Consistency in planning decision making

In R (The Old Chiswick Protection Society) v London Borough of Hounslow [2026] EWHC 2278 (Admin), the High Court has quashed a planning permission for a new high-rise development in the Chiswick House Conservation Area. My colleague Craig Shearer has set out the details of the facts and judgment below.

Background and facts

By a decision notice dated 31 March 2023, the London Borough of Hounslow (“the Defendant”) refused an application to extend and redevelop a site to accommodate 104 residential flats with retained office space. The grounds for refusal included an unsuitable housing mix, unacceptable living conditions and a design standard that would harm the area's appearance. Planning permission was granted on appeal, subject to conditions (“the Fallback Scheme”). The Inspector concluded that the development would be of high quality and design and would enhance the character and appearance of the area.

In July 2024, Burlington Properties London Limited (“the Interested Party”) submitted a fresh application for demolition and redevelopment of the site to provide a part-6, part-10 storey building containing 132 self-contained flats. The Defendant’s planning committee was provided with a detailed officer’s report recommending approval of the scheme. The officer’s report identified the Fallback Scheme as holding significant weight in the planning balance. However, it described the Fallback Scheme in negative terms with a poor standard of accommodation, poor visual appearance and low design quality and not the best use of space. The committee was not provided with a copy of the appeal decision.

Oral representations were made on behalf of The Old Chiswick Protection Society ("the Claimant") pointing out that the Inspector had rejected the arguments relating to unacceptable living conditions. A councillor sought clarification from the Defendant's legal advisor, who advised the committee that it did not need to review all the details considered by the Inspector and instead focus on the outcome of the appeal as a material consideration. The committee voted 13 to 1 in favour of granting permission. 

Permission to bring judicial review was granted on a single ground with two alternative limbs: (Ground 1(a)) the Council erred in failing to have regard to the reasons given by the Inspector who had granted planning permission for the Fallback Scheme, and (Ground 1(b)) the Council erred by failing to give reasons for departing from the conclusions reached in the appeal decision. Both limbs engaged the principle of consistency in planning decision-making, established in North Wiltshire DC v Secretary of State for the Environment (1993) P & CR 137, which provides that like cases should be decided in a like manner and that a decision-maker who departs from a previous decision should give reasons for doing so. The central legal question was whether the officers' negative characterisation of the Fallback Scheme, directly contradicting the Inspector's positive findings on the same matters, triggered an obligation to acknowledge the inconsistency and explain the departure. 

The Court’s Analysis

The Defendant and Interested Party argued that the consistency principle was not formally engaged as the proposed development and the Fallback Scheme were different developments. The Court rejected this in applying the practical test from North Wiltshire. The Court found that the officer’s report invited a comparative assessment between the proposed development and the Fallback Scheme, and that the report’s conclusion as to the merits of the Fallback Scheme were "necessarily disagreeing" with the Inspector's findings on living conditions and design quality. The consistency principle was therefore engaged.

The Court found that, by applying the Mansell principles (which, in summary, establish whether there is a real prospect of a fallback scheme coming forward) the officer’s report materially misled the committee with negative comments which were unjustified and contrary to the Inspector's conclusions. Accordingly, the Court concluded that the officer’s report deprived the committee of the opportunity to make an objective assessment of the Fallback Scheme, failed to inform them that the officers' conclusions had been rejected by the Inspector, and failed to explain why the officer’s report was advising a different conclusion to that of the Inspector. The Court found that the misrepresentation of the Fallback Scheme deprived the planning committee of the accurate baseline it needed to carry out the heritage balancing exercise required by paragraph 215 of the NPPF.

In considering too that the meeting was insufficient to remedy the legal error, it was held by the Court that both limbs of the Claimant’s ground were made out. On Ground 1(a), the officer’s report misled the committee as to the Inspector's conclusions, such that the committee was given a misleading picture of the merits of the Fallback Scheme. The Court found that the inaccurate assessment went to the heart of the balancing exercise required under paragraph 215 of the NPPF. On Ground 1(b), as the committee failed to have regard to the Inspector's reasons, it was not possible for it to give reasons for departing from those conclusions. The Claimant's claim succeeded and the planning permission was quashed.

Practical Implications

The judgment serves as an important reminder to local planning authorities that officer's reports must accurately represent the findings of earlier appeal decisions, particularly where a fallback scheme is treated as a material consideration. Where an officer's assessment differs from an earlier Inspector's findings on a critical issue, the report must: (i) acknowledge the inconsistency; (ii) set out the Inspector's conclusions; and (iii) explain the reasons for departure. Importantly, the decision reinforces that there are constraints on the local planning authority’s exercise of planning judgement where there is a valid fallback scheme, whether or not it agrees with the planning merits of that scheme.

For developers, the case highlights the risk that planning permissions may be vulnerable to challenge where the officer's report fails to engage properly with earlier appeal decisions. Where a fallback scheme exists, developers should consider whether their own submissions to committee adequately address how prior appeal conclusions relate to the current proposal, rather than relying on the officer's report alone.

If you have any concerns about the determination of a planning application or the consideration of appeal decisions, please contact my colleague Danny Whittle, who has extensive experience acting on planning judicial reviews and statutory challenges.