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High Court quashes grant of planning permission by Secretary of State for Holocaust memorial

A High Court judge has quashed the Secretary of State's decision to grant planning permission for a Holocaust memorial and learning centre in a park bordering the Palace of Westminster.

In London Historic Parks And Gardens Trust v Minister of State for Housing & Anor [2022] EWHC 829 (Admin) (08 April 2022), Mrs Justice Thornton DBE found that the project would breach the requirements of an act passed into law more than a hundred years ago which explicitly references the land earmarked for the memorial.

The claimants advanced five grounds of challenge. However, just grounds 1, 3 and 4 were considered by the Court.

The first ground challenged the test applied by the Inspector and the Minister who agreed with him on the issue of whether there was "substantial harm" to the heritage assets within the gardens, pursuant to the provisions of the National Planning Policy Framework (NPPF).

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The test was derived in part from Bedford BC v. SoSCLG [2012] EWHC 4344 and set out that for the harm to the significance of a heritage asset to be regarded as substantial, the impact on significance must be such that "much, if not all, of the significance [is] drained away".

Ground three contended that the Minister failed to address the provisions of the London County Council (Improvements) Act 1900. Section 8 of the Act explicitly mentions the southernmost part of the gardens and says they should be "be laid out and maintained in manner herein-after provided for use as a garden open to the public and as an integral part of the existing Victoria Tower Garden".

Ground four claimed the approach to the consideration of alternative sites, including a site at the Imperial War Museum in Southwark, was erroneous.

The claimants failed on Ground 1 but succeeded on Ground 3 and Ground 4.

The judge dismissed Ground 1, noting that evidence demonstrated "the Inspector performing his own straightforward, careful estimation and characterisation of the harm to the Buxton Memorial and, as a consequence, to the Garden".

"His analysis is a sophisticated and, at times, poetic calibration of the harm," she added.

On ground 3, the judge dismissed the defendants' argument, which sought to draw an analogy between provisions in the 1900 Act – which predates modern planning control – with conditions in a modern planning permission which state and define the ambit of the planning control. "However, unlike the modern planning Acts, section 8 of the 1900 Act is specific to Victoria Tower Gardens. The historical context revealed by the passage of the Act, which the appeal submissions do not address, is clear," the judge said.

She added: "It supports the construction of section 8(1) as imposing an enduring restriction on the use of the land. Victoria Tower Gardens is an example of land with a statutory restriction (like, for example, much of National Trust land may be declared inalienable, pursuant to Act of Parliament). Any change to its use as a public garden requires parliamentary approval."

In addition, a 1965 repeal of the larger part of the 1900 Act, save for sections 7 - 9, confirms the enduring nature of the obligations imposed by section 8, the judge said.

Ground four was successful only on account of the success of ground three. The judge found that the Planning Inspector and Minister assessed alternative sites for the location of the Memorial "without an appreciation of the implications of the London County Council (Improvements) Act 1900".

Upon circulation of the draft judgment to the parties, the Court received applications for permission to appeal from the Minister and the Secretary of State. The claimants filed submissions in response. Having considered the submissions, the judge refused permission to appeal and said she was not persuaded that the submissions made by the Minister in relation to the construction of the 1900 Act had a "real prospect of success".

Concerning the appeal application, the judge added: "In the absence of a real prospect of success on appeal, there are no other compelling reasons for the appeal to be heard. A 'compelling' reason must be a legally compelling reason. Public interest in the project does not suffice. The argument about construction of section 8 is specific to the present application for planning permission. This is not a case where there is a need to elucidate the legal policy behind section 8 or to investigate the implications of the construction in other factual scenarios."

Adam Carey

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