A change of law for Portobello Park?
In 2011 Edinburgh City Council granted planning permission to itself for a new school to be built on Portobello Park having first announced its intention to develop the park in 2006. The Council, however, faced an additional legal barrier. In 1898 the land was bought by the Council as a condition of its own Private Act to be used exclusively as a park for the benefit of the community – the park is considered ‘inalienable common good land’.
The 1898 title deed makes the restrictions on the land’s use clear:
That the area or piece of ground [Portobello Park] hereby disponed shall be used exclusively as a Public Park and Recreation Ground for behoof of the community of said City and it shall not be competent to nor in the power of my said disponees or their foresaids [Edinburgh City Council] to erect or build or give liberty to any person or persons to erect or build houses or buildings of any kind whatsoever thereon except buildings to be used as a house or houses for the Park officers and Gate Keepers to be employed by my said disponees or for other purposes appropriate to the uses of the area or piece of ground hereby disponed as a Public Park or Recreation Ground.
The established way for Councils to sell or change the use of common good land such as this is to seek the permission of the Sheriff Court in the form of a ‘court declarator’. Edinburgh Council however, after legal advice, decided to change the land’s use from a park to a school without the court’s permission. This decision was challenged in the Court of Session in 2012. The judges decided, on appeal, that the Council’s decision was ultra vires – in other words the Council did not have the power to build a school on the park.
After this court decision the Council decided to pursue a ‘twin track’ approach. The Council bid for an alternative piece of land as a ‘fall-back’ site for the school. The preferred option remained to build on the park. The Court had made it clear that this was illegal and therefore the Council therefore decided to ask the Scottish Parliament to change the law with respect to Portobello Park.
To change the law requires an Act to be passed in parliament. The City of Edinburgh Council (Portobello Park) Bill was recently lodged with MSPs at Holyrood and if voted through, will allow the park (not including the golf course) to be used for educational purposes. Public representations can be made until 24 June 2013.
Community views and engagement
That Portobello needs a new school is not contested – the current building needs to be replaced. Various consultations on educational and planning matters have been carried out over the seven years of the project.
The latest consultation, carried out before lodging the private bill, garnered almost 10,000 valid individual replies which showed a majority in support of the Council’s proposals (70% of Edinburgh respondents), although concerns about the consultation have been raised. After many years of delay and acrimony within the community, many people just want a new school.
There is clearly no apathy in the level of engagement of local people as the site for a new school is a very contentious issue but there are concerns about the nature of the debate and process which are discussed below.
Planning Democracy’s position
Planning Democracy has no view on where or how children in Portobello are educated but we are concerned about creating a fair, inclusive process of land-use decision-making.
The first principle we identify in our manifesto is:
“A culture of active democracy where policy priorities and planning decisions can be debated on equal terms to determine what is in the public interest and what is not.”
The nature of the public debate on the replacement of Portobello School has become tense and highly charged. Deep divisions have opened up in the community between those who wish to see the school built on the Park and those who want the school built elsewhere.
Planning Democracy believes debate over land use is a good thing. We believe robust debate on equal terms allows important issues to be raised, interrogated and better decisions to be made in the end. Democracy is not a simple poll of local views but a fair negotiation and balancing of competing interests – social, environmental, economic, local, national, present and future interests all count.
Key to balancing interests is a debate on equal terms. The charged nature of the debate over “our children’s futures” in Portobello has, however, led to the closing down of debate over alternatives.
Our manifesto identifies the use of names such as ‘Nimby’ or ‘usual suspects’ as a way to de-legitimise people who get involved in local decision-making. In this case study, park supporters have been portrayed as being against a new school (when they are not), against the children, or as interested only in their house prices in order to de-legitimise their input. Park supporters we have spoken to feel their views have been “shouted down”, others fear intimidation if they make their voices heard.
Consultations are rarely neutral exercises and in this case the consultation had a clear focus on the Council’s preferred option of building on the park. It is, of course, the Council’s right to promote a preferred option for developing the school, but councillors and officers also have a role to play in promoting a level playing field of debate and allowing alternatives to be considered. Public opinion is a vitally important part of the debate but democratic decision-making is a balance of public opinion and rational debate.
There is a conflict, as with any planning application on behalf of a council, in the problem of the council ruling on its own application. This is not always an issue and Councillors can fall back on their quasi-judicial role as members of the Planning Committee but, in this case study, the same councillors had previously voted for Portobello Park as the site for the new school before any of the planning issues had been considered. This process is not necessarily fair on the individual councillors and cannot be a level playing field for those who have different views as to where the school should be located.
Finally it is worth highlighting issues over the rule and role of law.
It is generally expected that the law should be applied evenly – everyone should be, by and large, following the same rules. However some flexibility is needed. This is recognised in Scotland through the ability to promote a ‘private bill’ to the Parliament.
“A Private Bill is introduced by a promoter, for the purpose of obtaining particular powers or benefits in addition to, or in conflict with, the general law.” (Scottish Parliament guidance)
In this case study the courts found that Edinburgh Council were not allowed to use the park as they wished; the same applies to other councils in Scotland who hold inalienable common good land. Edinburgh Council however hopes to change this for Portobello specifically through a Private Bill; while objectors argue that the court’s decision should be respected and the law applied evenly.
The role of the Parliament is to balance the private interests, hopefully through robust debate on equal terms, but also balance the wider implications for common good land in Scotland. No precedent will be technically set by passing the Portobello Park Bill, but it may make it “less unusual” for Councils that see development opportunities in previously sacrosanct parks to follow the same procedure. Not much is certain in the planning system, but people may find even less can be predicted if the relative certainty enjoyed by common good parkland protected in perpetuity is eroded.
Many communities find the planning battles they fight are never really over as developers can come back again and again in a “war of attrition”. In this case study, the Council is the developer and the debate has gone to the highest court and, now, the highest elected body in Scotland. The decision in Holyrood is likely to be made in the autumn.