Gregory Brown reckons Glasgow City Council acted unlawfully after it permitted former Celtic ace Jimmy Johnstone’s charity to erect a fence at the city’s Cathkin Park.
The ground was once the home of the second Hampden Park – Queens Park and the now defunct Third Lanark played their home matches at the Southside venue.
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The charity – set up following the former Hoops legend’s death – used Cathkin Park to teach children how to play football. Locals also used the park for recreation purposes.
In May 2023, the trust applied to Glasgow City Council for planning permission to construct a new three metre high boundary fence at the park to prevent “unauthorised use and non-permitted activities” and to stop “unnecessary footfall on the grass”.
The proposed fence was to be three metres high around the perimeter of the fence with a five metre ‘high ball stop netting’ at each side.
Access to the existing pitch was to be controlled by a lockable gate which would be controlled by the trust.
This prompted Mr Brown to raise a judicial review against the trust. He started a crowdfunder to raise funds for the expensive action against the council.
He won his initial action following a hearing the Court of Session last year. Lord Sandison believed the proposal was unlawful.
However, in the days following his victory, the charity applied to the council to erect a smaller fence – this time only 1.99 metres high.
Glasgow City Council officials gave the second application the go ahead. Its legal team believed the decision was lawful as the smaller height was lawful within the terms set down by planning laws.
This prompted Mr Brown’s legal team to return to the Court of Session.
During a recent hearing, Mr Brown’s lawyers asked judge Lord Sandison to pass a legal order stating that the second decision was “irrational” and based on a “material error of law”.
They asked Lord Sandison to overturn the decision.
But in a written judgement published on Friday, Lord Sandison ruled in favour of the local authority.
He upheld submissions that the council acted lawfully in relation to its decision.
However, Lord Sandison said that Mr Brown and other residents who use the park might be able to return to court if find their access rights – under so called right to roam legislation – are compromised.
Lord Sandison also called on Glasgow City Council to do more to try to reconcile the differing interests which Mr Brown and the Jimmy Johnstone Academy of Football have.
In the opinion, Lord Sandison wrote of the Land Reform (Scotland) 2003 Act – the ‘right to roam’ law. He also wrote of section 151 of the Town and Country Planning (Scotland) Act 1997 – the legislation governing the application made by the charity to erect the fence.
Lord Sandison wrote: “The petitioner’s challenge to the issue of the certificate fails for the reasons which have been set out.
“In the course of argument, the respondent’s counsel referred to section 28 of the 2003 Act, not as operating as an alternative remedy which would render this application to the supervisory jurisdiction incompetent, but rather to point out that the petitioner and those supporting him may not be without an adequate remedy should the operation of section 151 of the 1997 Act have an adverse effect on access rights in relation to the pitch and park. “Questions might also arise (though not before the Sheriff) about the apparent failure of the respondent to take action under section 14(2) of the 2003 Act and about the position in which it has placed itself as both the authority with the power and duty to enforce rights of access and the landlord of the entity wishing to restrict such rights, as well as to its apparent role in encouraging the making of the.. application and the consistent position which it has taken in these litigations that the complete enclosure of part of a public park by a fence either two or three metres high is not per se an interference with such public access rights as may exist in relation to the area so enclosed, and that the matter depends on the Trust’s attitude to locking and unlocking that enclosure – a position which is difficult to understand, let alone agree with.
“More substantive issues may arise as to the linked questions of whether such public access as has been taken has been exercised responsibly and whether the erection of a fence would be a responsible and proportionate reaction to any irresponsible usage.
“Those are, however, matters for another day – a day which, it is to be hoped, may be avoided if a more balanced approach to recognising and giving effect to the competing legitimate interests in the beneficial use of Cathkin Park can be found, as undoubtedly it should be.”
The park was once a stadium which held 50,000 – but it became a public space after Third Lanark went bust.
Mount Florida residents objected to the fence prompting Mr Brown to start a crowdfunder.
Locals rallied to the cause, holding fundraising events and protests to draw attention to the park – some held an “emergency picnic” and family fun day to protest against the fence.
On Friday, Lord Sandison dismissed Mr Brown’s latest action, adding: “I shall repel the petitioner’s pleas-in-law, sustain the respondent’s fifth plea, and refuse the prayer of the petition.”
