Two Glasgow neighbours accused of making common land part of their gardens by fencing it off have been ordered by the council to return the ground.
The Calton residents claim the smelly land was strewn with rubbish and they had tried to contact factors to deal with the problem.
Glasgow City Council demanded the residents of 12 and 6 Edmonton Terrace tear down the fences surrounding the land in question.
But they have lodged an appeal with the Scottish Government against the council’s enforcement notice claiming fence removal “exceeds what is necessary to remedy the alleged breach”.
The council notice said there has been an “unauthorised erection of boundary fencing to annex common land and integrate into garden” at both addresses.
It demanded the householders to: “Remove the unauthorised boundary fencing and restore the area enclosed by this fencing to open space common land.”
But law firm Gillespie Macandrew, representing the residents, argued reducing the height of the fence to one metre would be enough to deal with the issue.
An appeal statement issued by the agent said: “While the council are correct that common land has been annexed (not a planning consideration), there were good reasons for this. The common land was not maintained.
“The appellants made every effort to contact factors, to no avail.
“The appellants were unable to enjoy their property due to the smell emanating from the strip of common land.
“It was a health hazard full of rubbish and dog excrement. Despite efforts to liaise with the council to remedy the situation, none was forthcoming.”
Pointing out its reasons for serving an enforcement action, the council said the “unauthorised boundary” fencing “exceeds one metre in height and is subject to planning legislation.
It said the “erection of the fencing and annexing of common land is considered to set an unwelcome precedent in the neighbourhood”.
But addressing this concern, the agent said: “Fundamentally, this would be a boundary dispute between the appellants and the owner of the annexed land.”
The council also claimed the annexing of common land has caused the narrowing of the adjacent public footpath.
Disagreeing over that claim, the agent said: “No narrowing of the adjacent public footpath has occurred.”
The agent said: “This appeal should be upheld. The notice should be quashed on the grounds that the matters in the notice have not occurred; the matters in the notice do not constitute a breach of planning control; and the steps required to be taken by the notice exceed what is necessary to remedy the alleged breach.”
After the council first contacted the residents in June last year, they made requests for negotiations and cooperation but there was no response from the local authority according to the agent.
They previously also offered to reduce the fencing height to one metre.
The Scottish Government reporter who will make a decision on the case has contacted the council for a response.
Members of the public can also have their say.
By local democracy reporter Sarah Hilley
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