High Court quashes planning permission for 132-flat scheme over misleading officers’ report

HHJ Emma Kelly sitting as a judge of the High Court, said: “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.”

The Old Chiswick Protection Society brought the case over planning consent for a development in Chiswick, arguing the council erred in failing to have regard to the reasons given by a planning inspector, who had previously granted planning permission for an alternative scheme at the site, and by failing to give reasons for departing from the inspector’s conclusions.

HHJ Kelly heard the site is occupied by a five-storey vacant office building and falls within the Chiswick House Conservation Area in close proximity to Grade I heritage sites.

Hounslow in 2023 refused an application to redevelop it with 104 flats and office space, which the council felt would fail to provide a suitable mix of housing, and would  have unacceptable living conditions.

A planning inspector allowed an appeal but in 2024 developer Burlington Properties, an interested party, applied for planning permission for a different scheme to demolish the existing building and replace it with with 132 flats.

In August 2025, Hounslow’s planning committee granted this after an officer’s report recommended approval and discussed the previous grant of permission by the inspector for ‘the fallback scheme’.

The society submitted that the consistency principle was engaged as the officer’s report concluded that the fallback scheme was deficient in certain aspects notwithstanding the inspector’s conclusion that it was not.

HHJ Kelly noted: “It is said that the [officer’s report’s] conclusions led to the committee comparing the proposal with a sub-standard fallback scheme, rather than focussing on the extent to which the proposal was an enhancement over an already acceptable fallback scheme.”

The society argued there was a straightforward legal error because the officer’s report’s advice was erroneous.

It said the committee granted permission after hearing the fallback scheme was deficient, but not that this was directly inconsistent with the inspector’s findings.

Hounslow argued the committee was aware of the inspector’s reasons for the appeal decision, took them into account, and reached a lawful planning judgment that the proposal was a superior scheme offering benefits over and above those of the fallback scheme.

The council did not accept that the consistency principle was formally engaged as the committee could rationally find the proposal was superior to the fallback scheme without disagreeing with the inspector’s conclusion that the fallback scheme was, taken on its own, acceptable development.

HHJ Kelly said: “The defendant’s primary position is that it does not accept that the [officer’s report] was misleading such that it amounted to a legal error.”

Hounslow said it was made clear that permission for the fallback scheme had been granted on appeal and the committee would have known this history.

The judge said the North Wiltshire case required a practical test asking whether the decision maker is necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case.

“The [officer’s report’s] conclusion as to the merits of the fallback scheme for the purpose of the comparative assessment was therefore ‘necessarily disagreeing’ with the inspector’s findings. The principles of consistency referenced in North Wiltshire are thus engaged.”

HHJ Kelly said the overall effect of the report was “that the reader is left in no doubt that the advice is that the fallback scheme is a ‘bad’ scheme and one which is at high risk of being built out if the proposal is refused.

“I do not accept the submission that the committee would have appreciated from the [officer’s report] that the inspector must have rejected the criticisms (or some of them) in granting permission.

“At best, the committee would have appreciated that the inspector found the fallback scheme to be acceptable overall but would not have known that the inspector expressly disagreed with the officers’ assessment of design quality and living conditions.”

She concluded: “Given that the fallback scheme was a material consideration, the [report] did materially mislead the committee on a matter that had a bearing on their decision.

“The [report] did not inform the committee that the officers’ conclusions as to the design and living accommodation aspects of the fallback scheme had been rejected by the inspector, or explain what the inspector concluded on those aspects, or explain that the [report] was advising the committee to reach a different conclusion to the inspector on those aspects and, if so, why.”

She said both limbs of the society’s ground were made out, and the committee was “given a misleading picture of the merits of the fallback scheme.

HHJ Kelly concluded: “Public confidence in the planning system is in large part dependent 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.

“Councillors risk making flawed decisions in ignorance of material information. Objectors risk feeling deprived of a fair opportunity to engage in the planning process. Applicants inevitably end up frustrated with uncertainty and delay.”

Mark Smulian