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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Historic Parks And Gardens Trust v Minister of State for Housing & Anor [2022] EWHC 829 (Admin) (08 April 2022) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2022/829.html Cite as: [2022] EWHC 829 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE LONDON HISTORIC PARKS AND GARDENS TRUST |
Claimant |
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| -and- |
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| (1) THE MINISTER OF STATE FOR HOUSING (2) WESTMINSTER CITY COUNCIL |
Defendants |
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| -and- |
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| (1) THE SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT (2) LEARNING FROM THE RIGHTEOUS |
Interested Parties |
____________________
Timothy Mould QC and Matthew Henderson (instructed by Government Legal) for the First Defendant
Douglas Edwards QC (instructed by Bi-borough Legal Services) for the Second Defendant (written submissions only)
Christopher Katkowski QC and Kate Olley (instructed by Government Legal Department) for the Secretary of State for Housing Communities and Local Government
Zack Simons (instructed by Richard Max & Co LLP) for Learning from the Righteous
Hearing dates: 22nd and 23rd February 2022
____________________
Crown Copyright ©
The Hon. Mrs Justice Thornton :
Introduction
"there should be a striking new memorial to serve as the focal point for national commemoration of the Holocaust. It should be prominently located in Central London to attract the largest possible number of visitors and to make a bold statement about the importance Britain places on preserving the memory of the Holocaust."
1) Did the inspector err in his assessment of harm to the historic environment of the Gardens; in particular the setting of the Buxton Memorial?
2) Does the London County Council (Improvements) Act 1900 impose a statutory prohibition on locating the Memorial in the Gardens?
3) Did the inspector err in his treatment of alternative sites for the Memorial?
Background
The parties
The Holocaust Memorial and Learning Centre
Victoria Tower Gardens
Site selection
Planning application
The Planning inquiry
The Planning Inspector's Report
a) The effect of the proposal on designated and non-designated heritage assets, including of specific relevance to the challenge; whether the proposed development would preserve the setting of the Buxton Memorial, a Grade II* listed building;
b) Other material considerations, including any public benefits the proposals might bring; the principle of the proposed development; Victoria Tower Gardens as a location for the memorial, the consideration of alternative sites for the Memorial and the timing and content of the proposals.
a) the harm from the development to the Buxton Memorial and the Gardens did not approach anything near the NPPF policy threshold of 'substantial harm' (IR 15.69; 15.94 and 15.117).
b) Nonetheless, the measure of harm to the Buxton Memorial should be assessed as being of great importance and the weight to that harm should be characterised as considerable. The weight to be apportioned to the (moderate) harm to the Registered Park and Garden should be characterised as considerable (IR 15.69; 15.94 and 15.117).
c) In terms of public benefit, the proposal fully meets the Holocaust Memorial Commission recommendation for a striking new memorial prominently located in central London. Location of the Memorial adjacent to the Palace of Westminster is a public benefit of great importance. These factors merited considerable weight in the heritage and planning balance (IR15.155-15.161).
d) Alternative locations should be taken into account when determining the acceptability of the proposal if they would avoid an environmental cost (IR15.164).
e) Whilst seeming to offer a benign alternative, the Imperial War Museum site lacks a detailed scheme that would meet the core requirements of the HMC and has clear constraints that may hamper delivery. The weight to be afforded to it was therefore very limited (IR15.169).
f) The two other sites merited still lesser weight than the site at the Imperial War Museum (IR15.169).
g) Achieving a memorial within the lifetime of survivors of the Holocaust has a resounding moral importance that can be considered a material consideration and a public benefit of great importance meriting considerable weight in the planning balance (IR15.170 -172).
h) Weighing the public benefits of the proposal (including its location next to Westminster and the delivery of a Memorial within the lifetime of survivors) against the identified heritage harms, and taking account of the limited viability of alternative locations, the balance can be seen to clearly and demonstrably weigh in favour of the proposals (paragraph 196 (now 202) NPPF)(IR 15.186-15.189).
i) On a fine balance, overall, the proposals cannot be judged to be in accordance with the development plan when read as a whole (IR15.279).
j) However, the significant range of truly civic, educative, social and even moral, public benefits the proposals offer would demonstrably outweigh the identified harms the proposals have been found to cause. The outcome of this balance amounts to a material consideration of manifestly sufficient weight to indicate in this case that determination other than in accordance with the development plan is justified (IR15.283).
The decision to grant planning permission
Grounds of challenge
Ground 1 – The Planning Inspector (and Minister) applied the wrong legal test to the issue of whether there will be 'substantial harm' to the heritage assets within the Gardens. The correct application of the test would have led inevitably to the conclusion that the harm to the significance of the Buxton Memorial was substantial and which would have led in turn to a very different test for the acceptability of the proposal.
Ground 4 – The Inspector (and Minister) erred in law in considering that in order to attract significant weight, the merits of any alternative sites must be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative.
Ground 3 – The Inspector (and Minister) failed to address the provisions of the London County Council (Improvements) Act 1900, which creates a straightforward prohibition on using the Gardens for the provision of the Memorial in the manner proposed.
The Court's jurisdiction under s288 Town and Country Planning Act
1) Decisions of the Secretary of State and his Inspectors are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues.
2) The reasons for the decision must be intelligible and adequate enabling one to understand why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues.
3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision maker. They are not for the Court. An application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an Inspector's decision.
4) The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision maker. Statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context.
Ground 1: Harm to heritage assets
The Planning Inspector and Minister applied the wrong legal test to the issue of whether there will be 'substantial harm' to the heritage assets within the Gardens. The correct application of the test would have led inevitably to the conclusion that the harm to the significance of the Buxton Memorial was substantial and which would have led in turn to a very different test for the acceptability of the proposal.
