AN ongoing dispute over the proposed use of community park land to build a £41.5 million school in the Capital has reached the courts.
Campaigners fighting against the council’s plans for a replacement Portobello High School have launched a legal challenge.
The Court of Session yesterday heard that Portobello Park Action Group claims Edinburgh City Council cannot appropriate any part of the park, which it claims is inalienable common good land, for a school.
The pressure group is seeking to have a judge make a declaration to that effect in a judicial review.
Alternatively, if the local authority is to proceed with its plans for the school, the group wants authorisation from a court to be sought first. Roy Martin QC, for the campaigners, said: “The problem is there is nowhere, directly or indirectly, in the provision whereby a local authority may appropriate inalienable common good land.”
He told the court the action group had been trying to agree a mechanism with the council to resolve the issue.
The council is contesting the action, maintaining it is ill-founded in law and that it should be dismissed because of the delay in bringing the proceedings.
Mr Martin said it was clear the local authority was not going to agree to co-operate in any judicial resolution of the point, but was going to go ahead without seeking any such authorisation, which had led to the legal proceedings being raised.
The park came into existence following 19th century legislation amalgamating Edinburgh and Portobello.
The legislation provided for acquiring and maintaining a public park or recreation ground “in some situation convenient for the inhabitants of the present Burgh of Portobello”.
Portobello Park Action Group maintains the council proposed to build the new school on part of the park and change its use by “making an unlawful appropriation”.
The council maintains it may lawfully appropriate the piece of land as a site for the new school.
It claims the pressure group has been actively involved since 2006 in the consultation and decision-making process it undertook over proposals for the school, which will replace the current facility in Duddingston Road.
The council said senior counsel provided it with advice telling it in 2008 that it did not require court consent for its proposals for that part of the park.
Planning consent for the school was granted in February last year and the council went through the process to appoint a building contractor, maintaining that building work would have started in November.
But following the legal challenge it approached the preferred bidder to extend the acceptance period, which was agreed for a limited time.
The council said it has incurred more than £1.7 million in professional fees over the proposed new school already.
It alleges that the pressure group has delayed “excessively” in bringing the action for judicial review.
The hearing, before Lady Dorrian, continues.