Good afternoon, everyone. The first item of business is a debate on motion S4M-08530, in the name of Siobhan McMahon, on behalf of the City of Edinburgh Council (Portobello Park) Bill Committee, on the City of Edinburgh Council (Portobello Park) Bill at preliminary stage.
As the convener of the City of Edinburgh Council (Portobello Park) Bill Committee, I am pleased to open the preliminary stage debate. I thank my committee colleagues for their support and assistance throughout the process. My colleague James Dornan is not with us this afternoon, but my thoughts are with him.
This is my first time as the convener of a parliamentary committee. I welcome the challenge, but I could not have met it without my colleagues’ support. I thank the committee clerks and the Parliament’s legal team for the advice that they have given me and other committee members and for the time that they have given to all aspects of the bill. I thank all who have assisted the committee in scrutinising the bill at preliminary stage, including the experts on common good law who provided evidence to the committee and the objectors, who have engaged in the process and assisted the committee in understanding the issues and concerns that the proposals raise.
The bill is short, extending to only five sections, but it is nonetheless controversial. The action that it would facilitate—the building of a new high school in Portobello park—is not without its critics. The bill presents complex legal issues, which the committee was keen to understand in depth before considering the merits of and arguments against the proposal.
The issue of a much-needed new high school for Portobello has a long history. The consensus appears to be that a new school is needed. Locating the school in Portobello park seems to be the key issue.
Portobello park forms part of an area of land that was purchased by—not gifted to, as the committee’s report, which has now been corrected, originally inaccurately stated—the City of Edinburgh Council’s predecessor body from Sir James Miller in 1898. The purchase provided that the land was to
“be used exclusively as a public park and recreation ground”
for the community’s benefit and contained a condition against building on the park, other than building consistent with the land’s use as a public park or recreation ground.
The park’s selection as the site for the school dates back to 2006, when the council agreed that it was the preferred location. Planning permission was granted in February 2011 and the intention was to appropriate the park for the new school. However, that was challenged in a judicial review petition in the Court of Session by the Portobello park action group. In September 2012, the inner house upheld the petitioners’ appeal, on the basis that existing law on the disposal of common good land does not extend to the appropriation of inalienable common good land. That meant that the council could not move the site from its recreation function to its education function and therefore could not build the school on the park.
The bill was introduced in April last year by the promoter—the City of Edinburgh Council. Its purpose is to remove the legal obstacle that the inner house identified in order to allow the council to use Portobello park as the site of the new Portobello high school. The bill would change the legal status of Portobello park from inalienable to alienable common good land for the purpose of part VI of the Local Government (Scotland) Act 1973. That would allow the council to appropriate the land for its education function and build the school on the park. The bill does not authorise the building of the school, which is subject to the local authority planning process.
Following its introduction, the bill was the subject of a six-week objection period, during which 66 admissible objections were received. At preliminary stage, the committee had to reject any objection to the bill that did not, in the committee’s opinion, demonstrate that the objector’s interests would be clearly adversely affected. In that context, and after considering each objection carefully, we agreed that seven of the objections did not pass the test and consequently rejected them. If the Parliament agrees to the bill’s general principles and that the bill should proceed as a private bill, the committee will look at the remaining 59 objections in more detail at consideration stage.
In considering the bill’s general principles, the committee was sensitive to a number of recurring themes that objectors raised in relation to perceived key implications of the bill if it is enacted. In particular, the committee considered claims that the bill would set a precedent for councils to overturn the general protections that are afforded to inalienable common good land by using the mechanism of a private bill.
Although we recognised that it would be open to other councils to follow that route if they so chose, any other such bills would have to be considered in their own circumstances and on their own merits. The bill makes specific application of the law only in specific circumstances and does not in itself change the general area of the law. We were therefore satisfied that the precedent argument was not sufficient for the bill not to continue to its next stage.
We carefully considered the evidence that was provided on the key issue at the core of the bill: the apparent legal anomaly that exists in the Local Government (Scotland) Act 1973, which allows a council, with the consent of a court, to dispose of inalienable common good land to a third party, but does not allow a council to use such land for a different purpose by appropriating it for another of its functions.
One of the alternative legal approaches that the promoter considered, which some objectors highlighted as the mechanism that should be pursued, was a change in the general law to address that apparent legal anomaly. It was argued that a public bill would not only address the legal anomaly that was highlighted in this case, but have general application throughout Scotland.
To ascertain whether there were any plans for a public bill or other Scottish Government action in relation to the matter, the committee contacted the Scottish Government. We were advised by the Minister for Local Government and Planning that the Government had not reached any decision on the matter, although it was consulting on its forthcoming community empowerment bill, which is intended to include provisions on the management and disposal of common good land. The committee noted that any potential Scottish Government legislation in connection with the issue was likely to be some time off.
Although the committee is aware that this is not part of its specific role, we agreed that we would draw the attention of the Parliament and the Scottish Government to the suggestion that a change in the general law might be appropriate, regardless of the outcome of consideration of the bill.