Legal framework
a) In considering whether to grant planning permission the decision maker is 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 may possess (Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990). In this case, the Listed buildings include the Buxton Memorial (Grade II* listed building).
b) The significance of a heritage asset derives not only from an asset's physical presence, but also from its setting. Great weight should be given to the asset's conservation. The more important the asset, the greater the weight that should be given to conservation. Harm to the significance of a designated heritage asset requires clear and convincing justification (NPPF 199, 200).
c) Where potential harm to designated heritage assets is identified, it needs to be categorised as either 'less than substantial' harm or 'substantial' harm (which includes total loss) in order to identify which policies in the NPPF apply (NPPF 200-202). Accordingly, the key concept is whether the harm will be 'substantial'.
d) Substantial harm to grade II listed buildings or registered gardens (which would include Victoria Tower Gardens) should be exceptional. Substantial harm to assets of the highest significance, notably grade II* listed buildings (which will include the Buxton Memorial) should be wholly exceptional. For development that will lead to substantial harm to a designated heritage asset, consent should be refused unless it can be demonstrated that the substantial harm is necessary to achieve substantial public benefits that outweigh that harm (NPPF paras 200- 201).
e) Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal (NPPF 202).
f) Whether a proposal causes 'substantial harm' or 'less than substantial harm' will be 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. In particular; the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the "significance" of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker. This is 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 [2019] 1 P. & C.R. 5 per Lindblom LJ at [30]).
g) Unless there has been some clear error of law in the decision-maker's approach, the court should not intervene. This kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 (at paragraph 25) – that "the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly" (Catesby Estates Ltd v Steer [2019] 1 P. & C.R. 5 per Lindblom LJ at [30]).
Impact of the development on the historic environment – the Inspector's approach
"15.11 In addition to disagreements on the magnitude of harm to DHAs between the parties, there is also divergence in the methodology to be applied to its calibration. The Applicant relies on the definition of substantial harm (and the calibration of lesser harms that flow from it) set out in the Bedford case, broadly defined as a high test. WCC on the other hand (though not making express reference to it in written evidence) prefer to rely on the example of substantial harm set out in paragraph 018 of the PPG, a definition, as I understand it from their oral evidence, which sets the test at a lesser height. Although also reliant on the PPG definition (but again with no reference in written evidence) TIS.SVTG & LGT apply a further, different approach, based on consultancy-developed methodologies for characterising the magnitude of harm. Lastly, other parties present a similar Bedford-based approach to harm calibration, though conclude that the magnitude of harm, specifically with regard to VTG as an RPG, should be judged as substantial."
"15.12 My interpretation of this point, also bearing in mind paragraph 018 of the PPG has been formulated in light of the Bedford judgement, is that there is in fact little to call between both interpretations. Bedford turns on the requirement for the harm to be assessed as 'serious' (with significance needing to be very much, if not all, 'drained away') in order that it be deemed substantial. Alternatively, paragraph 018 indicates that an important consideration would be whether the adverse impact 'seriously' affects a key element of special interest. In both interpretations, it is the serious degree of harm to the asset's significance which is the key test. Moreover, in accordance with the logic of the Bedford argument, paragraph 018 explicitly acknowledges that substantial harm is a 'high test'. (emphasis added)
15.13 It is a high test indeed and I address these matters in detail below, calibrating the degree of harm identified to each DHA and the weight to be apportioned accordingly. The sum of such harms is then duly considered against any public benefits in the heritage balance anticipated in paragraphs 195 or 196 of the NPPF and, where appropriate, development plan policy." (emphasis added)
"The Setting of the Buxton Memorial (BM), a Grade II* Listed Building
15.65 There is no purpose in repeating the assessments of the BM's special architectural and historic interest and significance previously set out in evidence. It is listed at Grade II*, reflecting not only the conspicuous idiosyncratic flair of its designer, but also the nationally and internationally important events it memorialises. Despite its relocation from its intended place in Parliament Square, its present location in VTG, commemorating the courageous actions of lawmakers serving in the Palace of Westminster just to the north, remains an element of its special interest and significance.
15.66 Beyond these primary attributes, it is clear that the open spatial context to the memorial is a constituent of its significance. One element of this significance is the formal, though opportunistic perspective of Dean Stanley Street, where the monument may be viewed and appreciated in framed long perspective. But a more relevant contributor is the sense of space around the structure, allowing the viewer to at first perceive its distant presence, then be drawn by its 'fanciful' play of forms, detail and colour and then, when close, appreciate its memorial purpose and importance.
15.67 As set out above, the safeguarding of the setting of the BM would be most successfully mediated in views looking north along the Embankment path, and along the Embankment itself. Here, the monument would retain its pre-eminence within its wider context. However, from other points, most particularly when viewing the older monument from within the UKHMLC courtyard, or from other points in close proximity to it, its setting would visually become quickly congested. More specifically at this point the radically differing aesthetic moods of existing and proposed structures would collide in uneasy and discordant juxtaposition. And so here, decisively, the visual dominance of the UKHMLC would unsettle and crowd the BM, significantly infringing the viewer's opportunity to settle and contemplate its purpose and architecture, and thus fully appreciate its multi-facetted significance. The wider effects of this relationship on the character and special interest of the park are explored below. (15.91-15.93)
…
15.69 Notwithstanding these effects, the BM would remain physically unaffected by the proposal, and in this respect, its special architectural and historic interest would be preserved. That said, this outcome would fail to preserve the setting of the BM, a Grade II* listed building, in accordance with the expectations of the Act, such a consideration the Courts anticipate being given considerable importance and weight. It would also be contrary to those of paragraphs 193 and 194 of the NPPF, which anticipates great weight being given to the conservation of DHAs and their settings. Accounting for these considerations, I characterise this harm to the setting of the Grade II* memorial as being of great importance. Although this measure remains well below the threshold of substantial, I nevertheless afford this a measure of considerable weight in the heritage balance."
"15. 90 However, as I have determined above, despite the best efforts of the Applicant's multi-disciplinary design team, a successful relationship between the proposed structure and the BM has not been fully achieved. The setting of the Grade II* structure would not be preserved, and it is necessary to consider this again here to understand the effect this could have the significance of the RPG.
