The local authority duty to uphold access rights under the Land Reform (Scotland) Act 2003

The Land Reform (Scotland) Act 2003 introduced new public rights of access to the outdoors. These rights to cross and to be on land for a permitted activity apply in many circumstances and in many locations, both rural and urban. The legislative scheme for these statutory access rights confers a special role on local authorities in terms of enforcing and upholding them where they apply, and this duty proved to be decisive in the case of Gregory Brown (Petitioner).1

This litigation was sparked by the decision of a local authority, Glasgow City Council, to allow a fence to be erected by the occupier of land around the perimeter of a football pitch within a public park. The Glaswegian petitioner took issue with various aspects of the permission that was granted by Glasgow City Council in its planning law capacity. Two of the grounds of challenge brought by the petitioner related to: (1) the local authority’s decision being predicated on an error of fact (in relation to the impact of the approved development on public access to the pitch); and (2) a failure to have regard to the relevant development plan. Neither of these arguments proved to be decisive. Instead, as we shall see, and as shall be the focus of this note, Lord Sandison’s decision turned on the local authority’s failure to comply with its duty to uphold the access rights conferred by the Land Reform (Scotland) Act 2003.