The committee also examined the other alternative legal approaches that the promoter had considered as options to achieve the same end. Those included appealing the inner house’s decision to the Supreme Court; reviewing the status of the park to establish whether it might be categorised as alienable common good land or not part of the common good; disposing of the park under section 75(2) of the 1973 act; applying to the court seeking authority to appropriate the park under section 75(2) of the 1973 act; and petitioning the Court of Session under the nobile officium, which, in essence, provides a legal remedy where one is otherwise unavailable.
The promoter argued that none of the other alternatives would be as quick or as cost effective as promoting a private bill. The committee is satisfied that the promoter was justified in pursuing the private bill process as opposed to other possible legal options at this juncture.
There was some dispute between the promoter and some objectors on what effect the bill would have on the longer-term status of the park. The promoter argued that its inalienable status would be removed only for as long as it was appropriated for an education purpose, but others argued otherwise in evidence. The committee is persuaded that, should the bill continue to consideration stage, an amendment should be lodged that would provide safeguards for any future use to protect the park’s inalienable common good status should it no longer be used for an educational purpose.
As well as considering the general principles of the bill, private bill committees must take a view on whether the bill should proceed as a private bill. To that end, the committee had to satisfy itself that the bill conformed with standing order requirements in relation to the definition of a private bill and that the accompanying documents were adequate to allow proper scrutiny of the bill.
On the first point, the committee was satisfied that the bill complies with the standing order definition of a private bill. We were also satisfied that the bill confers on the promoter powers in excess of the general law—in this case, the 1973 act.
On the second point, the committee was required to consider each of the accompanying documents—the promoter’s memorandum, the explanatory notes and the promoter’s statement, which were lodged by the promoter—and take a view on whether those documents were fit for purpose. We considered, for example, whether the explanatory notes summarised what each provision of the bill does and provided other information to explain the effect of the bill, and whether the promoter’s statement detailed the arrangements that were made by the promoter regarding matters such as notification, advertising and distribution of the bill and accompanying documents.
The committee was of the view that, overall, the accompanying documents were adequate to allow for scrutiny of the bill.
Overall, we have carefully considered the arguments for and against the bill and, on balance, we are persuaded by the general principles of the bill. If the Parliament agrees, we will examine the objections in greater detail at consideration stage.
I move,
That the Parliament agrees to the general principles of the City of Edinburgh Council (Portobello Park) Bill and that the bill should proceed as a private bill.
14:39
I welcome Cameron Buchanan to his place as Opposition spokesperson for the Conservatives on the local government and planning portfolio. This is my first opportunity to do so since he became an MSP.
We are very aware of the importance of the issue to the Portobello community. The bill represents a critical step in the process of allowing the City of Edinburgh Council to consider all the possible options and secure the best possible site and outcome for the provision of the new school.
I formally record my thanks to the committee and its convener and to all the various contributors for their work, which has allowed us to reach this point. Having heard and considered all the evidence appropriate to the debate, it is fair to say that common good land has a long and incredibly complex history, and its treatment is complex, too, so I very much commend the efforts of the committee and the expert witnesses in seeking to bring the matter to a clear and satisfactory resolution.
The City of Edinburgh Council has long identified the need to replace the existing Portobello high school building. As long ago as 2006, the council announced its intention to build a new school on Portobello park, which is its preferred site. I will not go over the history and legal challenges that have resulted in the need for a private bill but, needless to say, I am pleased that we are now approaching the point at which it will be possible for the council to deliver this key project from a position that ensures the fullest possible consideration with regard to delivering the best outcome for the Portobello community as a whole.
The bill has no direct impact on Scottish Government policy and the Government does not have a view on the merits of the proposed site—that is entirely for the council to decide. However, we recognise that there is widespread agreement that the existing Portobello high school is no longer fit for purpose and we believe that the council should be able to achieve what it has identified as its best option. The bill will enable that to happen and so will help the council to meet its responsibility to provide a positive learning environment for young people in the east of Edinburgh.
Whether through local delivery options or broader policy objectives, both central and local government partners have a responsibility to ensure that Scotland’s young people—our country’s future—are given the best possible opportunity to fulfil and maximise their potential. The bill demonstrates how effective partnership between local government, the Parliament and the Government can facilitate healthy debate as well as solutions to help meet local needs.
More broadly, it is worth highlighting that the Government is content that the bill will have no direct consequences for common good assets elsewhere in Scotland. The bill is deliberately narrow in its focus and will deliver a local outcome to a local challenge. The Government fully recognises the special place that the common good plays in the life of the nation and of many local communities, and the bill in no way erodes that.
I hope that members will forgive me for straying slightly from the specifics of the bill for just a moment, but the point is important. In recognition of the special place that common good holds, our draft community empowerment (Scotland) bill, on which we are consulting, includes provisions that will increase transparency about the existence, disposal and use of common good assets. That bill will also increase community involvement in decisions that are taken about such assets. In the context of today’s debate, I am sure that members will agree that that represents a welcome development that evidences the Government’s commitment not just to listen to local communities but to enable them to act in delivering local solutions to meet local needs. That reflects the objective of the bill that we are considering today in respect of Portobello high school.