15. 91 It is clear to all that the present location of the BM, a relocation after its storage following removal from Parliament Square, has been chosen with some care and that its installation in 1957 represents one of the more prominent post-war interventions into the park. Arguably the location chosen on the axis of Dean Stanley Street at the end of an existing path within the park was one not too difficult to arrive at. After all, such axial devices have been used before in the park, for example in the initial siting of the Pankhurst Memorial on that of Great Peter Street immediately to the north. Such a location borrows the force and symmetry of existing views, whilst giving the monument sufficient space from the others already populating the park to the north (albeit that these had arrived at their respective locations only the year before).
15. 92 Despite the sense that the "fanciful" Gothic of Teulon's expressly architectural structure may have always felt more comfortable amid the hard urban enclosure of Parliament Square (it's intended initial location), it has nevertheless found its place within the park, a point of quiet remove, close to the Embankment and anchored by the axis of the path and streetscape to the west. The compelling logic of this location perhaps also explains a reticence about relocating the memorial as part of the present proposals. However, this too presents a no less difficult challenge: that of safeguarding the setting of the existing structure whilst delivering the UKHMLC to its design brief.
15.93 This reconciliation is nevertheless pursued through demarking the immediate context of the existing structure, scribing the enclosure of the proposed precinct around it and softening the visual interface between the two with planting. Whilst this would seek to establish an honest and inevitably intimate new relationship between the two, it would not be achieved convincingly. The exuberance of Teulon's structure would sit uncomfortably with the more sober and restrained modernity of the proposal. Moreover, the space such an expressive historic structure needs to be properly appreciated would be demonstrably curtailed. This sense of awkward stylistic juxtaposition and visual congestion would be most obviously understood from views within the UKHMLC complex, but would also have resonances in other views from the north down the Embankment path and the new sinuous route. Whilst these adverse effects would be partly mitigated by the more open and appreciative way the BM would be experienced when viewed from the Embankment walk, it would be impossible to escape the sense that the existing structure's open setting would be materially compromised by the presence of the UKHMLC. It is agreed that the special interest of the BM and the contribution its setting makes to its significance represents a constituent element of that of the park. It follows as a matter of logic therefore that any harm to that significance in turn affects that of the RPG.
15.94 All these matters in respect of VTG as an RPG require drawing together. I conclude that the effect of the proposed development on the significance of VTG, a Grade II RPG, can be best summarised as follows: the primary cause of identified harm to the special interest and significance of the RPG would result from the adverse effect the proposals would have on the setting of the BM. This is compounded, to a very limited degree, by the potential harm to a limited number of trees within the park. However, this degree of harm must also be considered in the context of the sum of the significance of the RPG as a whole. Accounting for this calculation, and also allowing for the range of positive factors that would enhance the character of VTG as an RPG, I conclude that the measure of harm overall would be moderate. Nevertheless, accounting for the expectations of paragraph 193 of the NPPF that great weight be afforded to the conservation of DHAs, I afford this harm considerable weight in the heritage balance."
"…In respect of each key DHA, the BM, the RPG and the WAPSCA, the modest degree of harm to trees has been added to the final sum of harm in each…in no case, does this aggregated degree of harm to each asset individually approach anything near the substantial threshold established by either Bedford or the PPG. Furthermore, even when the individual harms to DHAs are considered cumulatively, as required, they again still fall well below the substantial threshold established by Bedford and the PPG. Having fully considered such harms, I now turn to the public benefits." (IR15. 117) (emphasis added)
"15.187 Let us remember, for comparison, that substantial harm requires, in the case of Bedford, that the harm be assessed as 'serious' with significance needing to be very much, if not all, 'drained away'. Alternatively, paragraph 018 of the PPG indicates that an important consideration is whether the adverse impact would 'seriously' affect a key element of special interest. My reasoned judgement is that this bar has not been reached here and, contrary to the views of objecting parties, the harm, calibrated cumulatively at no greater than a medium degree above moderate, (still accounting for the great importance apportioned to the harm to the setting of the BM) would not come close to substantial for any asset, by either measure."
(emphasis added)
44. Finally, he pointed the Court to IR 15.88 in the context of the wider analysis of harm to the Registered Park and Garden) and to the Inspector's observation that "claims that such effects…would in fact vitiate or substantially drain away the significance of the RPG, even justifying deregistration, are in my view considerably overstated…" as further evidence in this regard.
"74 The same can be said of the policies in paragraphs 195 and 196 of the NPPF, which refer to the concepts of "substantial harm" and "less than substantial harm" to a "designated heritage asset". What amounts to "substantial harm" or "less than substantial harm" in a particular case will always depend on the circumstances. Whether there will be such "harm", and, if so, whether it will be "substantial", are matters of fact and planning judgment. The NPPF does not direct the decision-maker to adopt any specific approach to identifying "harm" or gauging its extent. It distinguishes the approach required in cases of "substantial harm … (or total loss of significance …)" (paragraph 195) from that required in cases of "less than substantial harm" (paragraph 196). But the decision-maker is not told how to assess what the "harm" to the heritage asset will be, or what should be taken into account in that exercise or excluded. The policy is in general terms. There is no one approach, suitable for every proposal affecting a "designated heritage asset" or its setting."
50. In Bedford, the question as to whether the Inspector had misconstrued or misapplied the policy concept of substantial harm was in issue before the Court ([11]). Jay J saw the epithets "substantial" and "serious" as essentially synonymous in the policy context: see [21] and [26]. In [25], he observed that the decision maker was looking for – "… an impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced".
24 "…What the inspector was saying was that for harm to be substantial, the impact on significance was required to be serious such that very much, if not all, of the significance was drained away.
25 Plainly in the context of physical harm, this would apply in the case of demolition or destruction, being a case of total loss. It would also apply to a case of serious damage to the structure of the building. In the context of non-physical or indirect harm, the yardstick was effectively the same. One was looking for an impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced.
