Inner House case in which Mr Barr appealed a decision of the Outer House refusing his appeal of East Renfrewshire Council’s decision to grant planning permission to Stewart Milne Homes Limited to construct a development in Newton Mearns.

Background
Mr Barr lived at Fa’side House which was adjacent to the proposed development and was accessed by a tree lined driveway. The planning brief stated that the development should deliver “protection of the existing tree boulevard along the access to Fa’side House”. Mr Barr argued that the Outer House failed to recognise that, when granting permission for the development, the Council had failed to take account of a key requirement in its own planning brief and thus failed to take account of a material consideration.

Decision
The Inner House refused the appeal finding that it was plain from the decision that the judge had correctly identified the legal issue submitted by Mr Barr. It also refused to accept that the Council had failed to have regard to the content of its planning brief. In the Council’s “Report of Handling” there had been express reference to the planning brief and its objectives, including the need to protect the tree boulevard.

In the court’s opinion, Mr Barr’s complaint was, in essence, not that the Council had failed to have regard to the objectives of the planning brief but that they had failed to reach a conclusion that the proposed development would, in a material way, breach the planning objectives. In effect, Mr Barr was arguing that the proximity of the trees to the new development would inevitably lead to the trees requiring to be removed for safety reasons. However, the court found that Mr Barr had failed to show that there was evidence before the Council to support this argument.

In the view of the court, Mr Barr’s criticism of the Council decision related to the merits of the planning decision and to matters on which the Council was entitled to reach a conclusion.

The full judgment is available from Scottish Courts here.

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