Balancing Permitted Development Rights with Access Rights: Insights from Brown v Glasgow City Council [2025] CSOH 4
Introduction
In the landmark case of Gregory Brown v Glasgow City Council ([2025] CSOH 4), the Scottish Court of Session addressed a significant conflict between planning law and access rights under the Land Reform (Scotland) Act 2003. The petitioner, Gregory Brown, sought judicial review of Glasgow City Council's decision to grant a certificate of lawful proposed use or development for erecting a boundary fence around a sports pitch at Jimmy Johnstone Academy of Football in Cathkin Park, Glasgow. The core issue revolved around whether the council's decision adequately considered its statutory duties to uphold public access rights while exercising permitted development rights under the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (GPDO).
Summary of the Judgment
Lord Sandison, delivering the opinion of the Outer House, dismissed the petitioner's claims, upholding the council's issuance of the certificate. The court found that the certificate of lawful proposed use or development was correctly granted under section 151 of the Town and Country Planning (Scotland) Act 1997, relying solely on planning law provisions. The council's decision did not impermissibly disregard its obligations under the Land Reform (Scotland) Act 2003, as these obligations pertain to matters outside the scope of planning law. Consequently, the petition focusing on access rights did not succeed in challenging the validity of the certificate issued for the fence's erection.
Analysis
Precedents Cited
The judgment extensively referenced several key precedents that influenced the court's decision:
- Brown v Glasgow City Council [2024] CSOH 76: Established that failure to consider statutory duties can render planning decisions irrational.
- Macintyre v Scottish Ministers [2021] CSIH 10: Clarified that certificates under section 151 are purely factual determinations without discretionary planning judgment.
- South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953: Emphasized the necessity of intelligible and adequate reasons in decision-making.
- Cusack v Harrow London Borough Council [2013] UKSC 40: Highlighted the scope of lawfulness within planning certificates.
- Tuley v Highland Council 2009 SC 456 and Forbes v Fife Council 2009 SLT (Sh Ct) 71: Demonstrated landowners' defenses when managing access rights responsibly.
- Bolton Metropolitan Borough Council v Secretary of State for the Environment [2017] PTSR 1063: Addressed reduction of certificates when statutory requirements are not met.
These precedents collectively underscored the boundaries between planning permissions and broader statutory duties, reinforcing that planning authorities must adhere strictly to their specific legal mandates when issuing certificates.
Legal Reasoning
The court's legal reasoning centered on delineating the scope of the certificate of lawful proposed use or development under section 151 of the Town and Country Planning (Scotland) Act 1997. Lord Sandison elucidated that the certificate's purpose is confined to confirming the lawfulness of development within the ambit of planning law, specifically under the GPDO. He emphasized that this does not extend to evaluating compliance with other statutory obligations, such as those under the Land Reform (Scotland) Act 2003.
The judgment highlighted four primary reasons why GPDO provisions do not supersede primary legislation like the Land Reform Act:
- Legislative Hierarchy: The GPDO, being delegated legislation from 1992, cannot override primary legislation unless explicitly stated. There was no provision indicating that the GPDO should prevail over the 2003 Act.
- Provisions of Section 21(7) of the 1972 Act: These allow the GPDO to override pre-1947 enactments but not subsequent primary legislation such as the 2003 Act.
- Disapplication Mechanism: Article 4 of the GPDO permits authorities to disapply its terms for specific areas or developments, indicating that permitted developments are not absolute.
- Section 151(4) of the 1997 Act: This section presumes the lawfulness of developments certified unless there is a material change, which would not be limited to GPDO provisions alone.
Furthermore, the court addressed the respondent's argument that complying with the GPDO sufficed, clarifying that duties under the 2003 Act are distinct and must be considered separately. The decision underscored that the issuance of a certificate under planning law does not prevent other statutory duties from being upheld through different legal mechanisms.
Impact
The decision in Brown v Glasgow City Council has significant implications for the interplay between planning law and other statutory duties in Scotland:
- Clarification of Legal Boundaries: Reinforces the separation of planning permissions from other statutory obligations, ensuring that planning authorities cannot use permitted development rights to circumvent other legal duties.
- Strengthening Access Rights: Affirms that access rights under the Land Reform (Scotland) Act 2003 must be independently upheld, even when planning permissions are granted under GPDO.
- Judicial Oversight: Highlights the judiciary's role in scrutinizing the adherence to statutory duties beyond the immediate scope of planning law, promoting comprehensive compliance by authorities.
- Guidance for Planning Authorities: Provides a precedent for how local authorities should balance permitted development rights with other statutory obligations, ensuring thorough legal compliance.
Future cases will likely reference this judgment when addressing conflicts between different areas of law, particularly where local authorities are tasked with balancing development permissions with other community and statutory interests.
Complex Concepts Simplified
1. Permitted Development Rights (GPDO)
Permitted Development Rights, as outlined in the GPDO, allow certain types of development to proceed without the need for explicit planning permission. In this case, erecting a fence under two meters fell within Class 7 of the GPDO, thereby granting automatic planning permission.
2. Certificate of Lawful Proposed Use or Development (Section 151)
Under section 151 of the Town and Country Planning (Scotland) Act 1997, a certificate of lawful proposed use or development can be issued if the planning authority is satisfied that the proposed operation is lawful at the time of the application. This certificate serves to confirm that no planning enforcement action can be taken under the 1997 Act for the certified development.
3. Statutory Duties vs. Functions
The distinction between 'statutory duties' and 'functions' is pivotal. Duties refer to specific obligations imposed by law (e.g., upholding access rights), while functions denote the broader activities performed by an authority (e.g., exercising planning control). The court clarified that these operate independently and must be separately addressed.
4. Judicial Review
Judicial review is a process by which courts oversee the legality of decisions or actions taken by public bodies. In this case, Brown sought judicial review to challenge the council’s decision on legal grounds, asserting that it was irrational and based on a material error of law.
Conclusion
The decision in Gregory Brown v Glasgow City Council underscores the importance of adhering to the delineated boundaries of statutory duties and permitted development rights. By affirming that the issuance of a certificate under the GPDO does not negate other statutory obligations, the court ensures that local authorities remain accountable to all facets of their legal responsibilities. This judgment not only clarifies the relationship between different legislative frameworks but also reinforces the protection of community and access rights in the face of development initiatives.
For legal practitioners and local authorities, this case serves as a critical reference point in navigating the complexities of planning law and statutory duties. It emphasizes the necessity for comprehensive legal compliance and the need for authorities to remain vigilant in balancing various community interests within their decision-making processes.
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