Linked to that, I have noted the committee’s comments with regard to the consultation process that took place on the proposals for the new high school. I respectfully suggest that there are almost certainly lessons learned that can be carried over into future community empowerment-related activity. That is something on which I will reflect further.
To return to the bill, there is clearly no debate over the need for the City of Edinburgh Council to proceed urgently with the building of a new Portobello high school, having first flagged its intention to do so in 2006. The committee has received thorough and comprehensive advice and representations from the community, its representatives and expert witnesses, both for and against the council’s favoured option. The committee has also given cognisance to the role of the City of Edinburgh Council in respect of its function as the local planning authority, and to the role of the Parliament in relation to legislative competence. The approach that is proposed also broadly reflects current Government thinking in respect of community empowerment. Therefore, the process to bring us to this stage has been robust. However, by definition, there are always two sides to every debate, and I look forward to members’ speeches this afternoon.
14:44
I thank the committee for its service to the issue. I live in the Edinburgh Eastern constituency, not far from Portobello high school, and members will know that the private bill process explicitly excludes members who represent the area that is affected by a bill from the bill committee process. When I discovered that, I was anxious that I would not be able to convey to the committee just how important the issue is to the community. However, the committee has done the Parliament proud, producing a comprehensive and fair report, which criticises the process in places but ultimately recommends that the Parliament accept the need for the bill. The committee has served with the utmost diligence and professionalism and deserves credit for that.
I will open and close the debate for Labour. In my opening speech I will describe the urgent need for a new school, and in closing I will seek to address, with the facts, the arguments against having a school on the park.
I welcome all the people in the gallery who have found the time to attend the debate. Their number is big, but they represent a tiny fraction of the number of people who have been actively engaged in the issue for years. In particular, I welcome my colleague Councillor Maureen Child and pay tribute to her for all the work that she has done for years in considering the issues, working with the council and shoulder to shoulder with the community, which has been waiting for a new school for far too long.
I also pay tribute to Peigi Macarthur and her team for their outstanding leadership of a wonderful school at the heart of a community that is pounding with life, culture, sport and opportunity. I worry that in the decade-long battle for a new school the considerable merits and achievements of the current school and its pupils have been almost overlooked.
I want to highlight the work of Portobello for a new school and the parent council. PFANS is a group of people who are dedicated to securing a new school. In progressing the case for the school, the group has enhanced the community itself, building a forum for regular debate about not just the school but wider issues. Its Facebook page has nearly 2,600 members—a sizeable chunk of the community is online and engaged with issues to do with the school’s future and the community, demonstrating what can be achieved when people come together to work for the common good of a community about which they care so passionately.
Why do those people care so much? It is 2,596 days since the plans to build a new Portobello high school were approved by the council. Children in the feeder primary schools were asked to give the designers and architects their vision for a new school when they were in primary 2. Those very pupils are now in their fourth year at high school.
Jessie, who was in primary 2 at Towerbank primary school when the new high school was first promised, will likely sit the new national qualifications and her highers in the current building. I asked Jessie to show me round the school, which she did brilliantly. For her, the most pressing issue is the state of the stairwells. There are 1,450 pupils in a column-stack of a school, and when the bell goes at the end of class they all have to fire into the tiny stairwells to move from one floor to another, often getting crushed under incredible pressure. The problem is so big that it drives the timetabling of classes. The timetabling ensures that pupils do not have to go from the top floor to the bottom for their next class, whatever the subject, because of the logistics of getting kids round the school. That is ridiculous.
There are temporary buildings, which have been there for years, where the kids are taught maths and technology. The assembly hall roof blew off in strong winds and the school had to be closed for a day, not because that had made the school dangerous but because it simply would not be possible to get kids from one part of the school to the other, because space is so cramped. The school had to close—that is ridiculous, frankly.
The school has special dispensation not to deliver two hours of physical education each week, because it does not have the on-site sports facilities that would enable it to do so. The school must spend £70 a lesson to get the kids to the Jack Kane sports centre—that £70 comes out of the school’s budget—and when the kids get to the centre they get only 15 minutes of sport. That cannot go on. A new school on the park will provide groundbreaking sports facilities, which will enable the school to continue to deliver sport. The school has fantastic sporting merit; it is the heart of basketball in Scotland and contributes considerably to football, rugby and other activities.
The issues that I have set out are familiar to the people in the gallery and the people who are involved, day in and day out, but I am conscious that members of the Parliament might not be aware of the strength of feeling in the community because the issue has been going on for too long.
You should be drawing to a close, please.
In my closing speech I will talk about the reasons why the school must be built on the park and counter some of the arguments against that approach. Members should be in no doubt: the people of Portobello want the school and they want it on Portobello park.
14:49
The City of Edinburgh Council (Portobello Park) Bill will change the law in order to allow the City of Edinburgh Council to appropriate Portobello park to build a school. The Parliament is being asked to approve that straightforward principle today—nothing more, nothing less. It is important that we do not lose sight of the fact that the public realise what the bill is really about. I do not think that it is about the need for a new school, which we all agree on.
A number of us have received correspondence from residents who are concerned about the bill. The question of the competency of the private bill was raised: specifically, correspondence cited the guidance on private bills, which requires that such bills should not be considered if a statutory remedy is not necessary or if a change to the general public law would be more appropriate.
