Petition of Gregory Brown for Judicial Review of a decision of Glasgow City Council (Court of Session)

Factual and Procedural Background

The Petitioner sought judicial review of a decision by the Respondent, a local council, granting full planning permission for the erection of a boundary fence around a sports pitch at a municipal park in a major city. The pitch was leased by a charitable trust that provided football training for children, with a lease condition maintaining public access for local community sports groups when the Trust was not using the pitch. The Trust applied for planning permission to erect a 3-metre-high boundary fence with 5-metre-high ball stop netting and a lockable gate controlled by the Trust, intended to prevent unauthorized use and damage to the pitch.

The Petitioner challenged the council’s decision on grounds including a material error of fact concerning the impact on public access, failure to have regard to the relevant development plan, and breach of statutory duty under the Land Reform (Scotland) Act 2003. The case proceeded to a substantive hearing before the court.

Legal Issues Presented

1. Whether the Respondent’s decision to grant planning permission was predicated on a material error of fact regarding the impact on public access to the sports pitch.
2. Whether the Respondent failed to have regard to and properly apply relevant policies in the development plan, including National Planning Framework 4 and the City Development Plan.
3. Whether the Respondent breached its statutory duty under section 13(1) of the Land Reform (Scotland) Act 2003 to uphold public access rights.
4. Whether the Petitioner’s challenge was premature given the availability of alternative remedies under the Land Reform (Scotland) Act 2003.

Arguments of the Parties

Petitioner's Arguments

• The decision was based on a material mistake of fact, specifically the erroneous assertion that public access to the pitch was not being removed, despite evidence that the proposed fence and lockable gate would restrict or exclude public access.
• The Respondent failed to properly consider and apply relevant development plan policies, notably National Planning Framework 4 Policy 20 on blue and green infrastructure and City Development Plan Policies 1 and 6, resulting in unlawful planning permission.
• The Respondent breached its statutory duty under section 13(1) of the Land Reform (Scotland) Act 2003 by granting permission for a fence that restricted public access rights without proper consideration of that duty.
• The challenge was not premature as it concerned the lawfulness of the planning permission decision itself, not the existence or extent of access rights, which could not be addressed by alternative remedies.

Respondent's Arguments

• The decision did not involve a material error of fact; the fence and gate would not remove public access altogether but would allow the Trust to control access in accordance with lease obligations requiring access for local community sports groups.
• The Respondent properly considered and applied relevant development plan policies and exercised lawful planning judgment; the omission of explicit reference to certain policies did not mean they were ignored.
• The challenge under the Land Reform (Scotland) Act 2003 was premature; any dispute about access rights could be resolved by a summary application to the sheriff court under section 28 of the Act.
• The grant of planning permission did not necessarily impede responsible exercise of access rights, and the fence was a reasonable management measure consistent with the lease and planning policies.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
E v Secretary of State for the Home Department [2004] EWCA Civ 49	Establishes criteria for a material mistake of fact giving rise to unfairness as a separate ground of legal challenge.	Applied to assess whether the Respondent’s decision was based on a material factual error regarding public access.
City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33	Clarifies that planning decisions must be made in accordance with the development plan unless material considerations indicate otherwise.	Guided the court’s analysis of the Respondent’s duty to consider and apply development plan policies properly.
Bolton Metropolitan Borough Council v SSE (1990) 61 P&CR 343	Establishes that a failure to consider a material consideration may invalidate a planning decision if it could have made a difference.	Referenced to determine whether non-consideration of certain policies could have affected the Respondent’s decision.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759	Confirms that planning judgment lies within the authority’s discretion, provided all material considerations are considered.	Supported the Respondent’s argument on lawful exercise of planning judgment and the court’s limited role in reviewing planning merits.
R (Plant) v Lambeth London Borough Council [2016] EWHC 3324 (Admin)	Affirms that courts may rely on the conclusions of planning officers when assessing planning decisions.	Supported the Respondent’s reliance on the committee report in justifying its decision.
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345	Outlines grounds for judicial intervention in planning decisions, including irrationality and failure to consider material considerations.	Used to frame the court’s criteria for reviewing the planning judgment exercised by the Respondent.
NLEI Ltd v Scottish Ministers [2022] CSIH 39	Discusses general public duties on authorities and their impact on planning decisions.	Applied to consider the statutory duty under the Land Reform (Scotland) Act 2003 as a material consideration.
Tuley v Highland Council 2009 SC 456	Illustrates circumstances where fencing may be justified as reasonable land management under access rights legislation.	Referenced in relation to the Respondent’s argument that the fence was a reasonable management measure.
Forbes v Fife Council 2009 SLT (Sh Ct) 71	Similar to Tuley, concerning lawful fencing and management of access rights.	Used to support the Respondent’s position on the permissibility of fencing under access rights law.

Court's Reasoning and Analysis

The court first examined whether a material error of fact existed in the Respondent’s decision. It noted the lease terms requiring the Trust to allow local community sports groups access when the pitch was not in use or maintenance, supporting the Respondent’s position that public access was not entirely removed. The court found no material factual error or unfairness arising from the Respondent’s statement that public access would not be removed altogether.

Regarding the development plan, the court reiterated the statutory framework requiring decisions to be made in accordance with the development plan unless material considerations indicated otherwise. It analysed the Respondent’s consideration of relevant policies, including National Planning Framework 4 and the City Development Plan. The court accepted the Respondent’s planning judgment that Policy 21 (play, recreation and sport) was more relevant than Policy 20 (blue and green infrastructure), and that the proposed development complied with the development plan overall. The Petitioner’s criticisms were viewed as disagreements with planning judgment rather than legal error.

Turning to the Land Reform (Scotland) Act 2003, the court found that access rights were engaged ratione materiae because the pitch was a sports field but not analogous to protected playing surfaces like golf greens. The Respondent had a duty under section 13(1) to uphold access rights. The court identified that the Respondent failed to consider this duty in the decision-making process, which was a failure to take into account a material consideration. This failure could have affected the decision, as conditions might have been imposed to balance community interests.

The court rejected the Respondent’s argument that the challenge was premature, distinguishing between challenges to planning permission and disputes over access rights enforceable by summary application. The court held that it had jurisdiction to consider the lawfulness of the planning decision with respect to the statutory duty under the 2003 Act.

Overall, the court sustained the Petitioner’s challenge on the basis of failure to consider the statutory duty under section 13(1) of the Land Reform (Scotland) Act 2003 but rejected the other grounds of challenge.

Holding and Implications

The court found that the decision to grant planning permission was predicated on a material error of law due to the failure to consider the Respondent’s statutory duty under section 13(1) of the Land Reform (Scotland) Act 2003.

As a result, the court granted the declarator sought by the Petitioner and reduced the decision to grant planning permission. The other grounds of challenge, including alleged factual error and failure to properly apply the development plan, were dismissed.

The direct effect of this decision is to invalidate the planning permission granted for the fence until the Respondent properly considers its statutory duties. No new legal precedent was established beyond the application of existing principles concerning planning law, material considerations, and statutory duties to uphold access rights.