Challenge of certificate of lawful use for proposed fence in Glasgow football park refused by Outer House

About this case:

• Citation:
  [2025] CSOH 4
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Petitioner Gregory Brown sought declarator that the issue of the certificate was irrational and predicated on a material error of law, along with reduction of the decision. Mr Brown had previously succeeded in having a grant of planning permission for the fence reduced, which led to the application for the certificate now complained of.

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

Uphold access rights

The football pitch in Cathkin Park was leased by the respondent to the Jimmy Johnstone Charitable Trust, a charity which used the pitch for football lessons. The trust had taken the view that some users of the park engaged in anti-social behaviour which spoiled the pitch for its intended use and so wished to enclose it with a three-metre-high fence in order to better preserve it. It was maintained by the petitioner and other locals that the park was a valuable community asset put to extensive and good use by all manner of people for the benefit of their physical and mental health.

After the petitioner applied for reduction of the grant of planning permission the Trust applied for a certificate of lawful proposed use or development, apparently at the suggestion of the respondent, for a fence at a reduced height of 1.99 metres. The certificate was granted on 28 May 2024, before the substantive hearing in the previous proceedings, however this was not disclosed during those proceedings. As such, the petitioner first discovered the certificate’s existence when the temporary fencing around the pitch was not removed after his success in the first petition.

Counsel for the petitioner referred to the decision in the previous proceedings and submitted that the certificate fell to be reduced for the same reason as the grant of planning permission was. Again, no consideration had been given to the duty under section 13 of the Land Reform (Scotland) Act 2003 to uphold access rights in a case where a private organisation sought to exclude access to public land.

For the respondent it was submitted that the Trust’s application stated that it understood that the fencing at its new proposed height would not require planning permission due to falling under permitted development rights. The planning authority was faced with a binary question of whether the proposal was lawful or unlawful and was bound to issue a certificate if it was the former.

A simple answer

In his decision, Lord Sandison began by saying: “It is not difficult to understand the rationale for the petitioner’s view that the application for and grant of a certificate was a ruse to sidestep the difficulties which might attend the grant of planning permission by the respondent for a fence of rather greater height, particularly given the timing of the application when compared with the institution and progress of the previous proceedings.”

He continued: “A two-metre-high fence will just as effectively prevent the exercise of such public access rights as may exist in relation to the pitch at Cathkin Park as would one a metre higher and the height difference is thus, from the point of view of those asserting such rights, immaterial. However, the question raised by the petition must be answered by consideration of the import of the statutory provisions applicable to the grant of such certificates rather than by reference to the different provisions governing the grant of planning permission by the respondent.”

Assessing the decision-making process of the respondent, Lord Sandison said: “The issue that the respondent had to decide when the application for a certificate was made to it was a straightforward one; if the proposed fence were to be erected, would it be susceptible to planning control enforcement? That was not an exercise which involved the weighing up of various factors or the exercise of any planning judgment or discretion, but rather called only for a simple answer.”

He concluded: “The answer which the certificate provided to that question was, unfortunately, the wrong way round; instead of saying that the erection of the proposed fence would be lawful and therefore did not require planning permission, it should have said that the proposed fence did not require planning permission and therefore its erection would be lawful. Nonetheless, the statement that planning permission was not required for the proposed development was clearly made. That was a correct statement and – just – sufficed to explain and justify the issue of the certificate.”

The prayer of the petition was therefore refused.