This has been a pretty constructive debate. I was struck by the contributions of a number of members.
Fiona McLeod talked about her experience of previously chairing a private bill committee, although the National Trust for Scotland (Governance etc) Bill was perhaps a little less contentious than the City of Edinburgh Council (Portobello Park) Bill. Nonetheless, she has had experience of a private bill. She also carefully explained the way in which the committee had worked and how it tried to take into account all the competing interests, for example, by accepting all supplementary evidence in written form, organising an extra meeting and changing the planned hours for meetings to try to ensure that all witnesses could say everything that they wanted to say and put it on the table.
I was struck by Alison McInnes’s speech and in particular by her comment that, just because the committee did not uphold complaints, that does not mean that it did not take them into account. Objectors to the bill, in reading the consideration stage report, might feel that the committee did not consider things, because none of the complaints was upheld in its entirety. However, as members have pointed out, on a number of occasions, the committee acknowledged disadvantages and then carefully laid out why it felt that a complaint should not be upheld, because those acknowledged disadvantages were superseded by the advantages.
Alison McInnes rightly said that the council has a job to do not just in building a school but in rebuilding trust throughout the community. Most speakers have acknowledged that certain parts of the council process, although described as “adequate”, were not what they should have been and were not of the standard that people are entitled to expect. The council has to learn lessons from that.
Alison Johnstone touched on a really important issue in allowing us to focus on the conditions at Portobello high school, which appalled her. The school has thrived, although the original design was perhaps flawed and the maintenance has not been what it ought to have been. Despite that, the school has succeeded enormously, which is a real tribute to the students, teachers and parents. Given the success of the school in those conditions, imagine what it would be capable of achieving were it to have the building and facilities that it deserves and merits. That is one reason why there is wide support for the bill.
Of the emails that members have received on the issue over the past week or two, very few if any have been from those who support the bill. One email made it clear that there was a deliberate attempt among those who are in favour of the bill not to send individual emails to MSPs—there was one email on behalf of everybody who is in favour of the bill. From the consultation and the public meetings, it is pretty clear to me that there is a substantial majority in favour of the bill and that it has support more widely.
The committee said that it attempted to achieve
“a fair balance ... between the competing interests of those adversely affected by the scheme and the benefits to the wider community.”
The committee considered the bill carefully and took complaints into account. It decided on balance, and without division, that the bill ought to be passed, as that would have greater benefits to the wider community. As I said earlier, on that basis, I will support the bill at decision time.
16:23
It is our last day of term but, instead of getting out the board games, we are here discussing a very important issue. It is worth pointing out how full the public gallery is. I welcome a number of community councillors, the chair of the Portobello for a new school—PFANS—campaign and a number of PFANS members, as well as my Labour colleagues Joan Griffiths and Maureen Child, who are both councillors for the school catchment area. I have also seen the outstanding headteacher of the school, Peigi Macarthur.
There are many other local residents in the public gallery and watching online. Perhaps some are following the debate through the TalkPorty Twitter account or through the Facebook page “A New Porty High School in the Park”, which has more than 2,500 followers. That is evidence of a real community spirit and support for a school on the park.
In the preliminary stage debate, I shared with members the story of Jessie, whose mum and dad I met while chapping doors in the area. Jessie challenged me to take a tour of the school and I did so, recognising how important it was to see the school through the eyes of a child.
Jessie was in primary 2 at Towerbank primary school when she was first promised a new school. She will most likely leave Portobello high school having achieved a complete set of highers in the current building. She has spent an educational lifetime waiting for a new school, and it will likely pass her by.
Jessie has had a first-class education at Portobello high school, as every failure of the building has been more than compensated by the determination of the staff to deliver that education. I pay tribute to the headteacher, Peigi Macarthur, for leading a school that is pounding with life, culture, sport and opportunity. She has never let the challenges of the building overshadow the school’s achievements, and for that she must be commended.
I was at Portobello high last week to see the school show, “Schools Will Rock You”, and I was blown away by the talent of pupils and the dedication of staff who were involved in the production. However, there was a sense of make-do-and-mend: there were a lot of plugs for various bits of equipment all jammed in one place, and the windows were blacked out.
I can contrast that experience with my visit last week to the new Dunfermline high school, which has a dedicated theatre space with all the rigging and the fancy stuff that many an Edinburgh festival theatre venue would envy.
In addition, the Dunfermline school has dedicated 3G pitches, which made me think of the bus trip that the Portobello pupils have to take to the Jack Kane sports centre for physical education lessons. The provision for PE at Portobello is so poor that the school has a special dispensation for the target of two hours of PE, as it has had for years.
I look at the bright, airy and spacious school in Dunfermline and contrast it with the stairwells at Portobello, which are cramped and fraught with problems. Classes at the school are timetabled on the basis of the traffic in the stairwells, in an attempt to minimise the amount of time that the kids spend walking through them from class to class.
I am not envious or jealous of Dunfermline high school, but proud of it. I am proud that we have a school that befits the ambitions of its pupils and teachers, and I want that for everyone, including those in Portobello. I want Portobello to have a first-class community school because of its building, not in spite of it. It would be a community asset and, in my view and according to a number of members in the chamber, an enriching one.
The committee’s report is not black and white. It recognised that the consultation was not perfect, but it stated:
“The Committee does not consider that any shortcomings identified in the consultation process are sufficient to sustain any objection regarding the consultation’s adequacy.”
That takes us back to the concept of proportionality. The question is not whether the consultation was flawed, but whether any flaws were considered to be serious enough. The same goes for the minor loss of green space, views or house price values. The question is not the validity of those arguments, but whether they constitute enough of a reason to block the building of the school on the park.
