Old Chiswick Protection Society v Hounslow: planning permission quashed over fallback scheme inconsistency

The Planning Court has quashed the London Borough of Hounslow's grant of planning permission for a 132-home redevelopment near Chiswick House, finding that councillors were misled about an earlier appeal decision on the same site and were never given proper reasons for departing from it.

HHJ Emma Kelly, sitting as a High Court judge, heard the challenge brought by the Old Chiswick Protection Society against Hounslow's decision of 7 August 2025 to approve Burlington Properties London Limited's application for a part six, part ten storey scheme at 1 Burlington Lane, close to Chiswick House and Gardens, Hogarth House and the Old Chiswick Conservation Area.

The site already benefited from an extant permission for 104 flats, granted on appeal in April 2024 after a planning inspector overturned the council's earlier refusal. That refusal had cited poor housing mix, unacceptable living conditions and harmful design, but the inspector rejected each criticism, finding the scheme's living conditions acceptable and its design of high quality with no heritage harm.

When officers assessed the new, larger proposal, which they accepted would cause "less than substantial harm" to nearby heritage assets requiring a balancing exercise under paragraph 215 of the National Planning Policy Framework, the officer's report weighed that harm against various public benefits including the scheme's advantages over the existing fallback permission. Crucially, the report described the fallback scheme as being of poor design and poor quality accommodation, findings repeated in a slide presentation and oral commentary to the planning committee, without disclosing that an inspector had expressly rejected those very criticisms a year earlier. Members were not shown the appeal decision or told of its reasoning.

The society's president, planning silk Russell Harris KC, raised the inconsistency directly at the committee meeting, telling members the inspector had rejected every point now being relied upon about unacceptable living conditions. The council argued this intervention, together with general discussion among councillors, had cured any deficiency in the officer's report, and that legal advice given at the meeting adequately directed members to the outcome of the appeal.

The judge disagreed. Applying the established principle that inconsistent decision-making requires a decision-maker to engage with and give reasons for departing from an earlier, materially similar determination, she found the officer's report had "necessarily disagreed" with the inspector's conclusions on design and living conditions without acknowledging or explaining that disagreement, materially misleading the committee on a matter bearing on its decision. Mr Harris KC's comments, made on behalf of an objector rather than as neutral guidance, addressed only living conditions and were not reinforced by officers or the council's legal adviser, who instead told members they need not examine the detail behind the inspector's decision. That advice, the judge held, compounded rather than corrected the earlier error, leaving the committee without proper regard to the basis of the appeal decision as required by established authority.

The council's fallback argument under section 31(2A) of the Senior Courts Act 1981, that the outcome would highly likely have been the same regardless, was also rejected. Given the prominence afforded to the fallback scheme in the officer's presentation of the heritage balancing exercise, the judge held that concluding the committee would inevitably have reached the same decision on an accurate appraisal would stray into assessing the merits of the decision itself, a task reserved to the decision-maker rather than the court. The claim succeeded and the permission was quashed.