In the context of the former point, some people have raised the alternative sites that are open to the city council for a new school. However, I do not think that it is appropriate for the Parliament to visit that matter in depth, particularly as the council voted unanimously to pursue the Portobello park option via the private bill route. We must accept that Portobello park is the best option for the school.
The second objection to the bill’s competency was made in relation to whether other legal solutions were more appropriate. From the evidence that was presented to the committee, I note that there is broad agreement that such options are non-starters and that a statutory solution such as the bill is the only way forward.
However, within that broad agreement, there was a contention that a change to the law on appropriation of common good land should be made through a public bill. I share the committee’s view that, given the particular set of circumstances surrounding the new Portobello high school, it is both necessary and acceptable to pursue the private bill option.
Beyond those technical objections, a key concern has been raised by a number of people—namely, the wider implications of the bill as regards common good land. We need to take those concerns seriously, and it is in the best interests of all concerned—including those of us who support the bill—that we demonstrate that no such danger exists, due to the specific area of law that the bill addresses. We must be clear about precisely which area of law the bill relates to. It is not about the broad issue of safeguards for common good land, so we should leave that aside. The bill is about the land at Portobello park and that land alone.
The bill concerns the principle of appropriation of inalienable common good land. Indeed, more specifically still, the bill is about the appropriation of such land for the city council’s education authority functions. There are a number of reasons why I do not expect more local authorities to introduce other private bills on the back of this one, although that is what everybody is afraid of. Of course, one key point is that private bills are not commonplace or straightforward in any case, especially when we consider the constraints on parliamentary time. Beyond that point, the appropriation of inalienable common good land for the purposes of education is such a narrow issue that it is not likely to affect many other cases for the time being.
The question whether such cases may be more common in the future, given school building programmes, has been raised in evidence. In that context, I agree with the committee’s conclusion that the bill is so narrowly focused on the issue of a school on Portobello park that it is difficult to see how it could lead to a broader presumption in favour of appropriation. Indeed, I think that the broader effect of the bill—if there is any at all—will be that the issues around appropriation will be properly debated and discussed and a mechanism for adjudicating similar disputes will be adopted for the future, which is no bad thing.
In effect, we are discussing a legal anomaly. Local authorities cannot appropriate inalienable common good land but they can dispose of it with court permission. It became an issue following local government reorganisation in 1996. Prior to that, district councils could dispose of inalienable common good land to regional councils, as they were the education authorities. Indeed, such an example was cited in Wishaw, within the old Strathclyde Regional Council.
However, following local authority reorganisation, that was no longer an option. Therefore, we have arrived at a position where a local authority can dispose of, sell off and develop inalienable common good land with court permission, but it cannot use the land to provide much-needed and long-overdue school premises, as it has no power, and there is no legal process of adjudication, should it wish to do so. It seems, on a point of principle, unfair to allow such an anomaly to stand in the way of a new school that we know is much needed.
As we have heard, and as the committee found, the private bill route is the best option for resolving the very specific set of circumstances in Portobello. The bill gives the City of Edinburgh Council a mechanism to appropriate Portobello park, as the case highlights that there is no existing means for it legally to do so. Because of the obvious need for a school and because we can satisfy ourselves that, realistically, there is little danger of setting a wider precedent due to the focus on Portobello park and the very particular circumstances surrounding it, we have no good reason to oppose the bill. Indeed, given the desperate need for a new school, we support it.
14:54
As a serial member of private bill committees, it is appropriate that I thank the committee members and the convener in particular, the committee clerks and the legal team that provided us with advice. The City of Edinburgh Council (Portobello Park) Bill has been perhaps the most complicated private bill that I have considered so far, not only in a legal sense but because the committee has, in its quasi-judicial role, had to walk a very fine line in responding to the deluge of emails that it has received from the public. We have found it very helpful to have our convener supporting and leading us in our work.
I will focus on three areas with regard to our committee report on the bill: the alternatives to a private bill; the precedent that may be set by such a bill; and—if I have time—the consultation process that was undertaken.
When the City of Edinburgh Council suggested to the Parliament that a private bill was the correct route to go down, it listed the alternatives that it had considered, which the committee convener went through in her opening remarks. I draw members’ attention to paragraphs 74 to 96 of the committee’s report, in which we comprehensively go through the alternatives that the council considered and the reasons that they were rejected, and conclude that a private bill was the correct route to follow. Paragraph 97 on page 18 states:
“The Committee is satisfied that the Council was justified in pursuing the private bill process and none of the other possible alternatives to achieve its objective.”
We took a lot of time and care in coming to that conclusion.
Much has been made of the notion that, if the private bill proceeds and is passed, we will be setting a precedent that other councils throughout Scotland could follow. The convener has already addressed that concern, as did Cameron Buchanan. I refer members, when they are making their decision, to paragraph 68 on page 13 of the report, which shows that to some extent that can already happen. Motherwell, Kirkcaldy, West Dunbartonshire, South Lanarkshire and North Lanarkshire authorities have all used various routes to enable them to take inalienable common good land and use it especially for educational purposes. What the City of Edinburgh Council proposes to do in the Portobello park private bill is not unique, and follows a tradition. The bill will not set a precedent, as it is not the first time that such a route has been followed.