Members should look at the report’s conclusion. It is quite unusual, as Alison McInnes pointed out, for a committee to comment on the polarisation of the parties involved in a bill. The committee has sent a strong message to the community that it should find a way through the situation. We may think that the referendum debate is fractious and divisive, but it has nothing on the school debate in the Portobello community.
I hope that the journey towards reconciliation and the future will start today, with a vote in this Parliament in favour of building the school on the park. With that vote, I understand that the shovels could be in the ground as soon as September and a new school could be ready for the start of the 2016 term. I hope that today we can all help to realise that ambition.
Thank you, Presiding Officer—that is something of a challenge when one has to remain neutral, as is the case with these matters, but I will do my best.
The debate has been consensual and constructive, and it has focused on a number of areas. First and foremost, we must consider the pupils who are being educated in a building that is clearly no longer fit for purpose. Finding a solution to that problem has been central to everyone’s consideration.
It would be remiss of me not to remind members of the new moneys that were announced today to enable further investment in Scotland’s school estate in partnership with local authorities. The Portobello issue was not necessarily about resourcing, but about the options that were available for a new site.
In her excellent speech, Siobhan McMahon went into great depth about the factors involved. She talked about how we must separate out all the different considerations—what is relevant for a planning authority, how a council considers estate management, legal status and people’s objections and views, which must be in no way dismissed but balanced against the other considerations so that a decision can be taken.
There are calls to enhance the legislation around common good. We will do that through the Community Empowerment (Scotland) Bill, but there will be no wholesale revisiting of common good legislation, because I fear that if we tried to rewrite hundreds of years of legislation we would create many unintended consequences. However, greater transparency and community involvement will feature in the bill in the context of common good assets, which run to a value of hundreds of millions of pounds in Scotland.
There are people in local authorities, for example, who think that common good funds are overly bureaucratic and should be wound up and rolled up into mainstream council funding. I have decided that that is not the appropriate approach. Common good funds are communities’ inheritance and should have a degree of protection.
For that reason, all members were right to point out that the bill will not set a legal precedent and open a new channel for adjusting common good funds. Any council would have to go through a process such as this one to achieve an outcome such as the City of Edinburgh Council is seeking—I must restate that from the Government’s point of view. Like Gavin Brown and other members, I see no great rush from local authorities to come to the Scottish Parliament for similar legislation, even if they aspire to conduct a similar exercise.
Kezia Dugdale made a number of points. A central point was about the quality of education; she also talked about the need for a thorough approach, which delves into the detail, provides robust consideration and shows determination to make the process work. She said that the Labour Party is not whipped, and Fiona McLeod reminded us that Scottish National Party members are not whipped either—I do not think that any party has whipped its members, including the Liberal Democrats and our two Greens. Members are free to vote with their heads and, of course, their hearts.
Kezia Dugdale also told us a very human story to remind us why the new school is so necessary.
Gavin Brown pointed out that the issue has been contentious and the committee has had a difficult task. As the planning system must do, the committee had to balance different interests in coming to its conclusions. It had to consider public benefit and overall benefit. Gavin Brown also talked about the timescales for the bill and the need to ensure that it received careful consideration.
Fiona McLeod said that the committee carefully considered all submissions, as we would expect a committee to do. She reminded us that conveners of private bill committees do not have an easy job. I can tell members that it is also difficult for a minister who has responsibility for decisions to do with local government and planning to balance all the different issues. At some point, we must reach a decision and then justify our decision.
Alison McInnes reminded us that the bill has attracted support as well as objections. She talked about how the planning process for any application sets necessary and relevant conditions, as does the bill. Section 2A, which was inserted by amendment, provides safeguards in relation to future use of the park, which was a key concern of many residents and objectors.
A number of members expressed hope that, whatever the outcome of today’s vote, the community and parties involved, including City of Edinburgh Council, can build bridges and reconnect.
Alison Johnstone talked about the condition of the school building and the need to get the best possible outcome. I have sometimes been a critic of City of Edinburgh Council, but I note what she said about the Greens’ clear view on the outcome of the bill. I am sure that, given their credentials, the Greens will pursue the point about open space, which has been made loudly and clearly.
I talked about enhancing transparency and community involvement in relation to the common good, and about on-going investment in the school programme. It will be for members to decide what is the right thing to do, having heard the arguments that have been expressed not just today but throughout the past year.
Today is the day we make a decision, and then we will move on to focus on all the different issues that have been played out. All I can say about the correspondence that I have received is that we as constituency MSPs, Government ministers and members of the individual parties are contacted by very strong campaigns, but we have to decide and come to a conclusion not simply on the basis of numerical gain but on the basis of what is right after considering all the different factors.
Even if it is inappropriate for me to do so, I will say that having listened to the debate, heard the deliberations and considered the information that has been shared I believe that, whatever members choose to do today, every member who has spoken and expressed such a well-informed opinion has put our collective integrity beyond question on this matter.
First and foremost in our minds has been ensuring a fair process and an equitable hearing and that the rights and interests of individuals as well as the general public good are pursued. In that sense, I think that the debate has been very constructive and takes us to the conclusion of the bill’s passage and the vote in which members will make what they think is the right decision for Portobello high school and on the bill that has been presented to Parliament.
I am sorry; I do not have time to take interventions.
The committee had before it 59 objections to the bill. Consideration of those objections was not an easy task. We considered a diverse range of subject matters during the course of this phase: the promoter’s pre-introduction consultation process; the possibility of the bill setting a precedent for other local authorities to use as a mechanism to bypass the protection of common good land which, it was argued, would occur if the bill proceeded; and issues that are also subject to the planning process.
In determining the approach to assessing objections, the committee was also keenly conscious, as it had been from the start of the scrutiny process, that its role was not to carry out a planning inquiry. Planning matters had already been addressed during two planning application processes. The committee’s consideration of objections under the standing orders was in the context of determining the extent to which an adverse effect of the bill, which might also be a planning matter, would impact on an individual’s private interests and the extent to which that would be balanced by the overall benefit to the community from the bill.