26 …I have considered whether the formulation "something approaching demolition or destruction" is putting the matter too high in any event. "Substantial" and "serious" may be regarded as interchangeable adjectives in this context, but does the phrase "something approaching demolition or destruction" add a further layer of seriousness as it were? The answer in my judgment is that it may do, but it does not necessarily. All would depend on how the inspector interpreted and applied the adjectival phrase "something approaching". It is somewhat flexible in its import. I am not persuaded that the inspector erred in this respect."
52. It is plain that Jay J saw the Inspector's approach as essentially the same as the approach that he (Jay J) endorsed in [25] as a correct basis for addressing the question, i.e. a decision maker would properly both interpret and apply the concept of substantial harm in the NPPF, if s/he assessed whether the impact of the proposed development was sufficiently serious in its effect that the significance of the designated heritage asset, including the ability to appreciate that asset in its setting, was (if not vitiated altogether) at least very much reduced. Jay J considered the reference to significance being "very much …drained away" as no more than an alternative, metaphorical means of expressing the concept of substantial harm. In considering that "substantial' and 'serious' may be regarded as interchangeable adjectives in this context" [26], his judgment is consistent with the advice in the Planning Policy Guidance that, when considering whether or not any harm is "substantial", an important consideration would be whether the adverse impact seriously affects a key element of special architectural or historic interest
Ground 3: The London County Council (Improvements) Act, 1900
A failure to address the provisions of the London County Council (Improvements) Act 1900, which creates a straightforward prohibition on using the Gardens for the provision of the Memorial in the manner proposed.
The legal principles of statutory construction
The wording of the Act
"An Act to empower the London County Council to make an extension of the Thames Embankment and a new street and improvements at Westminster to widen Mare Street Hackney and to make other street improvements and works in the administrative county of London and for other purposes."
"1) Thames Embankment Extension and Improvements at Westminster
An embankment wall and an embankment on the foreshore of the River Thames in continuation of the existing river embankment south of the Houses of Parliament commencing at the present termination of the existing embankment at the south eastern comer of the Victoria Towne Gardens and terminating at the northern side of Lambeth Bridge
A new street consisting in parts of widening of Abingdon Street and Millbank Street commencing in Abingdon Street opposite or nearly opposite the entrance to the Peers Office Court of the House of Lords and terminating at the western end of Lambeth Bridge"
"8. Whereas the works authorised by this Act under the heading "Thames Embankment Extension and Improvements at Westminster" (herein-after referred to as "the Westminster improvement") will involve the occupation of certain lands vested in Her Majesty or vested in or under the control of the Commissioners of Works and will also necessitate some interference with the garden adjoining the Houses of Parliament known as the Victoria Tower Garden:
……
And whereas it has been agreed between the Commissioners of Works and the Council that the said works shall only be executed subject to and in accordance with the provisions herein-after set forth:
And whereas for the purposes of the Act a plan has been prepared (in the section referred to as "the signed plan") which for purposes of identification has been signed by the Right Honourable Lord Brougham and Vaux the Chairman of the Committee of the House of Lords to whom the Bill for this Act was referred a copy of which plan has been deposited in the Office of the Clerks of Parliaments."
(1) "The lands lying to the eastward of the new street described in this Act as consisting in part of widenings of Abingdon Street and Millbank Street which is in this section called "the new street" and between the said street and the new embankment wall shall 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 subject to such byelaws and regulations as the Commissioners of Works may determine:
(2) The Council shall construct the new embankment wall to the satisfaction of and in accordance with plans approved by the First Commissioner of Works:
(3) The Council shall to the satisfaction of the First Commissioner of Works clear and make up to a level suitable to the laying out of the garden the surface of the land between the new street and the new embankment wall to be laid out as a garden (which land is hereinafter referred to as "the new garden land") and in default of their doing so the Commissioners of Works may do all work necessary for that purpose and all costs incurred by the Commissioners in relation thereto shall be repaid to the Commissioners by the Council But nothing in this section shall authorise the Council to remove any trees now standing within the garden:
(4) The Council shall do all things necessary to vest the new garden land in the Commissioners:
(5) As soon as that land is so vested in the Commissioners of Works the Commissioners shall remove the existing railings and kerb on the west side of Victoria Tower Garden southward of a point thirty yards southward of the centre of the existing entrance to the Victoria Tower Garden opposite Great College Street and shall erect along the eastern side of the new street southward of the said point from which the existing railings and kerb are to be removed a kerb and railings of a suitable and for that purpose may if they think fit use the existing kerb and railings:
(6) The Commissioners of Works shall lay out as a garden the new garden land so vested in them and may also make such alterations in the paths bedding and turfing of the existing Victoria Tower Garden (in so far as any portion of it is not thrown into the new street) as they may think necessary to secure uniformity of design in the Victoria Tower Garden as extended under the provisions of this section:
(7) The Council shall pay to the Commissioners of Works the cost of the works to be executed by the Commissioners in respect of the removal and erection of railings and kerb and of altering and laying out the garden as before in this section mentioned Provided that the sum so payable shall not exceed five thousand pounds:
(8) The Commissioners shall maintain the garden so laid out and the embankment wall and kerb and railings enclosing it:"
(emphasis added)
"(15) The Council shall not under the powers of this Act alter the level of any streets or places which are under the charge management or control of the Commissioners of Works without having previously obtained the consent in writing of the First Commissioner to such alteration and the Council shall bear the expense of adapting or adjusting the said streets or places to the requirements of the improvements:
(16) No building fronting the new street at the junction therewith of Great College Street shall be so erected that the main front wall at the north-east corner thereof shall be placed nearer than 80 feet to the line of the existing railings on the west side of the Victoria Tower Garden:
(17) Subject to the provisions of any future Act of Parliament with reference to the reconstruction of Lambeth Bridge and the approaches thereto the frontage of the buildings at the termination of the new street on the western side shall not project in front of the line marked H I on the signed plan:
(18) No new or additional building (including any addition to the height of a building) shall be erected on the west side of the new street other than buildings on the property of Her Majesty or the Commissioners of Works until the elevations and exterior design of such buildings have been approved by the Council and as regards buildings lying to the north of the line marked F G on the signed plan also by the First Commissioner of Works."
