The Old Chiswick Protection Society, R (on the application of) v London Borough of Hounslow

In judicial review of a planning permission, an earlier appeal decision may be a material consideration where a later comparative assessment necessarily agrees or disagrees with a critical aspect of it. The decision-maker must consider both the earlier outcome and its basis. If it takes a different view on a critical matter, it must explain the departure. An officer’s report is unlawful if it materially misleads the committee on that issue. The court presumes that members followed the report unless clear subsequent evidence shows correction. Debate or isolated comments will not necessarily cure the error. Where the error affects the core of the heritage-benefits balance, the high threshold for refusing relief under Senior Courts Act 1981, section 31(2A), is not met.

The claimant, a local amenity society, sought judicial review of the defendant local planning authority’s grant of permission for a taller redevelopment at a site in a conservation area. An earlier Planning Inspector had allowed an appeal and granted permission for a 104-home fallback scheme. That permission had been implemented and remained extant.

The officer’s report treated the fallback scheme as a material comparison but described its design and living accommodation as poor, without explaining that the Inspector had reached contrary conclusions. The committee was not given the Appeal Decision, and later meeting discussions and legal advice did not clearly correct the position. The central issues were whether the consistency principle required consideration of the Inspector’s reasons and reasons for departure, and whether any error was cured or rendered immaterial under section 31(2A) of the Senior Courts Act 1981.

1. Disposition and framework. The claim succeeded and the planning permission was quashed. Under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the proposal had to be determined in accordance with the development plan unless material considerations indicated otherwise. The proposal’s development-plan compliance was not disputed. Paragraph 215 of the National Planning Policy Framework required the less than substantial heritage harm to be weighed against public benefits. The fallback scheme was a material consideration, and the weight given to it was a planning judgment: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.
2. Consistency principle. The fact that the two schemes were different overall did not answer the issue. The practical test in North Wiltshire DC v Secretary of State for the Environment (1993) P & CR 137 required consideration of whether the later decision necessarily agreed or disagreed with a critical aspect of the earlier decision. Because the report invited a comparison and described the fallback scheme’s design and living conditions negatively, it necessarily disagreed with critical positive findings in the Inspector’s decision. The consistency principle was therefore engaged.
3. Inspector’s reasons and officer’s report. The committee needed to know both the fact and basis of the earlier decision, particularly because it was made by a superior planning authority. The report materially misled the committee by failing to explain the Inspector’s contrary conclusions, their basis, or why a different view was being advised. The appeal reference did not place an obligation on members to obtain and investigate the Appeal Decision. Applying R (Havard) v South Kesteven District Council [2006] EWHC 1373 (Admin), ground 1(a) was made out.
4. Correction at the meeting. Under R. (Mansell) v. Tonbridge and Malling Borough Council [2019] P.T.S.R. 1452, the court began with the assumption that the committee followed the officer’s advice. The presentation compounded the error. The objector’s comments were not a neutral or complete correction, councillors’ remarks did not establish the committee’s collective reasoning, and the legal advice failed to direct members to consider the basis of the Inspector’s decision. The cautions in Scottish Widows PLC v Cherwell DC [2013] EWHC 3968 (Admin) and R (Village Concerns) v Wealden DC [2022] EWHC 2039 applied. Although subsequent information can correct an error, as recognised in R (Arthur) v LB of Barnet [2022] EWHC 2933, the totality of this meeting did not do so.
5. Reasons for departure. Since the committee had not understood the Inspector’s reasoning, it could not give lawful reasons for departing from the earlier conclusions. The failure contravened the requirements identified in Dunster Properties Ltd v the First Secretary of State & Anr [2007] EWCA Civ 236 and R (Weston Homes Plc) v Secretary of State for Levelling Up, Housing and Communities [2025] P.T.S.R. 98. Ground 1(b) was made out.
6. Section 31(2A). The threshold under section 31(2A) of the Senior Courts Act 1981 was high. The court had to focus on the impact of the error on the actual decision-making process, rather than predict the merits afresh: R (Bradbury) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog [2025] EWCA Civ 489. The fallback scheme had been given significant prominence and was central to the heritage balancing exercise. The misdescription placed the committee on a false premise, so it was not highly likely that the outcome would have been substantially the same.

not stated in the judgment.