In relation to the practicalities of our approach to the consideration of objections, the objections were provisionally divided into a number of groups on a geographical basis. For example, objectors who live adjacent to the park were identified as one group and those who live in the surrounding area to the north of the park were identified as another group. We put the main group opposed to the school being built on the park—Portobello park action group—and known associated objectors in a group on their own, as we did the golfers, who we considered to be a special interest group.
We consulted all objectors in each of the six groups regarding the selection of lead objectors who, when that was agreed, were invited to co-ordinate oral evidence on behalf of their respective groups. All 59 objectors were also given the opportunity to provide supplementary written evidence in support of their original objection. In the event, only six objectors took up that invitation.
All groups of objectors were represented at oral evidence sessions at the committee. The promoter also attended those sessions. That was intended to allow each party the opportunity to present its case on specific issues and cross-examine the other side.
Before commenting on our views on other issues related to objections, I want to refer briefly to matters that the committee had also considered at preliminary stage. Those included the Parliament legislating after a Court of Session decision; the possibility of the bill setting a precedent; and alternative sites for the school. We set out our views on those issues at the preliminary stage and the committee was not convinced that there was any substantive reason to change those views as a result of the further evidence produced at consideration stage.
At preliminary stage, the committee had encouraged the promoter to reflect on the lessons learned from each aspect of the process in relation to the consultation. We were reassured to learn that the promoter intended to take into account a number of actions for future consultation exercises, such as ensuring that for any public meetings that involve non-council representatives, all participants should be able to comment on the proposed format of the meeting.
Although we did not consider that any shortcomings identified in the consultation process were sufficient to sustain any objections regarding the consultation’s adequacy, the committee noted that the continued reference by objectors to their concerns in this area illustrated a lack of trust between objectors and the promoter.
We continued to be concerned about adequate protection for the site to ensure that it could not be used for any purpose other than the proposed educational function. At consideration stage, therefore, an amendment was lodged by Alison McInnes whose intention was to ensure that, if the park is appropriated under the terms of the bill and then ceases to be used for educational purposes, it will revert to its legal status and be subject to the title restriction on its use at the time of cessation of use. The amendment has also allowed for circumstances where the appropriation occurs but, for whatever reason, the park is not used for educational purposes. In such a case, if the park were not used for that purpose within a period of 10 years—if, for example, school premises were not provided—the legal and title restrictions would once again apply to the park when that period expired. The bill has now been amended to include the terms of that amendment.
In relation to the replacement of open space promised by the council, which would be formed from part of the existing combined site of Portobello high school and St John’s primary school, objectors voiced concerns about the site being outwith the local vicinity, being smaller than the space that would be lost and being beside an existing park.
The council’s commitment to the provision of open space was also questioned, as was the protection that would be provided by Fields in Trust status, which the council intends to seek for the replacement site. The committee had previously urged the council to consider whether there are any other additional measures that could be taken to allay concerns about the security of the replacement open space’s future. In response, the promoter provided details of the other possible measures that it had considered and concluded that none of those measures would provide additional protection at this stage. The preferred solution remained the designation of the land as having Fields in Trust status. The council stated at the committee meeting on 7 May:
“in the circumstances, Fields in Trust protection is the best proposal for allaying any concerns that objectors might have.”—[Official Report, City of Edinburgh Council (Portobello Park) Bill Committee, 7 May 2014; c 361.]
We are content that that designation should provide a satisfactory additional safeguard for the future of the site.
The committee took account of each objection on its own merits and circumstances, but a number of clear themes featured consistently. The main issues that arose included the loss of amenity and green space; road safety, traffic and congestion issues; the visual impact of the proposed development, including the loss of views, the height of the building and lighting; and a number of environmental issues, such as noise pollution, operational disturbances and the loss of wildlife and biodiversity.
In relation to the mitigation measures that might be sought to alleviate concerns in connection with those issues, I highlight that the promoter asked objectors, including in evidence sessions, what proposals they had that might mitigate their concerns in the context of the bill being passed and the school being constructed on the park. Objectors argued that the only mitigation measure would be the school being built on another site.
In conclusion, the committee has spent over 12 months considering the issues pertaining to this divisive bill and is disappointed that there has not been a greater degree of constructive resolution and engagement between the parties. We acknowledge the objectors’ concerns on various fronts. For example, there will inevitably be adverse impacts due to noise and operational disturbance; there will be a visual impact from the construction of the building and some loss of views to Arthur’s Seat; and there are indeed health benefits to be derived from open space, which the park provides. However, the committee also recognises that compensatory and mitigation measures will be implemented as required by the planning process; that there are other green and open spaces in the vicinity; and that there will be other benefits to the community from the new sporting facilities.
Overall, we are satisfied that an appropriate balance has been struck between the private interests of those who would be adversely affected by the proposal and its benefits to the wider community.
I move,
That the Parliament agrees that the City of Edinburgh Council (Portobello Park) Bill be passed.
15:51
Thank you, Presiding Officer—I think.
First of all, I support the motion in the convener’s name and thank my fellow committee members and those who have taken part in this afternoon’s debate.
As has been mentioned, this has been a lengthy process. To reach this point has taken more than a year, and we have held 14 meetings, including six oral evidence sessions. I do not intend to rehearse everything that happened at the preliminary stage—we have had that debate, and the convener referred to it in her speech—but I note that, following a substantial amount of written evidence and having heard oral evidence from the promoter, supporters and objectors, the committee recommended that the general principles of the bill be agreed to and that it should proceed as a private bill, which Parliament subsequently agreed.