Submissions of the parties
Analysis
i) Interpretation of Section 8 of the Act
- Section 8(1) provides in mandatory terms that the land shall be laid out and maintained for use as a garden for the public and integral part of Victoria Gardens.
- Section 8(3) provides for London County Council to carry out the clearance and levelling works to the satisfaction of the Commissioner of Works and to vest the land in the Commissioners.
- Section 8(6) provides for the Commissioners to lay the land out as a garden and do related works to secure uniformity of design in the extended Victoria Tower Gardens and
- Section 8(8) provides for the Commissioners to maintain the garden so laid out.
71. I am of the view that the wording of Section 8(1) "The lands…shall be laid out and maintained…for use as a garden open to the public" is to be read as a continuing obligation to keep the land in use as a public garden. Mr Mould relied on the words 'in manner herein-after provided' in section 8(1) ("The lands …shall be laid out and maintained in manner herein-after provided for use as a garden open to the public"). He submitted that the words look forward to s.8(8) of the 1900 Act and the maintenance obligation therein stated ("The Commissioners shall maintain the garden so laid out and the embankment wall and kerb and railings enclosing it."). Thus, he submitted, the statutory objective in s. 8(1) was achieved when Victoria Tower Gardens was laid out and vested in the Commissioners to maintain. However, in my judgment, significance is to be attached to the use of 'maintained' in Section 8(1). Section 8(1) lays down the purpose and object of the section whilst subsections (2) – (8) contain the detail. It is not clear why section 8(1) which sets out the statutory purpose of the section would need to refer to 'maintained' if the word is to read as the relatively trivial obligation to keep the garden in good repair or tidy. It would suffice for 'maintained' to appear in section 8(8) alone. Further, the language in section 8(8) is similar to section 8(1) and the latter refers to 'hereinafter provided'. In my view the language of both section 8(1) and 8(8) is to the same effect – the land must be laid out and thereafter kept as a public garden.
75. Mr Mould relied on the reference in Section 8(1) to "subject to such byelaws and regulations as the Commissioner of Works may determine" ( "the land …..shall be laid out and maintained in manner herein-after provided for use as a garden open to the public…subject to such byelaws and regulations as the Commissioners of Works may determine") to submit that future regulation of the Garden is left to the good sense of the Commissioners and no further provision needed to be made for the future or their protection. However, on the basis of the wording of section 8(1), I am of the view that the ordinary and natural reading is that the byelaws and regulations are intended to regulate the detail of the overall purpose, which is the provision of a garden for public use.
ii) Conclusion on the construction of section 8 of the Act
1) On its ordinary and natural meaning, Section 8(1) of the 1900 Act imposes 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 is 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.
2) Section 8(8) cannot be read as only covering repair or upkeep. The language is very similar to s.8(1) and the latter says in manner-hereinafter provided. Sections 8(1) and 8(8) are both to the same effect. They require the land to be laid out and thereafter kept as public gardens.
3) The detailed prohibitions in Section 8(15)-(18) do not detract from the substantive obligation in section 8(1). Sections 8(15) - (18) simply impose controls on works that could be carried out (or were not the subject of any absolute prohibition).
4) The repeal of the larger part of the 1900 Act, save for the prospective and continuing obligations in ss. 7-9, confirms the enduring nature of the obligations imposed by them.
5) As was common ground by the end of the hearing, the advent of the modern planning system has no bearing on the obligations in the 1900 Act.
iii) The pre-legislative material
"… the bill of the syndicate came on for discussion in the House of Commons. It was strongly opposed by representatives of the Council. Great objection was raised in the debate to the proposal in the bill to rebuild on the area to be cleared of wharves and buildings between Millbank-street and the river. It was contended that this should be laid out as an extension of the Victoria-tower-garden. The representatives of the Council, while not [illegible but thought to be 'not'] pledging it to any such scheme undertook that a scheme should be presented for the widening of Millbank-street and the embankment of the river, and that the Council would carefully consider whether it would not be possible to lay out the land between the street and the river as a garden. The bill was rejected by a large majority. It is to be feared, however, that, in the event of the Council not proposing a scheme of its own, the syndicate's scheme will be revived."
(Further Report of the County Council Improvements Committee, 25th May and 15th June 1898).
"Thames-embankment extension at Westminster
The Council, on 29th March, 1898, passed the following resolution – "That it be referred to the Improvements Committee to prepare and bring up to the Council, at the earliest date practicable a scheme for the embankment of the Thames from the Victoria-tower-garden to Lambeth-bridge, including the widening of Millbank-street, and the utilisation of any surplus land which remains after the carrying out of the improvement."
(Further Report of the Improvements Committee, 25th May and 15th June 1898)
"In pursuance of this reference we have carefully considered a scheme… We also assumed for the purpose of the scheme that all the houses and wharfs east of Millbank-street would be removed, and that the existing garden to the south of the Houses or Parliament would be extended to Lambeth-bridge. If such a scheme were undertaken, Millbank-street being increased in width to 60 feet, the estimated net cost of the necessary property, after deducting recoupment, would be £601,500. To this must be added the cost of constructing the embankment, and making up the widened road, such cost being estimated at £41,000. The total net cost of the scheme is therefore estimated at £642,500.
If in lieu of laying out the land to the east of the street as a garden, the site should be let on building leases, the new buildings to have a frontage to the river and a road between them and the river, the recoupment would be enormously greater and the estimated net cost of the scheme would then be no more than £71,900. The difference between this and the £642,500 (i.e., £570,600) represents the cost to the Council of laying out the land east of Millbank-street as a garden. The area of this land is some 184,000 square feet, or about 4 acres. While recognising the importance of such an improvement in throwing open Millbank-street to the river and extending the public garden, we feel that having regard to other public improvements required in all parts of London, the outlay of £570,600 on the acquisition of about 4 acres of garden could not be justified unless Parliament should be prepared to make a large contribution towards the cost, in view of the importance of improving the access to the Houses of Parliament from the south, and of removing further from them the buildings in Millbank-street."
