Planning Permission for Holocaust Memorial quashed

The London Historic Parks and Gardens Trust v The Minister of State for Housing and others [2022] EWHC 829 (Admin)  On 8^th April 2022, Thornton J delivered judgment in the challenge by the London Historic Parks and Gardens Trust to the planning permission for the Holocaust Memorial proposed to be sited in Victoria Tower Gardens between the Houses of Parliament and Lambeth Bridge. She quashed the permission and refused permission to appeal. She allowed the application on the ground that the Inspector and subsequently the Minister had failed to address the provisions of the London County Council (Improvements) Act 1900. It was the claimant’s case that s8 of this Act created a straightforward prohibition on using the relevant part of the Gardens for the provision of the Memorial in the manner proposed. The construction advanced in support of this contention centred s8(1) to s8(8). The judge observed that:

“I am of the view that the wording of section 8(1)…..is to be read as a continuing obligation to keep the land in use as a public garden”.

She further observed that this obligation remained in force as s8 had not been repealed. There was an enduring obligation to layout and retain the relevant land as a public garden and an integral part of the then-existing Tower Gardens. The obligation was not spent. In the particular circumstances of the case, the obligation was a material consideration in an s288 challenge as it went to the deliverability of the proposal for the Memorial on the timescale envisaged by the Inspector. She dismissed the part of the claimant’s challenge based on an allegation that the Inspector had applied the wrong test in deciding whether the harm to the setting of the Buxton Memorial (which is a grade II* listed building) was substantial for the purposes of the policy test contained in the NPPF; but made some observations at [53] of her judgment about the approach to be taken to dicta of Jay J in Bedford Borough Council v Secretary of State [2013] EWHC 2847(Admin) in the light of subsequent Court of Appeal authority. She also dismissed an allegation that the Inspector had erred in his approach to possible alternative sites for the Memorial save to the extent that that was affected by her finding of the construction of the 1900 Act. Richard Drabble QC (leading Meyric Lewis and instructed by Richard Buxton Solicitors) appeared for the claimants. Tim Mould QC and Matthew Henderson appeared for the first defendant minister. Zack Simons (instructed by Richard Max & Co LLP) appeared for Learning from the Righteous as an intervener.