That took us to the consideration stage. With 59 objections outstanding, the committee considered long and hard what would be the best approach to scrutiny. The convener has already outlined our approach to grouping objections, but it might be worth noting that, given that the same or similar issues were being raised in the majority of objections, the committee could have divided objections into just two or perhaps three groups. We consciously avoided that, in the reasonable expectation that objectors who are living in different parts of the area around the park might envisage different degrees of adverse effect—for example, in respect of loss of amenity or concerns about traffic. In order to maximise the opportunity for evidence, we agreed to have six groups to ensure that all objectors had an increased opportunity to have their say. To further facilitate evidence from objectors, we accommodated requests from objector groups to reschedule their proposed evidence sessions.
Objections covered a range of issues from loss of amenity to traffic and road safety issues and visual impact. I will touch briefly on some of those points in the time that is available, but I note at this point that having considered all the written and oral evidence that was presented to us by the objectors, and all the responses and commitments that were received from the promoter in relation to compensatory and mitigation measures, the committee reached the view that the adverse effects on the private interests of individuals—that is, the objectors—were outweighed by the benefits that enactment of the bill and subsequent construction of the new school would bring to the local community.
As other members have pointed out, another concern that was presented by the objectors was that the bill would create a precedent for other local authorities to follow suit by trying to introduce bills that would have an impact on common good land in their areas. That point has been considered throughout the process, and we remain of the view that the bill does not create a precedent because it relates solely to a particular area of land in a particular part of a particular city in Scotland. Any bills covering common good land elsewhere would, of course, require to be considered on their own merits and circumstances.
The convener has referred to the compensatory measure of the creation of an area of replacement open space at the site of the current school; I note, as was discussed earlier, that Alison Johnstone lodged an amendment whose effect would have been to bind the City of Edinburgh Council to provide such replacement open space by including the provision in the bill. I echo the convener’s point that the committee was keen to ensure that the council provided such space, and we are satisfied with the promoter’s commitment in that respect. For example, we note the full council’s commitment, in 2012, to make provision for replacement parkland or green space to be used for social and recreational purposes, and that those purposes will be safeguarded by Fields in Trust. Moreover, in March 2013, the council agreed to refer the question of the most appropriate use of that new open space, within the parameters of social and recreational purposes, to a local neighbourhood partnership for consultation.
In written evidence to the committee on 26 March, it was stated:
“The promoter’s letter … of 31 January 2014 … confirmed the commitment to securing the area of replacement open space, offered to provide a further express undertaking to the Committee to that effect, and summarised the … intention to secure Fields in Trust ... On 6 February 2014, the Council’s elected members unanimously approved giving Fields in Trust a written undertaking to the effect that both the replacement open space and the remaining area of open space on the Park will … be dedicated as Fields in Trust”.
I will provide a flavour of some of the objectors’ concerns. As I have mentioned, a number of the groups had predominantly the same or similar concerns, including loss of amenity and visual and environmental impacts, but as the convener said, when objectors were invited by the promoter to put forward any ideas that might mitigate their concerns in those areas, they argued only that the school should be built elsewhere.
The vast majority of objectors argued that they would lose a significant amenity and that it would impact on a variety of recreational activities were the park to be appropriated for the council’s education functions. They supported the argument by suggesting that the loss of green space would have a negative impact on their health and wellbeing.
The committee acknowledged that loss of the park would represent a loss of green space, and acknowledged the general health benefits that are to be derived from such spaces. However, we noted that there are other parkland areas in Portobello. We also recognised—as we had at the preliminary stage—that should the park be built on, replacement open space compensatory measures were planned. We were content that issues of loss of amenity did not outweigh the benefits to the community of a new school’s being built on the park—in particular when considering that the local community would, where appropriate, have access to the sports and leisure facilities that it is proposed will go with the school. Objectors expressed concerns about the visual impact of the development, including the loss of views, the height of the building and the fencing. [Interruption.]
One moment, Mr Dornan. I ask members, particularly those who are just coming into the chamber, to settle down and let us hear Mr Dornan to his conclusion at 4.44 pm.
Many thanks. I now call on Alison Johnstone, after whom we will move to closing speeches.
16:14
I call on the Minister for Local Government and Planning, Derek Mackay, to wind up the debate.
16:28
I, too, thank committee members, and indeed the clerks, who do the work behind the scenes.
When we last met to discuss the bill, I expressed my frustration at the rules that preclude members who represent an area from participating in a private bill process that affects that area. I was worried that my colleagues would not understand the complex and long-standing community interest in the issue and that they would be cold to the arguments from both sides and simply go through the motions, without an affinity for the community in question.
On reflection, that approach was exactly what was needed. I commend committee members and the clerks for their dedicated but dispassionate approach to the bill. They have examined the detail in great depth and have often delved into the detail beyond the strict application of the bill, producing a report that is thorough, robust and a credit to the Parliament.
I have received a number of emails from people who are opposed to the bill, which have questioned the committee’s integrity. Each email follows the same format and highlights the same key points; it feels co-ordinated in the way that many charity-led campaign emails do, but it does not have the parallel numbers.
The same email says that MSPs across Scotland were being told to vote in favour of the bill before any evidence had been heard, and that there is clear evidence that the bill is being rushed through as a political decision and is not being considered on its merits. I categorically refute those suggestions. There is no Labour whip in place for this afternoon’s vote and I understand that every other party represented in the chamber has taken the same decision.
I say to colleagues across the chamber who have perhaps yet to make up their minds that I will vote for the City of Edinburgh Council (Portobello Park) Bill at 4.45 this afternoon, and I will do so with every confidence that it represents the majority will of the community.
There is substantial evidence of community support in the preliminary stage report and in the consideration stage report that was published last month. Let me add to that the reality of my five years of solid campaigning in the constituency. I have spoken to thousands and thousands of voters face to face on their doorsteps. I know that the community wants this school and wants it on the park.