(Further Report of the Improvements Committee, 25th May and 15th June 1898,
"… the chairman of the Improvements Committee accepted, and the Council adopted, a further amendment moved by Sir Arthur Arnold and seconded by Mr Verney, to provide that Millbank-street should be widened to either 70 or 80 feet, and substituting the words "deal with" for the words "lay out as a garden" in recommendation (a)."
(Improvements Committee Adjourned Report, 13 March 1900,
"In the discussion in the Council the opinion was expressed by some members that the Government ought to contribute more to the whole scheme, and we understood that the object of Sir Arthur Arnold's amendment was to assist us in our further negotiations with the Government and the local authority. When the chairman of the Committee accepted the amendment in the Council he stated that the Chancellor of the Exchequer considered that the Government was not interested in the extension of the garden, but the chairman expressed his willingness to accept the amendment which would enable further negotiations to be opened up with the Government."
(Improvements Committee Adjourned Report, 13 March 1900, (emphasis added).
"Resolved – That, subject to the Council being relieved from widening Abingdon-street, and subject to a contribution by the local authority of £100,000, the Council do apply to Parliament in the session of 1900 for powers to embank the Thames from Victoria-tower-garden to Lambeth-bridge, to widen Millbank-street to 70 or 80 feet, to acquire and deal with the land between the river and Millbank-street, and to acquire and deal with the property between Millbank-street and Tufton-street, in general accordance with the scheme shown on the plan approved by the Improvements Committee on 7th June, 1899."
(London County Council Minutes, 4 July 1899) (emphasis added)
"Resolved – That this Vestry, recognising…the Westminster Improvement Scheme communicated to them by the London County Council… (3) assent to a contribution of £100,000 towards the Westminster Improvement Scheme of the London County Council, subject to the understanding:…that the space on the East of Millbank-street from the Victoria Tower-garden to Lambeth-bridge be converted into a public garden."
(Westminster Vestry minutes, 12 July 1899) (emphasis added)
"Our negotiations with the Government have been somewhat protracted, but we are glad to be in a position to report that by slightly amending the original plan we have obtained the approval of the Government to the scheme, and an undertaking on their part to assist with the Abingdon-street portion. The amendment in question consists chiefly in the alteration of the line of the proposed street. By somewhat altering the line so as to bring the street nearer the river than was originally proposed, a larger amount of land will be available for the purpose of recoupment, and the cost of the scheme to the Council will be accordingly reduced. This amended plan involves the acquisition for the purpose of addition to the public way, of a narrow strip of the existing Victoria-tower-gardens. For the scheme to be complete it is also necessary that portions of the sites of five houses in Abingdon-street, four of which belong to the Government, should be given up, and we have now received a letter from the Lords Commissioner of HM Treasury approving this amended scheme."
(Report of the Improvements Committee, 11 October 1899) (emphasis added).
"I am to mention, however, that the draft Bill does not fully or accurately provide for carrying out the arrangement provisionally agreed to by the First Commissioner and the Treasury. In particular, the First Commissioner notices that it is not specified that there shall be a Public Garden, to be formed and maintained by the Council, between the east side of the diverted roadway and the River, in continuation of the Victoria Tower Garden, down to Lambeth Bridge. This public benefit was, in the mind of the First Commissioner, one of the principal considerations in favour of giving up a strip of the existing garden."
(Letter on behalf of the First Commissioner of Works to the LCC, 14 December 1899) (emphasis added)
"The Bill should provide, as part of the improvement, for a continuation of the Ornamental Garden, called the Victoria Tower Garden, as far south as Lambeth Bridge, over the space between the new roadway of Millbank Street and the Embankment. This public benefit, as in the first place proposed to the First Commissioner, was one of the principal considerations in his mind in favour of giving up a strip of the existing garden, to maintain which as a public recreation ground the Government are pledged by an agreement with the late Rt. Hon. W.H. Smith M.P. who contributed a great part of the cost of laying it out."
"As regards the future maintenance of the garden, the First Commissioner considers it essential, in order to ensure uniformity in appearance and regulation between the present garden and its continuation, that both should be under one management… to be maintained by this Board as a garden for public recreation".
(First Commissioner of Works' letter dated 23 February 1900)
(emphasis added).
"(1) The First Commissioner contends that the Bill should make it clear that the land between the new road of Millbank Street and the Embankment is to be kept as a garden and is not to be built upon as this was the understanding upon which he agreed to give up the strip of the Victoria Tower Garden.
The Improvements Committee fully concur with the insertion in the Bill of such a clause, particularly as the Council, on 4th July and 24th October, 1899, decided that the application to Parliament should be made in accordance with the plan submitted to the Council on those dates. On each occasion the plan shewed the land between the new Millbank Street and the river as intended to be kept as a garden. This, in fact, formed the basis of the negotiations with the Government and with the local authority in regard to the improvement, and a condition attached to the offer of the local authority to contribute £100,000 towards the cost of the scheme."
(Minutes of Improvements Committee Meeting, 25 February 1900) (emphasis added)
"From what we have stated it will be seen that the amended scheme approved by the Council was based on the laying out of the land as a garden, that the Government contribution of the strip of the Victoria-tower-garden and the five houses in Abingdon-street was on the same basis, and that the Westminster Vestry made it a condition of their promise to contribute the £100,000. It could not for a moment be contended that the Council would be justified in claiming from the Government the concession of this strip of the Victoria-tower-garden and the five houses in Abingdon-street, leaving it open to the Council either to lay out the land between the road and the river as a garden or to build upon it at its discretion. It is certain that a scheme to build on the land would not obtain the sanction of Parliament, as the scheme introduced by the syndicate was rejected because it was proposed to so deal with the land.
We have accordingly expressed to the Parliamentary Committee our unanimous opinion that the land should be kept as a garden, and we have asked that Committee to insert the necessary clauses in the Bill.
