Outer House scales back planning decision to enclose football pitch in Glasgow public park

The claimant Gregory Brown argued that the decision to permit the construction of a fence on Cathcart Road in Glasgow failed to take into account 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 claimed that the grounds for the challenge were unfounded and, in part, premature.

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

Prevent or restrict access

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

The proposed development consisted of the construction of a 10-foot high fence around the pitch, with access via a lockable gate controlled by the Trust. It was alleged by the petitioner that the section of the park to which access was to 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 to the applicant that the entire purpose of the proposed development was to prevent or restrict public access. An error of fact was made by the respondent in stating that public access would be maintained, which was 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 portion of the park.

Counsel for the applicant continued to submit that the respondent had a duty under the 2003 Act to defend the rights of access to land. Although the respondent argued that such a challenge was premature and that an alternative solution could be found under section 28 of the Act, the alternative solution would not address the applicant’s claim.

Potential materiality

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

Turning to the development plan argument, he noted: “The applicant’s criticisms of the respondent’s treatment of the development plan in the analysis 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 in question. The respondent was clearly aware of the terms and import of the relevant policies, and treated them in a way that could not properly be characterised as unreasonable, even if there was scope for reasonable disagreement as to how they might apply to the proposed development.”

He continued: “None of the applicant’s criticisms of the respondent’s handling of the development plan meets any of the criteria that would justify the court’s intervention and therefore this part of the challenge 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 way. Many of these duties are unlikely to have a very direct impact 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 this latter category.

He concluded: “The respondent’s apparent failure to think the matter through inevitably involves the conclusion that he failed to take into account a consideration of at least potential materiality to the decision he was called upon to make. It is not possible to conclude that, had he considered the potential impact of the section 13 duty on that decision, there would not have been a real possibility of a different decision – perhaps involving conditions calculated to produce a more even balance between the various community interests involved in the park and countryside – being made.”

The application was therefore successful in relation to the challenge to the 2003 Act, and the decision complained of was reduced.