I will say a bit more about the community in my closing speech, but I will spend the last few minutes of my opening speech examining the suggestion that has been made by the objectors that the bill will somehow set a precedent on common good land. The objectors’ email states that because
“there are no plans to reform common good legislation, this bill if passed will allow other councils to take common good land for any purpose they wish”.
It is exactly because the bill is so narrowly defined that no precedent is set. Should Parliament vote in favour of the bill this afternoon, the law of common good remains unchanged except for the specific instance of Portobello park. Paragraph 38 of the consideration stage report could not be clearer in that regard.
The final point that is made regularly in emails from objectors is that the Parliament is overruling a judgment of the courts. The committee addressed that point ably by highlighting the role of the courts as interpreting and applying the law as it stands. Parliament has the power to legislate as it considers appropriate, even if the effect is to change the law as determined by a court. In the simplest terms, that is democracy.
The committee also addressed the European convention on human rights issues. I understand that objectors are considering that as their next legal move. The committee’s preliminary stage report noted that
“a fair balance has been struck between the competing interests of those adversely affected by the scheme and the benefits to the wider community.”
The principle of proportionality has been applied, and I would ask the objectors to consider the concept of proportionality when they consider their next attempt to block the school.
I reiterate my thanks to my diligent colleagues who have served the committee since its establishment. I urge my colleagues in the chamber to vote based on the strength of the consideration stage report. They should be in no doubt that the vast majority of community support is for the bill to progress.
15:59
The very nature of the private bill process, in rightly giving objectors a proper process for their views to be heard, tends to emphasise the negative. After months of considering objections, members of the committee would be forgiven for thinking that no one supported the council taking the proposed course of action, so Kezia Dugdale’s speech was welcome, in that it reminded us just how much support there is in the community for that course of action.
As has been referred to, over the past week all members will have received emails urging them to vote against the bill. In those emails, objectors claim:
“The bill has not been properly scrutinised; evidence has been ignored and objections have been dismissed without even being heard.”
Others complain that the bill is being rushed through, and some suggest that the outcome of the bill process was agreed before it even started.
As a member of the committee who has invested countless hours in the process over the past 13 months, I completely refute those claims. I believe that all members of the committee carried out their duties objectively and conscientiously. We set out our views in a detailed way in two separate reports—our preliminary stage report and our consideration stage report. At this point, it is appropriate for me to take the opportunity to thank the clerks who supported us in that process.
The bill was introduced in April 2013 and the committee has been dealing with it at consideration stage since January. That is hardly rushing it. The procedures that the committee followed ensured that the promoter and the objectors had a fair opportunity to have their respective cases presented. It is worth emphasising that the fact that objections were not upheld by the committee does not in any way indicate that the committee did not take into account all the concerns that were put forward in the objections. Indeed, the committee considered the issues that were raised in a number of ways: through the consideration of individual objections; by giving every objector the opportunity to submit supplementary written evidence at consideration stage; and by ensuring that every objector had the opportunity to be represented by a lead objector at oral evidence sessions.
In a number of areas, the committee acknowledged or accepted that it was possible that there could be a detrimental effect on objectors’ private interests as a result of the construction of the school. For example, we accepted that it was inevitable that there would be some adverse impact from operational disturbance while the school was being constructed and thereafter. However, we were also satisfied that that had been subject to the planning process and that measures would be implemented to mitigate any such impact.
Our role as a private bill committee was to reach a view on the extent to which an individual’s private interests would be affected, and the extent to which that was balanced by the general benefit to the wider community as a result of the school being built. As the convener said, we ultimately concluded—taking account of factors such as the compensatory and mitigation measures that would be implemented—that the general benefits that would be brought to the community as a result of the proposal were more significant than the private interests of those who might be adversely affected.
As the convener explained, only one amendment was lodged during phase 2. It was lodged by me and it was agreed to unanimously. Section 2A of the revised bill will ensure that, once the status of the park has been changed for the limited purposes in question, should that use cease, the inalienable common good status would reapply automatically. It provides safeguards regarding any future use of the land and it protects its inalienable common good status in circumstances in which the land is no longer used for an educational purpose, or in which it is not used for such a purpose in the first instance.
It is worth remarking on the apparently polarised positions of the parties involved with the bill. It is clear that the council has much to do to rebuild trust in some sections of the community. It has an opportunity to do that in taking forward the replacement open space—getting everyone involved to shape the exact nature of that provision could be a way to bring the different factions together around a positive outcome for the community.
If the bill is passed today—and I, for one, will support it—I really hope that the energy and determination that objectors have so far spent on trying to prevent the school from being built on the park, perfectly legitimately, will now be harnessed to ensure that the community of Portobello gets the school that it so badly needs.
The next item of business is a debate on motion S4M-10379, in the name of Siobhan McMahon, on the City of Edinburgh Council (Portobello Park) Bill. Given that I allowed the cabinet secretary’s statement to run on a bit, I am minded to accept a motion without notice to extend the debate.
Motion moved,
That, under Rule 8.14.3, the debate be extended by up to 30 minutes.—[Kezia Dugdale.]
Motion agreed to.
15:39
I speak as a member of the committee that considered this private bill and will concentrate my remarks on reassuring MSPs—both those who are in the chamber and those who are following the debate in their offices—before they vote at 4.45 this afternoon, given the number of emails that they have received and the assertions that have been made in them, that the committee conducted itself in an exemplary fashion.
Having been the convener of a previous private bill committee—the National Trust for Scotland (Governance etc) Bill Committee—I understand how private bill committees have to conduct themselves, and the City of Edinburgh Council (Portobello Park) Bill Committee conducted itself in an exemplary fashion. All submissions from all parties were very carefully considered by all members of the committee, at length and in great detail. When the committee needed clarification, it asked for it from all parties, whether they were objectors or the promoter.
