Enforcement of Public Access Rights in Planning Decisions: Insights from Petition of Gregory Brown [2024] CSOH 76

Introduction

The case of Gregory Brown v Glasgow City Council ([2024] CSOH 76) presents a significant judicial examination of the balance between local development plans and public access rights under Scottish law. The petitioner, Gregory Brown, challenges the Glasgow City Council's decision to grant full planning permission for the erection of a boundary fence around the sports pitch at Jimmy Johnstone Academy of Football, alleging material errors in fact, failure to adhere to the development plan, and non-compliance with statutory duties under the Land Reform (Scotland) Act 2003.

Summary of the Judgment

The Court of Session's Outer House, presided over by Lord Sandison, found in favor of the petitioner on specific grounds. The court determined that the Glasgow City Council's decision was predicated on a material error of fact concerning the impact of the proposed fence on public access. Additionally, the Council failed to adequately consider relevant policies within the development plan, particularly policies aimed at preserving public access and green infrastructure. Furthermore, the Council breached its statutory duty under section 13(1) of the Land Reform (Scotland) Act 2003 by not properly asserting and protecting public access rights. As a result, the court declared the decision unlawful and ordered its reduction.

Analysis

Precedents Cited

The judgment references several pivotal cases to underpin its reasoning:

• E v Secretary of State for the Home Department [2004]: Established that a material mistake of fact can give rise to an unfairness sufficient to challenge a decision.
• City of Edinburgh Council v Secretary of State for Scotland (1998): Clarified that development plans govern planning decisions unless overridden by material considerations.
• Tesco Stores Ltd v Secretary of State for the Environment (1995): Emphasized the deference courts give to planning authorities’ judgments.
• R (Plant) v Lambeth London Borough Council [2016]: Affirmed that planning authorities may rely on internal reports when making decisions.
• NLEI Ltd v Scottish Ministers [2022]: Discussed the impact of general duties on planning decisions.

These precedents collectively establish the boundaries within which planning authorities must operate, emphasizing the need for factual accuracy, adherence to development plans, and respect for statutory duties.

Legal Reasoning

Lord Sandison meticulously dissected the petitioner’s claims, addressing each point with reference to statutory provisions and case law:

• Material Error of Fact: The court found that the Glasgow City Council incorrectly stated that public access would not be "removed altogether." Evidence from affidavits demonstrated that the erection of the fence would significantly restrict public access, constituting a material error influencing the decision.
• Adherence to Development Plan: The Council failed to consider National Planning Framework 4 Policy 20, which safeguards green infrastructure. While the Council relied on policies related to play, recreation, and sport, neglecting Policy 20 led to an incomplete assessment of the development’s impact.
• Statutory Duty under Land Reform Act 2003: Section 13(1) mandates local authorities to protect public access rights. The Council's decision to erect a fence without adequately ensuring these rights was a breach of this duty.

By failing to integrate all relevant policies and statutory duties into its decision-making process, the Council rendered an unlawful planning permission, justifying judicial intervention.

Impact

This judgment underscores the judiciary's role in enforcing statutory duties and ensuring that local authorities adhere strictly to development plans. Key impacts include:

• Enhanced Scrutiny on Planning Decisions: Local authorities are compelled to conduct comprehensive evaluations of how developments affect public access and comply with all relevant policies.
• Reaffirmation of Public Access Rights: The judgment reinforces the importance of protecting public spaces and ensures that access rights under the Land Reform (Scotland) Act are upheld in planning contexts.
• Judicial Oversight: Courts may increasingly intervene in planning disputes where there are indications of factual errors or statutory breaches, promoting accountability.

Overall, the decision serves as a precedent ensuring that planning authorities cannot overlook critical considerations, especially those related to public access and environmental policies.

Complex Concepts Simplified

Material Consideration in Planning Law

Material Consideration refers to factors that planners must consider when deciding on a planning application. These can include local development plans, environmental impact, community needs, and statutory duties.

Section 13 of the Land Reform (Scotland) Act 2003

Section 13(1) imposes a duty on local authorities to uphold public access rights, which include the rights to be on land for recreational purposes and to cross land. This duty requires authorities to protect routes and means by which these rights can be reasonably exercised.

Judicial Review Standards

In the context of planning decisions, judicial review assesses whether the decision-making process was lawful, rational, and adhered to relevant laws and policies. Grounds for review include error of law, procedural unfairness, and unreasonableness.

Conclusion