We commented at paragraph 120 of our report—as the minister mentioned in his remarks—that we thought that the City of Edinburgh Council had gone through a fairly comprehensive consultation process, but that some mistakes and areas in which it could have been better had been identified. We noted, however, that some of the problems that had occurred at the beginning of the process had since been rectified.
A lot of the emails that we received highlighted that the City of Edinburgh Council went out and consulted young people and pupils. I do not see that as a negative—it is entirely positive. There is no reason why young people and pupils should not or cannot be consulted on their future. I commend the report to Parliament.
14:58
I declare an interest as a City of Edinburgh councillor from 2007 to 2012; a current Lothian MSP; and a board member of Fields in Trust.
The controversy over Portobello park goes back many years and has been deeply divisive for the community. During my time as a councillor, I was very critical of the way in which the council had handled the decision on whether a replacement high school should be built on the common good land that is the park. I visited the school at that time and shared with parents and young people a real desire to replace the 1960s Portobello high school, which was poorly designed in the first place and has not stood the test of time or been adequately maintained.
However, I believe that the council has been too dismissive and, at times, disrespectful of those in the community who did not want the school built on the park. Regardless of where anyone stands on this debate, it is important that they are able to state a position without fear of ridicule or demonisation, otherwise the process of moving on after a conclusion is reached becomes so much harder.
Hindsight is a great thing but it is clear that, had we all known in 2005 what we know now, a different set of options and potential paths would have been followed, and a new school would now be up and running and delivering the quality secondary education that our young people need and deserve. However, we are now in 2014. The need for a new high school has grown, not diminished. The condition of the school has worsened. I am no longer a councillor but, as an MSP, I have to take a position on this private bill, which is the council’s way of dealing with the common good status of the park that would otherwise prevent a school from being built there.
It is no longer 2005. Nine years have passed since the council first made its decision. The choices that we face now, with so much water having flowed under the bridge, are different. The school has planning permission to be built in the park and a contractor is in place to do that. Community consultation a year ago had a massive response and a fairly hefty majority in favour of building in the park. However many criticisms one can level at the community consultation, it is difficult to argue that the will of the community is other than that which emerged from the consultation.
In the unique circumstances in which we now find ourselves and having weighed up all the issues over a long period, I will support the bill today but seek strengthening of assurances and protections concerning the future of the site itself and the compensatory green space. The issue now is the conditions that are attached to the school being built at one end of the park. What assurances can be secured that new playing fields will always be accessible to the community at large? What certainty is there that, once the new St John’s school is built, the old high school site will be transformed into high-quality green and open space to be enjoyed for generations to come? The council has moved some distance on those matters, but they must now be secured for the long term. More generally, I want to be sure that, even with a school in place, the land on which the school sits remains common good land and, crucially, that the decision made by MSPs in this case does not establish a precedent for other common good land in Scotland.
I lodged an amendment to today’s motion to see whether Parliament would be prepared to take a view at this stage on some of those concerns. My amendment has not been selected for debate, but I welcome the committee’s recommendation that the bill should be amended to strengthen protection of the site’s common good status and I urge committee members to pursue the issues raised as the bill moves forward.
High-quality schooling is essential to Edinburgh’s future success, as with any city, but so is an appreciation of the need to preserve and enhance Edinburgh’s green recreational spaces. There is an opportunity here to build a positive future in both regards and I trust that, in time, the city village of Portobello will regain all the cohesion that makes it such a special part of the city.
15:02
Colleagues may be surprised that a member who represents a constituency in the south of Scotland should be taking part in a debate on a bill brought to Parliament by the City of Edinburgh Council to resolve a particular issue that prevents plans for a new school from progressing. However, I was brought up in Edinburgh and I have very pleasant memories of Portobello, particularly of the outdoor swimming pool with a wave machine, which most people here are probably too young to recall. However, that is not why I am speaking in the debate. I am interested in the issues around the common good land and the reasons why the bill was introduced. The obstacles preventing the plans for the new Portobello school from progressing have arisen because of what seems to be an anomaly in legislation that was passed over 40 years ago.
Common good funds are the assets and income of the former burghs of Scotland: portfolios of land, property and investments that by law exist for the common good of the inhabitants of the former burghs, not of the residents of the current local authorities. Title to common good assets is held by successor local authorities, so the Local Government (Scotland) Act 1973 transferred the assets that were held by the town councils to the new district councils that were formed in 1975; after that, the Local Government etc (Scotland) Act 1994 transferred them to the new unitary authorities in 1996.
Some town councils transferred the town’s common good assets in 1975 to new trusts in order to prevent them from being taken over by the new district councils, and properties were purchased or gifted to communities for specific purposes or for the benefit of a particular group of residents. Some common good assets were owned by burghs that did not have town councils prior to 1975. The situation is very complex, so knowledge of and documentation on common good properties is often very poor. For example, a number of properties in Dumfries were recently found to be common good properties, which people had not been aware of previously.