As other members have said, we added an extra meeting to ensure that the witnesses got as much time as possible to give the evidence that they thought the committee had to hear. Indeed, one meeting began at half past 8 in the morning to ensure a timetable that meant that we did not have to curtail the evidence of any witness. We had the timetable and we had the time, if the witnesses could have stuck to it.
As the convener said, we issued two reports—one at the end of our deliberations at the preliminary stage and one at the end of our deliberations at the consideration stage. Private bill committees do not always do that. At all points in the process and at all meetings of the committee, every member took their duties seriously and worked accordingly.
The convener did not have an easy job. In her opening statement, she thanked the other committee members and the clerks and parliamentary officers who supported us. I am sure that I speak on behalf of my fellow committee members when I thank the convener for helping us through this long process. I also record my thanks to the clerks and the parliamentary officers for the support that they gave us in coming to a clear understanding of the process that we were going through and the decision that we reached.
One of the assertions in the emails that I would particularly like to address is the assertion that there was a whipped vote on the bill at the preliminary stage and that there will be a whipped vote today. Presiding Officer, you know that I am a member of the Standards, Procedures and Public Appointments Committee. I take that role as seriously as I took my role on this private bill committee. I am also the senior Government whip, and I make it absolutely clear that neither at the preliminary stage nor at the final stage today have Scottish National Party members been in any way whipped or influenced. The individual members of the Scottish National Party will vote today on the basis of their consideration of the committee’s reports, which were produced with care and due consideration.
My fellow MSPs can be confident in the committee’s reports, confident that everything was examined robustly and confident that those reports are excellent supporting evidence to aid each individual member of the Parliament in making their decision today on whether the bill should be passed.
16:09
As convener of the City of Edinburgh Council (Portobello Park) Bill Committee, I am pleased to open this final stage debate.
I thank all who have assisted the committee in its scrutiny of the bill, including the objectors to the bill and the promoter of the bill. The contributions from both sides on this issue have assisted the committee in reaching decisions on what has been a complex and highly controversial piece of legislation.
I also thank my colleagues on the committee, James Dornan, Fiona McLeod and Alison McInnes for their diligence and hard work in scrutinising the bill and for their support throughout this entire process. I greatly appreciate it.
I also thank the Parliament staff who have assisted the committee in our deliberations, in particular Mary Dinsdale, Stephen Fricker, Lynda Towers and David McGill, for their guidance and dedication throughout the process. Not only were they with us every step of the way, I know that they have given up their personal time to assist us in this lengthy process. For that, I and the other members of the committee are truly grateful.
Finally I would like to thank Richard Welsh, in my own office, who has had the unenviable task of putting up with me throughout the process.
Today represents the culmination of more than a year of hard work since the bill was introduced on 25 April 2013. In total, the committee undertook around 15 hours of scrutiny and evidence taking at consideration stage alone, which resulted in the publication of our consideration stage report on 22 May.
By way of background, for anyone who may not be familiar with it, the purpose of the bill is to remove a legal obstacle that prevents the City of Edinburgh Council from changing the use of Portobello park so that it might become the site of the new Portobello high school. In effect, the bill would change the legal status of Portobello park from inalienable to alienable common good land for the purposes of part VI of the Local Government (Scotland) Act 1973, to allow the council to appropriate it to its education function and build the school on the park. The bill does not itself authorise the building of the school, that being subject to the local authority planning process.
At preliminary stage, the promoter provided details of the alternative legal approaches that had been considered to achieve the promoter’s objective, none of which was as attractive to the promoter as pursuing a private bill. In that context, the committee, at preliminary stage, was aware of the apparent legal anomaly whereby councils can dispose of local authority land to third parties, with the consent of the courts, but are unable to appropriate common good land for other uses, and considered whether one way of addressing that might be by a change to the general law, which applies throughout Scotland.
We therefore wrote to the Minister for Local Government and Planning at that stage and were advised on 21 November 2013 that
“The Scottish Government has not reached any decisions on the subject”.
The minister acknowledged the “importance of the issue” and referred to the consultation on the draft community empowerment bill, which would include
“provisions on greater transparency in the management and disposal of the Common Good”.
The committee concluded at that time that it appeared that, even if the Scottish Government decided to legislate in this area, no such legislation was imminent.
I am aware that the Community Empowerment (Scotland) Bill was subsequently introduced on 11 June and that the provisions of the bill place a statutory duty on local authorities to establish and maintain a publicly available register of all property that is held by them for the common good, and to notify and receive any representations from community bodies or other persons in respect of the list of property that they intend to include on the register. They are also under a duty to publish their proposals and consult community bodies before disposing of or changing the use of common good property. It is clear therefore that the proposals included in the Community Empowerment (Scotland) Bill would not address the wider specific legal anomaly that is addressed in this bill, so the committee’s decision at the preliminary stage that the private bill procedure was suitable for this bill remains appropriate.
With regard to our deliberations at consideration stage, the committee’s task was to consider all remaining objections, which was phase 1, and to lodge any amendments that it felt were necessary as an outcome of those deliberations, which was phase 2.
The committee was very aware that its role included acting and complying with the Parliament’s obligations in terms of human rights. The procedures that were followed by the committee therefore ensured that the parties involved had a fair opportunity to present their respective cases. That was achieved through the extensive evidence that we had before us—the objections themselves, supplementary written submissions and the oral evidence sessions, which ran from 12 March to 7 May 2014. Once we had considered all the evidence, our task was to assess each objection and consider whether the private interests of those adversely affected by the bill outweighed the wider public interest in what the bill seeks to deliver.
I am grateful to the convener for her remarks and for their tone, and for the way in which the committee approached what I think was a difficult task. There was a range of evidence to look at and some complex issues for committee members to get their heads around, and there was a great degree of contention between the promoter of the bill and those who were, quite rightly in their view, objecting to it. That process had to follow the form that it did, and the committee did its job properly and particularly well.
