The King (on the application of The Old Chiswick Protection Society) v London Borough of Hounslow
| Court | High Court of Justice, King's Bench Division, Planning Court |
| Judge | HHJ Emma Kelly, sitting as a Judge of the High Court |
| Judgment date | 14 September 2026, handed down remotely at 10.30am |
| Hearing date | 21 July 2026 |
| Claim number | AC-2026-LON-001002 |
| Claimant | The King (on the application of The Old Chiswick Protection Society) |
| Defendant | London Borough of Hounslow |
| Interested Party | Burlington Properties London Limited |
| Outcome | Claim succeeds on both limbs of the single ground. The grant of planning permission is quashed. Relief not refused under section 31(2A) of the Senior Courts Act 1981. |
Summary
A conservation society challenged a grant of planning permission on one ground with two limbs: that the council failed to have regard to the reasons of an inspector who had already allowed an appeal on the same site, and that it gave no reasons for departing from him. Both limbs succeeded and the permission was quashed.
The officer's report invited members to compare the new proposal against the consented scheme it would replace, then told them that scheme was not good design and gave a poor quality of accommodation. The inspector had found its design high quality and its living conditions acceptable. Nobody told the committee that.
Background and facts
The site is a five storey vacant office building at 1 Burlington Lane, Chiswick, inside the Chiswick House Conservation Area and close to Grade I heritage assets. In March 2023 the council refused permission for 104 flats on grounds of housing mix, living conditions and design quality. In April 2024 an inspector allowed the appeal. That scheme has been implemented and the permission remains extant.
In July 2024 the developer applied for something different: demolition, and a part six, part ten storey replacement of 132 flats. The officer's report ran to some 109 pages, found less than substantial harm to designated heritage assets, and recommended approval. It told members the consented scheme carried weight because it was likely to be built out if the application were refused. Permission was granted on 7 August 2025 by thirteen votes to one.
The issue
The society said the consistency principle was engaged: the report's judgments on design and living conditions necessarily disagreed with the inspector on the same two questions, so members had to be told his conclusions and the basis for them, and had to give reasons for departing. The council and the developer said the schemes were too different for consistency to bite, that councillors would have understood from the grant on appeal that the inspector must have found the earlier scheme acceptable, and that a planning silk speaking for the objectors had closed any gap. Both also relied on section 31(2A) of the Senior Courts Act 1981.
The decision
The judge did not decide whether the committee was obliged to treat the consented scheme as a material consideration. It had plainly done so, and she said the debate was unnecessary. The question was whether the advice about it was lawful.
Consistency was engaged. The practical test asks not only what the earlier decision decided overall, but whether the later decision maker is necessarily agreeing or disagreeing with a critical aspect of it. The report invited a comparative assessment, and the inspector's findings on living conditions and design quality were critical aspects of his decision.
The report was therefore misleading in a material way. It did not say the officers' conclusions had been rejected on appeal, did not set out what the inspector had concluded, and did not explain why it invited a different conclusion.
The members were entitled to assume the description of the Fallback Scheme provided in the OR was accurate and the onus was not on them to search out a copy of the Appeal Decision to check the veracity of the officers' representations.HHJ Emma Kelly, paragraph 92
Given that the Fallback Scheme was a material consideration, the OR did materially mislead the Committee on a matter that had a bearing on their decision.HHJ Emma Kelly, paragraph 93
Nothing at the meeting cured it. The objector who raised the inspector spoke for a party members were unlikely to treat as neutral, said nothing about design, and gave no account of the inspector's reasons. No officer corrected the report, although one corrected a separate omission about a neighbouring borough's objection.
Remarks by individual councillors could not fix the collective position. The judge held it impossible to discern the committee's view from soundbite comments when not every member spoke. The legal advice made matters worse, telling members they need not go into the detail considered by the inspector.
Public confidence in the planning system is in large part dependant on officers presenting accurate reports to councillors. It benefits no one for officers to give advice or convey judgments, particularly as to material considerations, that they know to have been rejected by a planning inspector.HHJ Emma Kelly, paragraph 100
Section 31(2A) did not save the permission. The council listed the advantages untouched by the error, including the affordable homes and the extra 28 dwellings. The judge accepted the threshold is high and held it was not met.
In circumstances where the Fallback Scheme was given such prominence, the misrepresentation of the features of that scheme meant that the Committee proceeded on a false premise in undertaking the balancing exercise.HHJ Emma Kelly, paragraph 102
The claim succeeded and the decision was quashed.
Practical implications
A fallback cuts both ways. Once officers tell members a consented scheme will probably be built if the application is refused, attention turns to the merits of that scheme, and every judgment about it becomes reviewable. An authority that talks the fallback up must then describe it accurately.
Objectors have a working method here. Obtain the recording of the meeting, set what officers said against what the inspector found, and the gap is a ground. The court went through the agenda item by timestamp.
Section 31(2A) is weaker than authorities treat it. The council could point to eight advantages untouched by the error and still lost, because the flawed material sat at the centre of the balance.
Practice points
- If you rely on a fallback, describe it as the inspector described it. Repeating the authority's earlier criticisms of a scheme that has since been allowed on appeal is the error that quashed this permission.
- Put the appeal decision before the committee, or summarise its reasoning. An appeal reference in the planning history is not enough, because members are entitled to assume the report is accurate and are not obliged to go looking.
- Where the report departs from an inspector on a critical aspect, say so and say why. The reasons must be on the record before the vote, not supplied afterwards.
- Do not rely on an objector to correct your report. A speaker for the other side is not treated as neutral, whatever he gets right, and what he leaves out stays uncorrected.
- Correcting one omission while staying silent on another makes the silence look considered. That contrast told against the council here.
- Legal advice at the meeting is part of the reviewable record. Advice that members need not go into the detail considered by the inspector reads as advice to disregard his reasons.
- Do not plan on section 31(2A). Where the flawed material went to the heart of the balance, listing the scheme's other merits will not show that the outcome was highly likely to be the same.