Portobello park is part of an area of land that was purchased by the council in 1898. That was two years after Portobello, which had been a burgh in its own right, was incorporated into Edinburgh by an act of Parliament, so the common good property is owned by Edinburgh rather than by Portobello. As we have heard, the land was sold on specific conditions, which has resulted in its having inalienable common good status.
The Local Government (Scotland) Act 1973 enables inalienable common good land to be disposed of with the consent of the Court of Session or a sheriff, and it enables the court to impose conditions that other land should be substituted for the land that is lost. However, as we have heard, inalienable common good land may not be appropriated—that is, used for an alternative use by the council. Although it can be sold off, it cannot be used for alternative uses by the same council. As we heard from Cameron Buchanan, that was not a problem before 1996 because education was the responsibility of the regional council, to which the land would have been disposed, but with unitary authorities the council is no longer able to do that. The bill seeks to address the anomaly that, in the case of this particular asset and this particular council, the inalienable common good land can be disposed of but not appropriated by the local authority for another purpose.
There is no doubt in my mind that the proposed school, which will be a community school, will be of benefit to the community. I am sure that that will be the case. I note that the bill does not circumvent the planning process in any way. However, there is still an issue about whether the 1973 act needs amendment, because we could have a whole load of other bills of a similar type coming along unless we look at the principle and the problem with that act. It will be interesting to see whether the proposed community empowerment (Scotland) bill contains a proposal on the matter.
Andy Wightman and James Perman undertook a review of common good land in 2005, and they recommended that we need a new common good act because the Common Good Act 1491 is still the main act that governs the use of common good land, obviously amended by all the subsequent bits of legislation. It may be that we need a consolidation bill on common good property.
Many thanks. We move to the closing speeches, and I call Derek Mackay. [Interruption.] Perhaps I have not called the right person. Forgive me, minister. I should have called Cameron Buchanan.
15:07
I will pick up on a few of the points that were made in this afternoon’s debate, which has been constructive.
Elaine Murray raised the issue whether the bill somehow circumvents the 2012 judgment of the Court of Session. I refer to the important point that the committee made, that it is for the courts to apply and interpret the law and for the Parliament to legislate to change it when it is appropriate to do so. This is one such occasion. The court judgment highlighted what many of the experts have pointed out, including Roy Martin QC, who described in his oral evidence to the committee the anomaly whereby the Local Government (Scotland) Act 1973 allows the disposal of land with the consent of the courts, but not appropriation for another use. I mentioned that in my opening speech. I do not accept the argument of those who seem to believe that, when the court finds such an anomaly, it is for the Parliament to sit back and blithely accept it. Indeed, as I argued previously, although I do not see many similar cases coming to the fore in the short term, the principle should be addressed for the sake of consistency in the future.
I note the criticism of the process, which is not entirely unfounded. As everybody has said, there were shortcomings in the council’s consultation on the bill. It is extremely regrettable that fundamental mistakes were made with the organisation of the consultation. Indeed, the previous administration of the city council has by no means covered itself in glory over the whole affair. Evidence to the committee demonstrated that as far back as 2006 there were indications that the status of the land and the council’s right to appropriate it would be challenged in the courts. Why it was not done then, we have no idea. Given the inevitability of that court challenge, the fact that the council proceeded with the planning and delivery process solely on the basis of legal advice, regardless of how expert that was, meant that the project was always going to be a hostage to fortune. The land’s status and the council’s rights in that regard should have been established definitively long before the 2012 Court of Session judgment.
There has been some discussion about the effects of this contentious issue on the Portobello community. I understand the concerns of those within the community—and indeed people further afield—about the loss of common good land, or any parkland, in our cities and towns. As Alison Johnstone said, such land is of tremendous value, and we have less and less of it, so it is important. However, I do not think that that is the issue here. The issue is not about common land but about the school. We all agree that it is an excellent school, which is well founded and has great sporting abilities and a great future. However, Portobello needs a new school.
The important thing is the commitment of the City of Edinburgh Council to designate the existing site of the Portobello high school as a new park or similar recreation facility and give it Fields in Trust status. That undertaking is critical and we must hold the council to account over it. Its importance can hardly be overstated, as it means that the overall loss of green space within Portobello will be kept to a minimum.
Many have talked about the reason that we are here today considering Portobello park as a stand-alone case and not delaying for a general review of the legislation in the area of alienable common good land. That reason is the desperate and urgent need for a new school building in Portobello and the fact that we cannot delay the project any longer. Portobello’s high school is a good school: staff and pupils work hard and should be proud of their good reputation in the city. However, we have to question how we can produce confident learners and instil pupils with that all-important sense of belief and persuade them of their worth when at the same time we continue to teach them in a building that is not fit for purpose and is in desperate need of replacing. Quite simply, we cannot dismiss the effect that learning in such an environment has on the school ethos.
It is because the pupils of Portobello deserve a new school now and because there are no good reasons to oppose the bill that I am pleased to confirm my support.
15:11
Having established the case for the school in my opening speech, I intend to address some of the counterarguments, the first of which is common good.