The promoter’s memorandum, which was quoted earlier, says that the purpose of the bill is
“to address the legal obstacle which is currently preventing the new Portobello High School being built on Portobello Park”,
with the aim of reclassifying the park
“as alienable common good land for the purposes of Part VI of the Local Government (Scotland) Act 1973.”
The significant progress that has been made on a couple of items has encouraged me to make my up mind to vote in favour of the bill at decision time today. The first was the firm commitment that was given to designate the existing site as a new park or recreation facility and to give it Fields in Trust status. Although that is not a statutory provision, it provides a degree of safeguarding and weakens some of the arguments against the bill. Secondly, as was referred to earlier, the amendment in the name of Alison McInnes that was lodged at phase 2 of consideration stage restricts the situation somewhat. Effectively, the bill can do only what it says on the tin—it will not give any wider scope to the City of Edinburgh Council or to any other council. Those two points are quite important and they tip the balance in favour of our passing the bill.
Like many other members, I have had a number of contacts from constituents, and from some who are not constituents, criticising the bill and challenging it. It is worth dealing with some of those points by looking at them in some detail.
One of the complaints is that the bill is being rushed through. Rushing through legislation is never a good thing, so that charge must be looked at seriously. However, I compared the timescale of the bill to the timescales of several other bills going through Parliament, and I do not think that they are particularly different.
The City of Edinburgh Council (Portobello Park) Bill was introduced on 25 April 2013. It went through the preliminary stage in January this year and the consideration stage earlier this month, and it reaches its final stage today, at the end of June. That is an approximate timescale of one year and two months.
The Housing (Scotland) Bill was also a complex piece of legislation and we spent a considerable amount of time looking at it in the chamber yesterday. That bill was introduced on 21 November 2013. It had completed stage 1 by the end of April and went through stage 2 earlier this month, and it was passed yesterday. The Housing (Scotland) Bill therefore went through in a shorter timescale than the City of Edinburgh Council (Portobello Park) Bill.
Let us compare the City of Edinburgh Council (Portobello Park) Bill with another very complex piece of legislation that is going through Parliament. The Revenue Scotland and Tax Powers Bill was introduced just before Christmas last year, and it went through stage 1 in May and stage 2 a couple of weeks ago. Although we do not yet have a final date for stage 3, I understand that it will come to the chamber in August. Again, that is a slightly shorter timescale than the timescale that we had for the City of Edinburgh Council (Portobello Park) Bill.
The argument that the bill has been rushed through can be made, but when I compare its timescale to those for other bills, I am not sure that that argument stands up.
On lack of scrutiny, I did not sit through the evidence sessions, and it is valid for objectors to put their point. However, on looking at the Official Report of some of those evidence sessions, the number of evidence sessions that there were during the 14 months and the length of some of those sessions, the level of scrutiny does not strike me as being particularly different from that of other bills that have been passed, having been looked at by committees.
Kezia Dugdale touched on the issue of precedent. I am not convinced that the bill sets a precedent. It is very tightly defined around the co-ordinates within Portobello park, and it is unlikely that lots of councils will now be able to bring private bills to the Parliament—for a start, the Parliament would have capacity issues. For those reasons, I do not think that the bill sets a precedent.
As I have said, come decision time, I will support the bill.
16:05
Thank you very much, Presiding Officer.
In response, the promoter argued that the visual impact had been taken into account as part of the planning process with, for example, the building being designed to retain views of Arthur’s Seat and the majority of fences being low and integrated within boundary planning. It was confirmed that the new football pitches would be floodlit and that the lighting was designed not to spill out to neighbouring houses, and that planning consent was subject to the hours of use of the pitches being restricted.
Objectors maintained that development of the park would lead to a loss of wildlife and the removal of trees, which would cause a loss of habitat for birds and wildlife. The committee acknowledged those and other environmental impacts that would result from the development, but was satisfied with the promoter’s references to compensation measures, which included additional planting and a condition to the planning permission requiring a detailed landscape and habitat management plan.
Objectors who do not live in the immediate vicinity of Portobello park, or who do not live in Edinburgh at all, were included in one group. Their concerns related primarily to issues that had been covered at the preliminary stage: for example, the role of the Parliament in legislating subsequent to a Court of Session ruling, the precedent argument, and alternative sites. However, they also had some concerns about loss of amenity. The committee took the view that although those objectors might experience some loss of amenity, it was clearly not at the same level as that which would potentially be experienced by objectors in the immediate area of the park.
Portobello golf course golfers objected as a special interest group. They principally had two concerns: health and safety and future use of the golf course. On health and safety, the objectors were concerned that there would be risks to school pupils taking short cuts across the golf course. Evidence that was presented by the promoter suggested that there would be mitigation measures to counter those concerns, including appropriate fencing being put in place. On the future of the golf course, the objectors feared that a case might be made for development on the site. The promoter referred to previous assurances that there were no such plans. The committee was satisfied that the golf course did not form part of the area to which the bill applies and that mitigation measures had been proposed to protect the users of both the course and the school.
The committee was satisfied that, although the bill does not authorise the construction of a new high school in Portobello park, the removal of the legal obstacle that is currently preventing it will allow the development to go ahead. The committee, having considered the evidence that was presented to it, including the mitigation measures and commitments that were provided by the promoter, concluded that the benefits that will result from the bill’s being enacted and the construction of the new school on the park will outweigh any adverse effects on the private interests of objectors.
I pass on my sincere thanks to Siobhan McMahon for her role as committee convener. She fulfilled the role particularly diligently. Her handling of all the evidence was impressive; she demonstrated patience and flexibility in managing the oral evidence sessions, giving witnesses ample opportunity to contribute, and she dealt with a significant volume of written evidence and separate correspondence, much of which was unpleasant, to say the least.
I support the motion.
