Hansard

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.