The status and future of common good land has been at the heart of the recent debate around the school on the park. Early in my tenure as an MSP for Lothian, I organised a public meeting specifically on the issue in Portobello town hall. Two hundred and fifty people came—so many that we had to open the upstairs part of the hall and sit people there, where there were not the tables, maps and materials that we were using to try to work our way through the arguments.
I invited Andy Wightman to speak and he came and talked to the community about the history of common good, what it meant and what it was for in an informative, engaging and enlightening way. After that, people at the public meeting sat round tables with giant maps and cut-out versions of the school and tried to work out where else in Portobello the school could go. Where could it possibly go on the map if it was not going to be in the park? The answer was that despite the 17 different options that we had, the park was the only credible option for the new school. The few alternatives that were available would have resulted in a school on a compromise site and would have taken far longer to deliver, at a much higher cost—money that would have been taken away from other schools in the City of Edinburgh Council area. The park clearly is the best site for the school. We took that very clear message from the public meeting of 250 people that night.
Common good by its very nature exists for the benefit of the community and the bill is in the best interests of the community. It is important to note that there will be no change to the status of common good land. The park itself will continue to be common good, but common good for the purposes of education. The neighbouring Portobello golf course, which was recently granted diamond jubilee park status, is protected in perpetuity for the purposes of public recreation.
I thank Fiona McLeod for highlighting the sections of the report that address the question of precedent—paragraphs 68 to 70—which are worth highlighting in detail. They say:
“While the Committee accepts that it will be open to other councils to follow the private bill route if they so choose, each case would have to be considered on its own circumstances and merits.”
Each case like this would require its own bill. Paragraph 69 says:
“The Committee is also of the view that, in narrow legal terms, this Private Bill by definition cannot set a precedent as it only makes specific application of law in these defined circumstances and does not itself change the general area of law.”
That is so clear in the report that it should allay anybody’s concerns.
“The Committee is, therefore, content that any such precedent effect is not closely enough linked to what the Bill actually does for it to constitute a valid reason why the Bill should not proceed to the next Stage.”
As I said, it is so clear.
I thank Alison Johnstone for raising the issue of green space. I recognise that all political parties support the school on the park. However, she was right to highlight the issue of green space. There are 74 hectares of green space in the Portobello area. We will lose 0.4 hectares when we build the school. PFANS put that fact in its briefing paper for today’s debate.
The new school will provide two full-sized pitches for the community, so that the Portobello park area will be able to be used as a community facility in a way that it is not currently.
Anyone who drives out to the A1 or on to the bypass through the site will see that the park is simply not used, except by the occasional dog walker. The idea that this facility is used regularly for sport just does not stack up.
We need to recognise that in many ways this is not just about Portobello high school. All the pupils of St John’s primary school, too, want a new school and our decision today will also impact on their future. What greater common good is there than the education of our children? The arguments for the bill stack up and I am pleased to add my name in support of it.
15:15
Again, I offer the Government’s position, which, as is normal with private bills, is to remain neutral. However, I can say that we have certainly explored a constructive approach to the bill this afternoon. I think that the committee convener, Siobhan McMahon, helpfully and comprehensively covered the committee’s views and some of the detail, which made it clear that further work needs to be done as the bill progresses to take account of many of the expert views that have been expressed.
There is, as Dr Elaine Murray so eloquently pointed out, a wider debate to be had about common good assets. I could be accused of being an anorak about common good funds, having been involved with them since the age of 16—[Interruption.] I hear Christine Grahame saying that she is the biggest anorak in the Parliament—
I did not!
—and she might have a point. However, although there is a wider parliamentary debate to be had about common good assets, that is for another day. This afternoon, we are discussing very narrow and specific interests relating to Portobello high school and the bill before us. We look forward to the on-going consultation and engagement on the community empowerment (Scotland) bill, which will provide an opportunity for some of these issues to be aired.
After all, members are right. Because of its very narrow focus, which was accurately highlighted by Cameron Buchanan, this bill is without precedent. Fiona McLeod was also right to highlight the issue of precedence and returned to the issue of consultation by exploring how local authorities make choices, engage with people and take forward that particular programme. Nevertheless, we believe that the process is robust.
This has been a journey. People might well have changed their position on the matter over time as circumstances have changed or as a greater understanding of the available opportunities and options has been reached. Alison Johnstone helpfully made the case about circumstances moving on with regard to the condition of the building itself; indeed, that is the issue on which this debate has been particularly consensual. No one disagrees that a new school is required. Different sections of the community might debate where the new school should be sited, but this bill facilitates the option of proceeding with the council’s preferred choice.
For all those reasons and given our understanding of the complexities of common good and other factors, Government will continue to be constructive and take forward consideration of such matters. Members will vote as they please at decision time but, although we recognise all the points that have been made in this afternoon’s debate, we will continue to remain neutral.
15:18
First of all, I extend my sympathies to the deputy convener of the committee and will, in his absence, close the debate on the committee’s behalf.
I, too, thank the committee clerks and our legal team for their support and the convener and I thank my fellow committee members for the conscientious way in which they carried out their work. I repeat the committee’s thanks to all those who made representations to us. In their dealings with the committee, objectors and supporters have been courteous and reasonable, and all parties have presented their arguments in a coherent way. Committee members have certainly had no shortage of reading material, but I assure everyone who submitted evidence or objections that we read it all and reflected carefully and at length on the points that were made.
