On 12 September 2012, Lady Paton, sitting in the Inner House of the Court of Session delivered a sizeable blow to local authorities across Scotland by reversing previous favourable decisions on a Council’s ability to appropriate inalienable, common good land for different uses.
The case in question is the judicial review case of Portobello Park Action Group Association v The City of Edinburgh Council  CSIH 69, the full text of which can be read here. The verdict is the latest in a long-running saga over the Council’s stated right to build a new high school against the wishes of some of the community on ground which presently exists as a public park, and which was bequeathed to the Council in 1898 expressly for that purpose.
The case is useful as it offers insight into a number of Scottish areas including planning law, and the law in relation to the powers of local authorities. In particular, it confirms that the judicial review clock does not start ticking until planning permission is actually granted; not, for example, when an application is approved at committee ‘stage’ (subject to the entering into a planning agreement).
The power to alienate
Part of the case turned on the power of the local authority to build on what was agreed to be inalienable, common good land. The Local Government (Scotland) Act 1973 deals with the acquisition and disposal of land forming part of a council’s common good land and includes provisions regarding the disposal of land where there is no question over the Council’s right of authority to alienate. By extrapolation, this means that the local authority’s power is limited where there is a question over its right of authority to alienate. Critically there is no parallel power regarding the appropriation of land and it is usually accepted that in these circumstances the approval of the court is required. As such the 1973 Act does not override the common law insofar as appropriation is concerned. In the Portobello case the Council’s right of authority of alienation of the land was in dispute, and combined with there being no overriding legal provision for a different part of the Council then to appropriate the land, this left Lady Paton in no doubt that the 1973 Act offered no support for the Council’s actions. The Council should first have obtained the permission of the Court of Session to allow it to alienate the land and then appropriated it for a different use.
When to challenge
One of the defences that the Council ran against the judicial review petition was that the Association had not begun proceedings for judicial review of the Council’s decision in a timely fashion and had missed its opportunity – this was submitted under the plea of mora, taciturnity and acquiescence. For this defence to be successful however, all three elements must be present. Mora, which simply means ‘delay beyond a reasonable time’, is largely subjective. What will constitute a reasonable period of time in one case, might not in another.
Taciturnity has been described as ‘a failure to speak out in assertion of a right or claim when a reasonable person would have done so’. To uphold this part of the plea, the Council would need to show that the Association had ample opportunity to raise proceedings and did not do so, until it was too late.
The final part of the plea is that of acquiescence. This is an objective test; did the Association tacitly accept events by its inaction or lack of protest? The Association’s primary counter-argument was that it chose not to raise proceedings until planning had been approved and Lady Paton agreed with this assertion; if the Association had raised an early court action, they might have spent considerable sums of money on litigation which may have ultimately been rendered moot by a failed planning application.
While Scottish developers may be aware that Scotland does not have a fixed judicial review period like England, which itself causes uncertainty, this decision confirms that developers should allow a reasonable period from the formal grant of planning permission before considering a permission to be safe from challenge.
The City of Edinburgh Council may have lost this round of litigation, but the fight may be far from over. The Council claims it has large support from the local community for the building of a new high school, and has an additional ally in the form of Labour MSP Kezia Dugdale. Ms Dugdale has written to Education Secretary, Mike Russell, and Local Government Minister, Derek Mackay, urging them to use a power under section 20 of the Local Government in Scotland Act 2003. This Ministerial Order power would effectively overrule the Inner House decision of Lady Paton and allow building to commence. This Ministerial Order has not been used before however, and using it for this purpose may prove controversial.
Another option could be the introduction of an Executive bill. This would be a public bill introduced into the Scottish Parliament by a member of the Scottish Government. This would allow discussion on the matter at Parliament level, and seems a likely, and low cost, option for the Council.
The final option would be a Private Act of Parliament. This can be introduced by a group of people or a company outwith the Scottish Parliament, who seek powers which are presently at odds with Scots common law.
It appears that the Council has chosen the third of these options, with the BBC reporting that the Council is pursuing the Private Act of Parliament approach in order to obtain permission to begin building on the site. With more than six years of debate on the subject, it seems unlikely that a resolution will be reached in the near future. In the meantime, ensure you know when the clock starts ticking as well as when it stops.