Petitioner Gregory Brown argued that the decision to allow the erection of a fence on Cathcart Road, Glasgow, failed to have regard to the relevant development plan and separately failed to comply with the Council’s statutory duty under section 13(1) of the Land Reform (Scotland) Act 2003. The respondent contended that the grounds of challenge were unfounded and in part premature.

The petition was heard by Lord Sandison in the Outer House of the Court of Session. Deans, advocate, and McPhee, advocate, appeared for the petitioner and Burnet KC and Breen, advocate, for the respondent.

Prevent or restrict access

On 22 May 2023, the Jimmy Johnstone Charitable Trust, a charity that leased a football pitch in Cathkin Park, applied for planning permission to construct a new fencing system to prevent “unauthorised use and non-permitted activities” and prevent “unnecessary footfall” on the grass. Under the terms of the lease, public access to the pitch was to be maintained for local community sport groups when the Trust was not using it.

The proposed development consisted of the erection of a 3-metre-high boundary fence around the pitch, with access by way of a lockable gate controlled by the Trust. It was contended by the petitioner that the section of the park to which access would be restricted was frequently used by local residents, in particular residents of the neighbouring Myrtle Park housing estate, for various recreational purposes.

It was submitted for the petitioner that the entire purpose of the proposed development was to prevent or restrict access by the public. A mistake of fact had been made by the respondent in stating that public access would be maintained, which had been material to its decision-making. The proposed development would also amount to a net loss of existing green infrastructure because it would remove public access to a large section of the park.

Counsel for the petitioner went on to submit that the respondent had a duty under the 2003 Act to uphold access rights to the land. While the respondent argued that such a challenge was premature and an alternative remedy could be found in section 28 of the Act, the alternative remedy would not address the petitioner’s complaint.

Potential materiality

In his decision, Lord Sandison said of the first ground of challenge: “The access issue which is inherent in the erection of a perimeter fence was made clear to, and recognised by, the respondent. Its conclusion that public access would not be removed altogether by the proposed development was justified by the ongoing obligation on the Trust to allow local community sports groups to access and use the pitch when it is not being used by the Trust or being repaired or maintained. This first ground of challenge to the decision fails.”

Turning to the development plan argument, he observed: “The petitioner’s criticisms of the respondent’s treatment of the development plan on analysis come to amount to nothing more than a disagreement with the planning judgment exercised by the respondent as planning authority in relation to the application of those policies to the situation at hand. The respondent was plainly aware of the terms and import of the relevant policies, and treated them in a way which could not properly be characterised as irrational even if there was scope for reasonable disagreement about how they might apply to the proposed development.”

He continued: “None of the petitioner’s criticisms of the treatment of the development plan by the respondent meets any of the criteria which would justify the intervention of the court, and this head of challenge accordingly also fails.”

Addressing the respondent’s statutory duty, Lord Sandison said: “Section 13 of the 2003 Act is one of a growing number of general, almost abstract, duties on public bodies to behave in a particular manner. Many of those duties are unlikely to impinge very directly on the field of planning law. Others have a more foreseeably direct potential impact on planning decisions. The duty imposed on the respondent by section 13 of the 2003 Act falls into that latter category.

He concluded: “The apparent failure of the respondent to give any thought to the matter at all inevitably involves the conclusion that it failed to take account of a consideration of at least potential materiality to the decision which it was called upon to take. It is not possible to conclude that, had it considered the potential impact of the section 13 duty on that decision, there would have been no real possibility of a different decision - perhaps involving conditions calculated to produce a more even balance amongst the various community interests engaged in the park and the pitch - being made.”

The petition therefore succeeded in respect of the 2003 Act challenge, and the decision complained of was reduced.