Issues with Inalienability
Portobello High School
The City of Edinburgh Council proposed to use Portobello Park as the site for the new Portobello High School. Although there was general agreement that a new high school was required, when the land for Portobello Park was purchased in 1898 by the City of Edinburgh Council’s predecessor, it was designated for use “exclusively as a public park and recreation ground” for community benefit and was sold with a condition preventing building on the park grounds unless it was for recreational purposes.
In 2006, Portobello Park was selected by the City of Edinburgh Council as the preferred location for its new Portobello High School. Planning permission was granted in February 2011 but a local community group, Portobello Park Action Group, challenged this. The case went all the way to the Court of Session and in September 2012 the Group’s petition was upheld: the Court found that “not only did local authorities have no power to appropriate inalienable Common Good land,” the Courts also had no power to authorise its appropriation.
In short, the Council could not change the parkland’s purpose from recreation to education and the Court could not authorise them to do so either: the land could not be used as a site for the new school.
In order to circumvent this, the City of Edinburgh Council had to introduce a Private Bill in the Scottish Parliament. The Bill changed the legal status of Portobello Park from ‘inalienable’ to ‘alienable’ Common Good land, and this change allowed the Council to change the parkland’s purpose from recreation to education in turn. This modification is what ultimately permitted the school to be built on the park land.
Although a private act of parliament was an effective tool to overcome issues of inalienability, it was an inefficient and resource-intensive route to take and highlights why Common Good governance requires modernisation.