Factual and Procedural Background
The Petitioner sought judicial review of a decision by the Respondent, a local authority, to grant a certificate of lawful proposed use or development for erecting a fence around a sports pitch located in a public park. The park is a municipal green space with historical football associations, leased by the Respondent to a charitable trust that operates football training for children. The Petitioner and local residents value the park as a community asset with public access rights, while the Trust wishes to erect fencing to prevent anti-social behaviour and preserve the pitch.
Previously, the Petitioner successfully challenged the Respondent's grant of planning permission for a higher fence, on the basis that the Respondent failed to consider its statutory duty under the Land Reform (Scotland) Act 2003 to uphold public access rights. Subsequently, the Trust applied for and obtained a certificate of lawful proposed development for a lower fence under the Town and Country Planning (Scotland) Act 1997, which the Petitioner discovered only after the prior proceedings concluded. The Petitioner now challenges the lawfulness of this certificate, arguing it was issued without proper consideration of statutory duties and was an attempt to circumvent the earlier ruling.
Legal Issues Presented
- Whether the Respondent lawfully issued a certificate of lawful proposed use or development under section 151 of the Town and Country Planning (Scotland) Act 1997 for the erection of a fence around the sports pitch.
- Whether the Respondent was required to consider its statutory duty under section 13 of the Land Reform (Scotland) Act 2003, relating to upholding public access rights, when determining the lawfulness of the proposed development.
- Whether the certificate complied with statutory requirements, including adequate reasons for its issuance under section 151(3)(c) of the 1997 Act.
Arguments of the Parties
Petitioner's Arguments
- The certificate should be reduced on the same grounds as the earlier planning permission, because the Respondent failed to consider its duty under section 13 of the 2003 Act to uphold public access rights.
- The Respondent’s contention that the certificate was automatically lawful if the proposed development fell within the General Permitted Development Order (GPDO) was incorrect, as primary legislation (the 2003 Act) takes precedence over delegated legislation (the GPDO).
- The Respondent’s duty under section 13 of the 2003 Act to protect access rights was not overridden by the GPDO or the planning authority’s functions under the 1997 Act.
- The certificate was defective for failing to provide adequate reasons as required by section 151(3)(c) of the 1997 Act.
- The Petitioner lacked an alternative remedy that would make this judicial review incompetent, given the irrefutable presumption of lawfulness created by section 151(4) of the 1997 Act.
Respondent's Arguments
- The planning authority’s function under section 151 of the 1997 Act is limited to a binary factual question of lawfulness in planning terms, not involving planning judgment or consideration of wider statutory duties.
- The certificate certifies lawfulness solely for the purposes of planning control enforcement under the 1997 Act and does not affect other statutory regimes, including access rights under the 2003 Act.
- The GPDO grants automatic planning permission for certain classes of development, including the proposed fence, and the Respondent was bound to issue the certificate if satisfied the development fell within the GPDO.
- The Respondent’s duty to uphold access rights under the 2003 Act does not override or conflict with its duty to issue certificates under the 1997 Act; any interference with access rights should be addressed through other statutory mechanisms, such as enforcement or applications to the Sheriff under the 2003 Act.
- The certificate complied with statutory requirements and provided adequate reasons, certifying that the fencing did not require planning permission under the GPDO.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Brown, Petitioner [2024] CSOH 76 |
Failure to consider statutory duty under section 13 of the 2003 Act in planning decisions leads to reduction of planning permission. |
Applied to show similar failure in the present case regarding the certificate of lawfulness. |
| Secretary of State for Transport, Local Government and the Regions v Waltham Forest LBC [2002] EWCA Civ 330 |
Section 151 certificates concern lawfulness in planning terms only, not merits or wider statutory duties. |
Supported Respondent’s argument that the certificate issuance involves a binary factual question. |
| Macintyre v Scottish Ministers [2021] CSIH 10 |
Issuance of certificates under section 151 involves application of law to facts, not planning judgment. |
Confirmed the limited scope of the planning authority’s function under section 151. |
| Cusack v Harrow London Borough Council [2013] UKSC 40 |
Interpretation of lawfulness in planning law context and the limited scope of certificates of lawfulness. |
Used to clarify the meaning of lawfulness under the 1997 Act in relation to certificates. |
| South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 |
Requirements for reasons in administrative decisions: reasons must be intelligible and adequate. |
Applied in assessing adequacy of reasons given in the certificate. |
| Bolton Metropolitan Borough Council v Secretary of State for the Environment [2017] PTSR 1063 |
Judicial approach to failure to take into account material considerations and discretion in granting relief. |
Referenced regarding whether to reduce certificate for inadequate reasons. |
| Tuley v Highland Council 2009 SC 456 |
Defences to claims of interference with access rights by landowners acting responsibly. |
Referenced to show alternative remedies and defences available for access rights disputes. |
| Forbes v Fife Council 2009 SLT (Sh Ct) 71 |
Similar to Tuley, concerning responsible management of land and access rights. |
Used to illustrate the framework for resolving access rights conflicts. |
| Averbuch v City of Edinburgh Council [2023] CSOH 35 |
Certificates under section 151 do not remove need to comply with other statutory provisions beyond planning law. |
Confirmed limited scope of certificates in relation to other legislative regimes. |
Court's Reasoning and Analysis
The Court analysed the statutory framework governing the issuance of certificates of lawful proposed use or development under the Town and Country Planning (Scotland) Act 1997, particularly section 151. It concluded that the planning authority's function under section 151(2) is a limited, binary factual and legal question: whether the proposed development is lawful in planning terms at the time of application. Lawfulness is defined by section 150(2) as the absence of enforceable planning breaches, often evidenced by planning permission granted by a development order such as the GPDO.
The Court rejected the Petitioner’s argument that the Respondent was required to consider its duty under section 13 of the Land Reform (Scotland) Act 2003 when determining lawfulness under section 151. It reasoned that the 2003 Act duty to uphold access rights does not override or conflict with the planning authority's function under the 1997 Act to issue certificates where the development falls within permitted development rights. The Court emphasized that the 1997 Act and the GPDO create an irrefutable presumption of lawfulness for the purposes of planning enforcement only, and do not address other statutory regimes or rights, including access rights.
The Court noted that the Respondent’s duty under the 2003 Act to assert and protect access rights is a separate function, which may be pursued through other legal mechanisms such as enforcement action or applications to the Sheriff. It is not inconsistent for the Respondent to issue a certificate under the 1997 Act while separately fulfilling its duties under the 2003 Act.
Regarding the adequacy of reasons in the certificate, the Court found that although the reasons were brief and could have been more explicit (for example, by referencing the specific GPDO class), they were intelligible and adequate in the context of the straightforward factual question addressed. The certificate’s statement that the fencing did not require planning permission was sufficient to justify its issuance.
The Court also addressed the Petitioner’s concerns about the timing and purpose of the certificate application, concluding that the statutory provisions governing certificates must be applied according to their terms, regardless of any perceived attempts to circumvent prior decisions.
Holding and Implications
The Court DISMISSED the Petitioner’s challenge and refused the prayer of the petition.
The direct effect of this decision is that the certificate of lawful proposed use or development for the erection of the fence remains valid and enforceable for planning law purposes. The Court confirmed that the lawfulness certified is limited to planning control enforcement and does not address or affect other statutory duties or rights, such as public access rights under the Land Reform (Scotland) Act 2003. The Petitioner retains alternative remedies to address access rights issues through other statutory mechanisms. No new precedent was established beyond the interpretation and application of the relevant statutory provisions in this context.