Background
Hounslow granted permission for redevelopment of a vacant five-storey office building at 1 Burlington Lane, Chiswick, into a part-six, part-10 storey scheme containing 132 flats, commercial space and public-realm works. The site lies in the Chiswick House Conservation Area and near significant listed heritage assets, including Chiswick House and Gardens, Hogarth House and St Nicholas’ Church.
An earlier, smaller scheme for 104 flats had been refused by the council but allowed on appeal by a Planning Inspector in April 2024. That fallback permission had been implemented and remained extant. The inspector found that its living conditions and design were acceptable and that it would enhance the conservation area. In approving the new scheme, the council’s officers described the fallback scheme as having poor-quality accommodation and design, while treating it as a significant consideration in the planning balance.
The Court’s Holding
HHJ Emma Kelly held that the council acted unlawfully and quashed the permission. Although the two schemes were materially different overall, the council’s comparative assessment necessarily conflicted with critical findings in the Inspector’s earlier decision: the officers portrayed the fallback scheme’s living conditions and design as poor, whereas the Inspector had found them acceptable and of high quality.
The officer’s report failed to tell councillors that the Inspector had rejected those criticisms, failed to explain the Inspector’s conclusions and reasons, and gave no reasons for departing from them. The court held that this materially misled the committee on a material consideration. Comments by the claimant’s representative during the meeting, and the council’s legal advice that councillors need not examine the Inspector’s detailed reasoning, did not cure the defect.
Key Takeaways
- Where a council relies on an extant fallback permission in a comparative planning balance, it must accurately present relevant findings underlying that permission.
- Consistency principles apply where a later decision necessarily disagrees with a critical aspect of an earlier Planning Inspector decision, even if the overall schemes differ.
- The court could not conclude that the same outcome was highly likely without the error because the misleading appraisal of the fallback scheme went to the heart of the heritage balancing exercise.
Why It Matters
The decision underscores that planning officers cannot characterise a fallback scheme as deficient while omitting that a Planning Inspector expressly rejected the same criticisms. Councillors are entitled to rely on officer reports and are not expected to locate and analyse prior appeal decisions themselves.
For heritage cases, the judgment also illustrates the importance of a sound evidential baseline when weighing less-than-substantial heritage harm against public benefits under paragraph 215 of the NPPF.