello High School, Edinburgh. Plans and designs have been prepared. Planning permission has been granted. Contractors are ready to carry out the work. But a difficulty has arisen as the site selected by the respondents ("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 ..."
[3] In view of the title restrictions, local residents, and in particular the Portobello Park Action Group Association ("the 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, thus keeping the title in the Council's name.
[4] In July 2011, after various meetings, protests, objections, deputations and correspondence, the Association lodged a petition seeking judicial review, contending inter alia that the inalienable common good land could not be so appropriated. On 7 March 2012, Lady Dorrian sustained the Council's plea of mora, taciturnity and acquiescence, and dismissed the petition. She expressed a view on the merits, obiter, which was unfavourable to the Association. The Association reclaimed. On 26 April 2012, the Council made a decision to appropriate the park land. The pleadings were duly amended to reflect that decision, which was also challenged by the Association.
[5] During the reclaiming motion, both parties provided full written and oral submissions.
The relevant legislation[6] The Local Government (Scotland) Act 1973
"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 ...
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 ..."
[7] Town and Country Planning (Scotland) Act 1959
"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 ..."
[8] Local Government in Scotland Act 2003
"20. - Power to advance well-being
(1) A local authority has power to do anything which it considers is likely to promote or improve the well-being of -
(a) its area and persons within that area; or
(b) either of those.
(2) The power under subsection (1) above includes power to -
(a) incur expenditure ...
(c) enter into arrangements or agreements with any person ...
(3) The power under subsection (1) above may be exercised in relation to, or for the benefit of -
(a) the whole or any part of the area of the local authority;
(b) all or some of the persons within that area.
(4) The power under subsection (1) above includes power to do anything -
(a) in relation to, or for the benefit of, any persons or place outwith the area of the local authority, or
(b) in any such place.
if the authority considers that doing so is likely to achieve the purpose set out in that subsection...
21. - Guidance on exercise of power under section 20
(1) Before exercising the power under section 20 above, a local authority shall have regard to any guidance provided by the Scottish Ministers about the exercise of the power ...
22. - Limits on power under section 20
(1) The power under section 20 above does not enable a local authority to do anything which it is, by virtue of a limiting provision, unable to do.
(2) In subsection (1) above, a 'limiting provision' is one which -
(a) prohibits or prevents the local authority from doing anything or limits its powers in that respect; and
(b) is expressed in an enactment (whenever passed or made).
(3) The absence from any enactment of provision conferring any power does not of itself make that enactment a limiting provision ..."
Chronology of events[9] As the Association criticise the Lord Ordinary's decision to sustain the Council's plea of mora, taciturnity and acquiescence, it is necessary to set out a chronology of events (provided in greater detail in item 4 "Timeline" at pp 17 et seq of the Appendix; and also in the Council's written submissions).
January 2006: The Council announced their intention to build the new school on Portobello Park.
April 2006: The Council were advised at a public meeting that the park was common good land. Their response was that there was no legal impediment to building the school on the park.
September 2006: The Council refused a Freedom of Information request for their legal opinion relating to the legality of building the school on the park.
October 2006: The Council carried out the statutory consultation procedure. The Association provided the Council with their legal opinion stating that the park was common good land.
21 December 2006: The Council decided that the park was their preferred site, and that, in principle, they should appropriate part of the park for the school provided that legal issues were resolved and replacement open space found. The Association's further Freedom of Information request for the Council's legal opinion was refused.
March 2007: The Association appealed to the Information Commissioner.
February 2008: The Council gave the Association their legal opinion, and maintained that the title conditions were no longer enforceable.
November 2008: The Council issued a press release stating that they had a legal opinion which indicated that they did not require to seek the court's permission to build on the park.
18 December 2008: At a meeting of the Council, it was decided to give the new Portobello School priority over other new schools subject to appropriate funding being confirmed in the following year. A deputation sent by the Association (i) advised the Council that the Association would go to court on the question of the land being common good land; and (ii) made a Freedom of Information request for the legal opinion referred to in the November 2008 press release (which request was refused).
February 2009: The Association requested a review of that refusal.
March 2009: The Council refused to provide their legal opinion.
July 2009: The Information Commissioner intervened.
27 August 2009: The Association received a copy of the Council's legal opinion.
January 2010: Senior counsel for the Association gave an opinion which did not accord with that of the Council.
11 March 2010: A revised approach to compensation for local residents was approved at a Council meeting, with the provision, or otherwise, of alternative open space being deferred for consideration at a future date. Potential budgetary difficulties were also identified A deputation sent by the Association confirmed their intention to go to court. That intention was repeated in a letter to the Council's Chief Executive in September 2010.
Summer 2010: Consultation was carried out on the Council's proposed planning application.
August -September 2010: The Association instructed solicitors to act on their...
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