First, I declare my interests as a City of Edinburgh councillor from 2007 to 2011, a current Lothian MSP and a board member of Fields in Trust Scotland. I, too, thank the committee members, and the clerks who supported them in their deliberations.
As an Edinburgh councillor, I visited Portobello high school and was, frankly, appalled by the condition of the building. Learning and teaching in that poorly designed and poorly maintained building is needlessly challenging. If Portobello high school had been properly designed in the first place and had been allocated a meaningful life-cycle maintenance budget, we might not be here today. I know that those who oppose building on the park also whole-heartedly agree that Portobello needs a new school. Passions have run high in this debate because our parks and our schools are among our most precious and most important community assets, and the local community concerned cares deeply about those assets.
The City of Edinburgh Council obtained advice from senior counsel in 2008 that advised the council to seek the court’s permission to appropriate Portobello park before taking any further action. However, that expert advice was not made known publicly and has come to light only as a result of a freedom of information request. The council should have established, without a shadow of a doubt, that it could build on the park. Offers to share costs to do so were not taken up, and the on-going lack of clarity lengthened the debate around the future of the school and the park by some years.
We are now years down the line and we must ensure the best possible outcome for the entire community. My amendment committing the City of Edinburgh Council to provide an area of replacement parkland for that lost if the bill is enacted was not selected for the debate this afternoon, but it can been seen in Tuesday’s Business Bulletin. The people of Portobello want and need a new high school where their young people can flourish and learn. The people of Portobello also need certainty that their environment and quality of life will not be diminished. I fully understand why there are community concerns around that issue. The City of Edinburgh Council has changed its mind previously regarding the provision of replacement open space, so making that part of the bill’s provisions would provide greater protection and recognition at a national level.
That said, Green councillors in the City of Edinburgh Council have ensured, via an addendum that was lodged, that the council will secure the replacement park with Fields in Trust status. As I said, I sit on the Fields in Trust Scotland board and I am reassured that Fields in Trust protection is formally being processed with the City of Edinburgh Council for both the golf course at Portobello park and the new open area that will be where the school currently stands. It is worth noting that there has been no challenge to any site protected by Fields in Trust since it was formed in the 1920s and that it has always successfully negotiated for appropriate replacement provision in cases in which councils have approached it.
I will support the bill at this final stage. Although they are not part of the bill’s provisions, there are assurances in place for the replacement park. I welcome the consideration stage amendment from Alison McInnes on protecting the land’s legal status should it cease to be used for education. There are lessons to learned from this experience and process, not least about how we design our schools in the first place. Are we seriously maintaining them? Are we putting funds aside to ensure that they do not deteriorate to the state that Portobello high school finds itself in?
I look forward to the arrival of a school that pupils in Portobello deserve and the community can be proud of. I look forward, too, to the provision of quality open space that will genuinely enhance the quality of life of people in Portobello. I hope that in future the community can regain the cohesion that makes Portobello such a special place to live.
Will the member give way?
We now move to the closing speeches. I call Gavin Brown, who has up to five minutes.
16:19
I acknowledge the work of the City of Edinburgh Council (Portobello Park) Bill Committee in considering the bill and the efforts of those who made written submissions or gave oral evidence.
As I said when I spoke in the preliminary stage debate on the bill in January, the Scottish Government has taken a neutral position on the bill, as is the case in such matters. The bill does not have any direct impact on Scottish Government policy; the Government is content that it will not have any direct consequences for the general law; and the Government does not have a view on the merits of the proposed site—that is a matter for the council. However, I recognise the widespread agreement that the current Portobello high school building is not fit for purpose and needs to be replaced. I also recognise that the council has identified land at Portobello park as its preferred site for a replacement building, as well as the concerns of those who do not wish to see the park being used for that purpose.
None of those issues is for the Scottish Government: they are local issues that should be resolved locally. The only reason why the matter was brought to the Parliament was that, following a decision by the Court of Session, the only way for the council to achieve its preferred option for the replacement Portobello high school was to secure the passage of a private bill.
An important part of the committee’s consideration was whether there had been sufficient consultation by the council on its proposals. In its preliminary stage report, the committee concluded that there had been adequate consultation, but also that a number of issues had been raised about the detail of the consultation process. It therefore encouraged the City of Edinburgh Council to reflect on those issues.
I share that sentiment. It is vital that local people are properly consulted about and able to influence decisions that affect them. I therefore encourage all local authorities—not just the City of Edinburgh Council—to consider the points that were made during consideration of the bill and to make any changes to their procedures that may be appropriate.
In that context, I will say something briefly about the Scottish Government’s Community Empowerment (Scotland) Bill, which was introduced earlier this month. That bill’s core purpose is to help communities to achieve their own goals and aspirations through ownership of land and buildings and by having their voices heard in the decisions that affect their area. It includes a requirement for local authorities to publish their proposals and consult community bodies before they dispose of or change the use of common good assets. I do not propose a wider redefinition of common good assets.
There can often be uncertainty about what constitutes common good land or the purposes for which it can be used. The Community Empowerment (Scotland) Bill would therefore place a statutory duty on local authorities to establish and maintain a register of all property that they hold for the common good. Taken together, the provisions in the bill would thus substantially improve transparency and accountability in relation to common good land.
In conclusion, the City of Edinburgh Council (Portobello Park) Bill Committee carefully considered the issues that were raised during the bill’s progress. In particular, I note that it sought to address concerns about the future of the site by passing an amendment that was aimed at securing that, if the land ceased to be used for educational purposes, it would revert to its original use and status. That is to be welcomed as being true to the core purpose of the bill. However, I look forward to hearing what other members will say this afternoon. I emphasise once again that the Government continues to take a neutral position on the bill.
15:55
Thank you, minister. I call James Dornan to wind up the debate. Mr Dornan—if you could continue until 4.44, I would be very much obliged.
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