…
The scheme for which parliamentary sanction is sought, however, will, after deducting the contribution from the local authority and allowing for amounts to be received by the levying of an improvement charge, cost the Council only about £300,000. For this sum a great public improvement will be effected, completing the most important of the very few remaining links in the embankment of the Thames from Blackfriars to Chelsea, widening the approach to the Houses of Parliament and Lambeth-bridge, and getting rid of the reproach which Millbank-street now presents, and greatly improving the district between this street and St. John's Church. We feel therefore that we are fully justified in asking the Parliamentary Committee to advise the Council to insert the necessary clauses in the bill making definite provision for the land between the new Millbank-street and the river being kept as a garden for the use of the public for ever."
(Report of the Improvements Committee, 13 March 1900)
(emphasis added)
"THE FIRST COMMISSIONER OF WORKS
(Mr. AKERS DOUGLAS (Kent, St. Augustine's)
I desire to state to the House the attitude of the Government with reference to this measure. We recognise that it aims at a great improvement, but at the same time there are some important Amendments which we must insist on having introduced into the Bill. One of the Amendments is that the whole space between the proposed new road and the river should be laid out in continuation of the Victoria Tower Gardens. There is really no difference in principle between the Government and the County Council as regards the nature of the Amendments. The County Council and the Government would be sorry to see the improvement scheme checked, and I do not propose to object to the Second Reading, but I reserve to myself the right to ask the House to reject the Bill on the Third Reading unless the Amendments are inserted."
(Hansard, Volume 79, debated on 1 March 1900) (emphasis added).
"The Council considered the following recommendation in the report brought upon 6th March –
London County Council (Improvements) Bill – Westminster improvement
2 – That the Parliamentary Committee be authorised to insert in the London County Council (Improvements) Bill a clause to provide that the land between the new Millbank-street to be formed in connection with the Westminster improvement, and the embankment, shall be laid out as a garden. [Adopted]"
(London County Council Minutes, 20 March 1900)
"Resolved – That the Council do proceed with the Improvements Bill, subject to the Select Committee of the House of Lords agreeing that the new street from the southern end of Abingdon-street to Lambeth-bridge shall be carried out in general accordance with the route shown upon the plan approved by the Improvements Committee on 7th June, 1899, sanctioned by the Council on 4th July, 1899, and as shown by blue lines upon the cartoon plan now submitted to the Council, including the widening of the northern end of Abingdon-street as already arranged."
(Special Report of the Improvements Committee, 24 July 1900,
iv) Analysis of the historical context
"We feel therefore that we are fully justified in asking the Parliamentary Committee to advise the Council to insert the necessary clauses in the bill making definite provision for the land between the new Millbank-street and the river being kept as a garden for the use of the public for ever." (emphasis added)
The 1900 Act as a material consideration
"Timing
15.170 The HMC report is entitled 'Britain's Promise to Remember'. Now, 75 years after the liberation of the camps, for many in the Jewish community and most poignantly for survivors themselves, this proposal heralds a commitment by the British Government to fulfil the recommendations of the HMC. As such, this would represent not only a commitment to honour the memory of the millions lost to the Holocaust, but also a testament to the courage and resilience of those who survived it. This is a matter of importance and, though unusual in planning terms, it is of material weight that such a monument should be raised within the lifetime of at least some of those survivors so that this commitment is seen to be honoured in their living memory.
15.171 In the event the Minister was to refuse permission for the UKHMLC in VTG, as BD points out, this would, in all probability, not be the end of the project. It is suggested that this would be a "beneficial outcome", and that it would probably be sited "at the Imperial War Museum or some other more suitable site". This may or may not be the case. What is clear however is that the detailed process of selection, evaluation, preparation, design, consultation and formal consideration of a new proposal would begin anew, with all the gestation time this implies. If the programme for the current project is applied, this suggests approximately five years of further work. We know that a number of survivors who saw the outcome of the HMC will not have lived long enough to learn of the outcome of this Inquiry. Another five years of renewed planning would only but add to their number.
15.172 Whilst the matter of timing alone would not be of determinative weight, any such new scheme and its location must after all achieve HMC expectations and meet development plan and statutory planning requirements. But achieving a memorial within the lifetime of survivors, so seeking to honour the living as well as the dead, has a resounding moral importance that can legitimately, in my view, be considered a material consideration and a public benefit of great importance, meriting considerable weight in the planning balance in this case."
"….All substantive matters relating to the planning application will be for the appointed Inspector to consider and to report to the Minister of State in accordance with the procedure laid down by The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 ("the Inquiries Procedure Rules"). Those matters include section 8(1) of the 1900 Act, insofar as it is engaged by the planning application. The Inspector must consider all material considerations, including any relevant legislation, in preparing the inquiry report under rule 17 of the Inquiries Procedure Rules. All parties to the inquiry will have the opportunity to make submissions on those matters to the Inspector at the inquiry."
(pre-action correspondence dated 18 May 2020)
Raising a new point on appeal
"I do not think that there can be any general rule that a party to a planning appeal decision is to be prevented from raising in a challenge to that decision an argument that was not advanced in representations made on the appeal. If the inspector has omitted a material consideration which could have affected his decision the decision may on that account be rendered unlawful, notwithstanding that the matter was not raised in the representations…"
"In an appeal against the refusal of planning permission…the issue, defined by the appeal, is whether planning permission should be granted; and the test of materiality is essentially that of relevance (see Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 at 671 (j) - 678 (b))."
