Town and country planning – Planning permission – Heritage assets – Claimant charity applying for statutory review of defendant secretary of state’s decision to grant planning permission for Holocaust memorial and learning centre – Whether inspector erring in assessment of “substantial harm” to historic environment of gardens – Whether statutory prohibition on locating memorial in gardens – Whether inspector erring in treatment of alternative sites – Application granted
The first interested party secretary of state applied for planning permission for the installation of the United Kingdom Holocaust Memorial and Learning Centre at Victoria Tower Gardens, Millbank, London. The second interested party was a Holocaust Education Charity highlighting the contemporary relevance of Holocaust education. The claimant was a small charity with the principal object of preserving and enhancing the quality and integrity of London’s green open spaces. The first defendant minister was the decision maker on the planning application. The second defendant was the local planning authority for the area.
The claimant applied for statutory review of the decision of the first defendant to grant planning permission for the memorial. All parties supported the principle of a compelling memorial to victims of the Holocaust. However, an issue arose as to the proposed location of the memorial. Victoria Tower Gardens had considerable cultural, historical and heritage significance. It was a Grade II registered park and garden containing three listed structures; the statue of Emmeline Pankhurst (Grade II listed), the statue of the Burghers of Calais (Grade I listed) and the Buxton Memorial Fountain (Grade II listed). The site had contained a garden for public recreation since about 1880.
The questions for consideration were: (i) whether the inspector erred in assessing whether there would be “substantial harm” to the historic environment of the gardens; (ii) whether the London County Council (Improvements) Act 1900 imposed a statutory prohibition on locating the memorial in the gardens; and (iii) whether the inspector erred in his treatment of alternative sites for the memorial.
Held: The application was granted.
(1) In considering whether to grant planning permission, the decision maker was under a general duty to pay special regard to the desirability of preserving the listed buildings potentially affected by the proposals, their settings and any features of special architectural or historic interest which they might possess: section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Whether a proposal caused “substantial harm” or “less than substantial harm” was a matter of judgment for the decision-maker, having regard to the circumstances of the case and the policy in the National Planning Policy Framework (NPPF), in particular, the effect of a particular development on the setting of a listed building. That was subject to the decision-maker giving considerable importance and weight to the desirability of preserving the setting of a heritage asset: Catesby Estates Ltd v Steer [2018] PLSCS 134; [2019] 1 P & CR 5 followed.
In the present case, the inspector performed his own straightforward, careful estimation and characterisation of the harm to the Buxton Memorial and, as a consequence, to the garden. Moreover, the exercise conducted by the inspector was entirely consistent with the approach to paragraphs 195 and 196 (now 201 and 202) of the NPPF: City & Country Bramshill Ltd v Minister of State for Housing, Communities and Local Government and others [2021] PLSCS 49; [2021] 1 WLR 5761 considered.
(2) On its ordinary and natural meaning, section 8(1) of the 1900 Act imposed an enduring obligation to lay out and retain the new garden land for use as a public garden and integral part of the existing Victoria Tower Gardens. It was not an obligation which was spent once the gardens had been laid out so that the land could be turned over to some other use or be developed or built upon at some point after it had been laid out whenever it suited those subject to the obligation.
Section 8(8) could not be read as only covering repair or upkeep. Sections 8(1) and 8(8) were both to the same effect and required the land to be laid out and thereafter kept as public gardens. The detailed prohibitions in section 8(15)-(18) did not detract from the substantive obligation in section 8(1). They simply imposed controls on works that could be carried out (or were not the subject of any absolute prohibition). The advent of the modern planning system has no bearing on the obligations in the 1900 Act.
(3) It was trite law that in deciding whether or not to recommend the grant of planning permission the inspector (and subsequently the first defendant) were obliged to have regard to material considerations: section 70(2) of the Town and Country Planning Act 1990.
The 1900 Act was a material consideration because of the impediment it presented to delivery of the memorial in Victoria Tower Gardens and the importance attached by the inspector to the delivery of the memorial in the lifetime of Holocaust survivors. The omission of a material consideration was a scenario in which the inspector’s decision could be rendered unlawful notwithstanding that the point had not been raised in representations. The potential impediment to delivery of the scheme was a material consideration which was not considered at the inquiry.
(4) Where there were clear planning objections to development, it might well be relevant and necessary to consider whether there was a more appropriate alternative site elsewhere. That was particularly so when the development was bound to have significant adverse effects and where the major argument advanced in support of the application was that the need for the development outweighed the planning disadvantages inherent in it: Trusthouse Forte v Secretary of State for the Environment [1986] 2 EGLR 185 considered.
In assessing the suitability of the gardens and in placing little weight on alternative sites, the inspector placed considerable weight on the timing of deliverability of the scheme. However, the inspector did so without any appreciation of the deliverability issue raised by the 1900 Act.
It could not be said that the existence of the 1900 Act made no difference to the outcome of the decision. Accordingly, the appropriate remedy was to quash the decision, so as to enable further consideration of the implications of the 1900 Act for the proposed scheme.
Richard Drabble QC and Meyric Lewis (instructed by Richard Buxton Solicitors) appeared for the claimant; Timothy Mould QC and Matthew Henderson (instructed by Government Legal Department) appeared for the first defendant; Douglas Edwards QC (instructed by Bi-borough Legal Services) made written submissions for the second defendant; Christopher Katkowski QC and Kate Olley (instructed by Government Legal Department) appeared for the first interested party; Zack Simons (instructed by Richard Max & Co LLP) appeared for the second interested party.
Eileen O’Grady, barrister