Summary and Background to the Bill
3.The purpose of the Act is to change the legal status of the land at Portobello Park, Edinburgh (the “Park”) to allow the Council to use the Park as the site of a new Portobello High School. In the absence of legislation the Council would be unable to do so, because the Park is inalienable common good land.
4.The Council approved the Park as the preferred location for a new Portobello High School on 21 December 2006 following a statutory consultation, and approved the project to build the new school on the Park on 18 December 2008. Planning permission was granted on 24 February 2011 and renewed on 4 December 2013.
5.The Council proposed to appropriate the Park to be used as the site of the new school. This would change the function for which the Park was held and the use to which it was put, though title to the Park would remain in the Council’s name. The change would include moving responsibility for the Park from the Council‘s Services for Communities Department to its Children and Families Department. This proposal was challenged in the Court of Session, and in September 2012 the Inner House of the Court of Session decided that the Council could not appropriate the Park due to its status as inalienable common good land.
6.The Park forms part of an area of land disponed to the Council’s predecessors, the Lord Provost, Magistrates and Council of the City of Edinburgh, by Sir James Miller in 1898. The disposition provided that the land disponed, which also included what is now Portobello Golf Course, was to be “used exclusively as a public park and recreation ground for behoof of the community”. The disposition also contained a condition against building on the Park, other than buildings consistent with the use of the land as a public park or recreation ground. These conditions, together with the historical background to the Council’s acquisition of the Park and the public’s subsequent use of it, mean that the land has inalienable common good status.
7.Section 73(1) of the Local Government (Scotland) Act 1973 (the “1973 Act”) confers on local authorities a power to “appropriate for the purpose of any functions, whether statutory or otherwise, land vested in them for the purpose of any other such function”. Section 75(1) of the Act allows local authorities to use section 73(1) to appropriate “land forming part of the common good of an authority with respect to which no question arises as to the right of the authority to alienate”.
8.The Inner House decided that this power did not extend to inalienable common good land. The 1973 Act also makes no provision for the courts to permit the appropriation of such land, though they can give authorities permission to dispose of it under section 75(2) of the 1973 Act.
9.The Act alters the status of the Park so that, for the purposes of Part VI of the 1973 Act (which includes sections 73 and 75), it is deemed to be “land forming part of the common good” of the Council “with respect to which no question arises as to the right of the authority to alienate”. The Act therefore allows the Council to rely on section 73(1) of the 1973 Act to appropriate the Park.
10.However, the Act is limited so that the Park may only be appropriated for the purposes of its functions as an education authority, and does not change the Park’s common good status. The inalienable status of the neighbouring land (which forms Portobello Golf Course) remains unchanged, and the Act does not affect any other land. The Act does not itself authorise the construction of a new school, which remains subject to statutory planning control.