Case in which the Portobello Park Action Group Association sought Judicial Review of the City of Edinburgh Council’s decision to appropriate part of Portobello Park in order to site a new Portobello High School. The action group argued that it was unlawful for the Council to appropriate the park, which is common good land, and even if they were, they were not entitled to do so without the permission of the court.
Although it was unclear exactly when the decision to appropriate the park had been reached, Lady Dorrian found that “at the very latest” the decision had been made in March 2010. As the action group did not bring the case until July 2011, there had been considerable delay which was indicative of taciturnity and acquiescence and Lady Dorrian dismissed the petition on the basis that a plea of mora had been established.
Although the successful plea of mora meant that it was not necessary to reach a judgement on the Council’s decision, Lady Dorrian indicated that if she had been required to do so, she would have found that the Council does have the power to appropriate inalienable common good land. The Council’s powers in relation to appropriation and disposal of land are contained in sections 73 to 75 of the Local Government (Scotland) Act 1973. Lady Dorrian observed:
“Section 73 of the 1973 Act gives a local authority the widest powers to appropriate for the purpose of any function land vested in them for the purpose of any other function[1]… An equally wide general power of disposal is given under section 74, subject to a requirement to obtain the best price. Section 75 of the 1973 Act does two things. By subsection (1) it makes it clear that the provisions regarding appropriation or disposal of land apply to common good land where there is no question arising as to the right to alienate. Where such a question arises, under subsection (2) the power of disposal is limited, in that a local authority may only dispose of such land with the authority of, and subject to any conditions imposed by, the court. The power to appropriate such land remains unfettered.”
The full judgement is available from Scottish Courts here.
(NB: See appeal to Inner House)
All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.
[1] Noting that the only restriction on appropriation is that a local authority may not appropriate land held for allotments without the consent of the Secretary of State. And also that, whilst section 24 of the Town and Country Planning (Scotland) Act 1959 requires a local authority to give public notification of any proposed appropriation and to consider objections made as a result, it not restrict the general power of appropriation
