Public Law

The Outer House of the Court of Session has ruled against an attempt by Portobello Park Action Group Association (“PPAG”) to challenge the legality of the City of Edinburgh Council’s decision to appropriate part of Portobello Park to build a school. The case concerned the appropriation of inalienable common good land.

PPAG sought to challenge the decision on the grounds that there is no power to appropriate inalienable common good land, and even if there was, the exercise of that authority required the consent of the court, although subsequently PPAG dropped the second limb of their argument and relied wholly upon their argument regarding the absence of  a power to appropriate.

Lady Dorrian upheld the Council’s plea of mora on the basis that there had been “..a considerable delay in bringing this petition” and dismissed the petition. Lady Dorrian found that PPAG could not rely on what was described as a “climate of opposition” to avoid any argument of delay and the decision challenged was made at the latest by March 2010. Thus in Lady Dorrian’s opinion the gap between March 2010 and when the challenge was bought in July 2011 was “indicative of taciturnity and acquiescence”.

While it was not necessary for Lady Dorrian to deal with the merits of the case on the basis that the plea of mora was established, her ladyship thought it appropriate to express her view which was that the Council does have power to appropriate inalienable common good land.

The Judgment can be accessed through the attached link.