I will start with some brief comments about common good land, which is an area of law that can give rise to complexities and uncertainty. The evidence that we received from witnesses who have experience in the area suggested that it can often be difficult to establish whether common good land is alienable or inalienable, because that might involve consideration of factors including how a burgh came into possession of the land and the use to which it has been put.
Interestingly, one commentator noted that prior to 1996, the park was the responsibility of the City of Edinburgh District Council as a recreational asset, while education was a function of Lothian Regional Council. As Cameron Buchanan explained, had it been proposed then that the land be used for educational purposes, that would have involved a transfer from the district council to the regional council, following an application to the court for authorisation. That would have been a disposal under the Local Government (Scotland) Act 1973. With the introduction of unitary authorities, such a transfer would have been an appropriation by education from recreation—rather than a disposal—which is not possible under the 1973 act. The bill seeks to remove the legal obstacle to appropriation, which currently prevents the building of the new Portobello high school on Portobello park. It is clear that there is a legal obstacle at the moment, and it is also clear that there is a pressing need for a new school. Kezia Dugdale spoke passionately about that.
The bill is narrow in its remit, as a private bill should be. It seeks only to allow the appropriation of a specific clearly defined piece of land by another department of the same authority, and only for the purposes of education.
From the many emails that we have received this week, I know that many people are not happy with the committee's preliminary conclusions and, indeed, challenge our right to have reached those conclusions. Nevertheless, the fact is that the committee has, after due consideration, concluded that the bill conforms to the definition of a private bill, so we recommend to Parliament that it proceed to the next stage.
I will now return to some of the issues that were raised in the committee's consideration of evidence. The committee is keenly aware of the benefits and value in urban areas of open space such as Portobello park. With that in mind, we sought to clarify what measures the council proposed to compensate for the loss of that space. We appreciated that such measures were not in themselves part of the bill, but we wished to clarify what the status of any such replacement space would be, particularly in view of the potential loss of the “inalienable” status of the park.
As part of the committee’s site visit to the park, we also visited the current high school site to see what area would be covered by the proposed replacement space. We also sought clarification from the promoter about what safeguards would be put in place in relation to that area. We were reassured by the promoter’s commitment to protecting the area from a future change of use by giving it Fields in Trust status which, we understand, would consist of a legal agreement with the National Playing Fields Association, which dedicates such areas to public use and recreation and similar uses in perpetuity. We have also urged the council to consider similar protection for the area of open space that would remain at the park following the proposed construction of the school.
In considering the general principles of the bill, the committee—in addition to receiving written and oral evidence from experts in common good law—heard from the promoter; from Portobello park action group, the main objector; and from the group Portobello for a new school, who are supporters of the bill.
As part of the requirements of the private bill process, promoters are obliged to set out in the promoter's memorandum details of the pre-introduction consultation that was carried out regarding the bill’s proposals. Other members have talked about that. The promoter went into some detail in the memorandum regarding the measures that it had taken to make the consultation in its view a meaningful exercise. Those included the distribution of information leaflets to individual households, a number of exhibition and roadshow events, and two public meetings.
Objectors, however, presented arguments alleging serious flaws in the process, including a shortened consultation over the Christmas holiday period; the lack of a balanced approach in relation to the content of leaflets, presentations; and displays in public areas; the survey format and the analysis of results.
Although we noted the lengths to which the promoter appeared to have gone to publicise the consultation, to engage with those who would be affected and to highlight the planned introduction of the bill, we also noted the range of claims and levels of dissatisfaction with the process that were detailed in objections. In our report, we encourage the promoter to reflect on lessons that have been learned during the process.
At this point, it is probably worth noting what the committee has not done. The committee did not feel that it was appropriate for it to take a view on issues that are properly for the council to reach a position on. For that reason, we did not explore the detail of the review or the options appraisal, or issues such as planning conditions.
As the convener and Fiona McLeod have already stated, the committee was very conscious of the concerns that have been expressed by objectors and others in relation to the possibility of the bill’s setting a precedent for local authorities to use the private bill process as a means of undermining the protection that is afforded to inalienable common good land. I therefore welcome the minister’s clear statement that the bill will have no direct consequences on common good land elsewhere.
Although the committee accepts that it will be open to other councils to follow the private bill route if they so choose, each case would have to be considered based on its own circumstances and on its own merits, as others have said. We are, therefore, satisfied that the precedent argument is not sufficient to prevent the bill from continuing to consideration stage.
Alison Johnstone talked about the need to strengthen assurances. The committee will seek amendments to the bill at the next stage to ensure that, should the park no longer be used for the proposed purpose, its inalienable status would be protected. That should reassure those who have concerns about the park’s future status. On the question of replacement open space, I refer again to the promoter’s commitment to protect the area by giving it Fields in Trust status.
I am pleased to support the motion that the general principles of the City of Edinburgh Council (Portobello Park) Bill be agreed to, and believe that the bill should proceed as a private bill.
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