"the grounds of challenge were set out in the notice of motion. In the course of the hearing, Mr Harper sought permission to amend the notice by adding additional grounds. There was no objection to certain of the proposed additions by Mr David Elvin for the First Respondent and Mr David Holgate QC for the Second Respondent, and I allowed those. I refused permission for the other amendments because they sought to advance arguments that could have been raised, but were not raised, at the inquiry. If they had been raised, the Second Respondent would almost certainly have wished to call further evidence and/or have advanced arguments to deal with them. I will say what the points were later. It is sufficient for me to say now that I did not consider the interests of justice required that the council should be allowed to pursue them on this application" (671 at g) -h))
"77 In an application for statutory review of a planning decision there is no absolute bar on the raising of a point which was not taken before the inspector or decision-maker. But it is necessary to examine the nature of the new point sought to be raised in the context of the process which was followed up to the decision challenged to see whether the claimant should be allowed to argue it. For example, one factor which weighs strongly against allowing a new point to be argued in the High Court is that if it had been raised in the earlier inquiry or appeal process, it would have been necessary for further evidence to be produced and/or additional factual findings or judgments to be made by the inspector, or alternatively participants would have had the opportunity to adduce evidence or make submissions (or the inspector might have called for more information…" (Holgate J)
"These changes would breach the condition of the donation of £1,000 made by the benefactor W H Smith in 1879, that the land was kept a made by the benefactor W H Smith in 1879, that the land was kept as a garden for the use of the inhabitants of Westminster. It would be in direct contravention of the 1900 Act under which the land was to be used as a park in perpetuity. (12.15)"
"Building on VTG as proposed would be illegal under the Act by which the southern part of it was acquired, as the Act requires that the land be maintained as 'a garden open to the public' (London County Council (Improvements) Act 1900, section 8, still in force). The Government was apparently unaware of this until it was brought to its attention in March 2019 (parliamentary answer 229633). This may not be in strict terms a planning matter, but it provides evidence of an inadequately prepared scheme."
"…there is an important legal impediment which prevents the proposal proceeding at all…
Section 8 of the London County Council (Improvements) Act 1900, the statute empowering the LCC to create the southern part of VTG and to pass it to (what was then) the Commissioners of Works, requires that the area in which the Memorial is proposed to be built "shall be laid out and maintained…for use as a garden open to the public and as an integral part of the existing Victoria Tower Garden". We have taken advice form counsel Mr Thomas Seymour of Wilberforce Chambers. He has reviewed the proposal and plans and confirms that developing a substantial part of the land as a Memorial and Learning Centre would, unarguably, be in breach of that provision.
It would accordingly be unlawful for the Secretary of State, who has ministerial responsibility for the Holocaust Memorial project, to seek to proceed with a proposal in breach of a statutory prohibition. It would likewise be unlawful for the Secretary of State for Culture Media and Sport, to whom title to VTG has passed from the Commissioners of Works, and to whom we are copying this letter, to permit the development to proceed."
"We are of the view that the proposal for a Holocaust Memorial and Learning Centre compiles with Section 8 of the London County Council (Improvements) Act 1990 and will not be withdrawing the planning application..."
"On 31 July 2019 Richard Buxton Solicitors (RB), representing one of the other Rule 6 parties, wrote to the Secretary of State and MHCLG pointing out that the building of the VTG Proposal would infringe the terms of the London County Council (Improvements) Act, 1900, which requires the preservation of VTG. MHCLG replied by stating that it would comply with the relevant section of that Act"
"The 1900 Act
17. The lawfulness of the decision to call in the planning application is unaffected by section 8(1) of the London County Council (Improvement) Act 1900 ("the 1900 Act"). It is a decision as to the statutory procedure to be followed for the purpose of determining the planning application under Part 3 of the Act. It does not engage section 8(1) of the 1900 Act. Your proposed claim, if pursued, will not place "issues relating to the VTG proposal" before the Court. All substantive matters relating to the planning application will be for the appointed Inspector to consider and to report to the Minister of State in accordance with the procedure laid down by The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 ("the Inquiries Procedure Rules"). Those matters include section 8(1) of the 1900 Act, insofar as it is engaged by the planning application. The Inspector must consider all material considerations, including any relevant legislation, in preparing the inquiry report under rule 17 of the Inquiries Procedure Rules. All parties to the inquiry will have the opportunity to make submissions on those matters to the Inspector at the inquiry."
"Question: To ask the Secretary of State for Housing, Communities and Local Government, on what date (a) the Government and (b) the UK Holocaust Memorial Foundation were first informed about the potential application of section 8 (1) of the London County Council (Improvements) Act 1900 to the proposed location of the Holocaust Learning Centre. (229633)
Answer, 14 March 2019: Mrs Heather Wheeler: The Environmental Statement (Volume 3) submitted with the planning documents in December 2018 identifies that proposals for enlarging Victoria Tower Gardens were adopted under the London County Council (Improvements) Act 1900."
"Speaking in general terms, and recognising there are always going to be exceptional situations, it seems to me that, although this court should be cautious to avoid encouraging points to be taken for the first time in this court, it is perfectly proper for this court, as a matter of discretion, to allow points to be argued before us, if the material is before this court to enable those matters properly to be considered. In relation to the point which Mr Horton wishes to raise on this particular appeal, which was not raised in the court below, that appears to me to be the position. It also seems to me desirable that we should express an opinion upon the point because, if we do not do so, it will leave an area of uncertainty in relation to planning matters of this nature which would be undesirable, because there are likely to be other appeals where the same point will arise."
Ground 4: error of law in relation to alternative sites
The Inspector erred in law in considering that in order to attract significant weight, the merits of any alternatives must be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative.
The relevant legal principles
"It is reasonable to suggest that if there are alternative locations for a proposal which would avoid an environmental cost, then these should be taken into account when determining the acceptability or otherwise of the proposal at hand. This is a particularly attractive prospect if it is held that there are viable alternatives sites that could accommodate the proposal without attendant harm." (IR15.164)
"But such an approach has to be treated with caution. Whilst (as the Courts have determined) the desirability of having alternative proposals before the Inquiry may be "relevant and indeed necessary", (though not always essential), in order that it may garner significant weight, the merits of such alternatives must, logically, be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative. 501 [8.62, 9.65]"
"52. […] There is no "one size fits all" rule. The starting point must be the extent of the harm in planning terms (conflict with policy etc.) that would be caused by the application. If little or no harm would be caused by granting permission there would be no need to consider whether the harm (or the lack of it) might be avoided. The less the harm the more likely it would be (all other things being equal) that the local planning authority would need to be thoroughly persuaded of the merits of avoiding or reducing it by adopting an alternative scheme. At the other end of the spectrum, if a local planning authority considered that a proposed development would do really serious harm it would be entitled to refuse planning permission if it had not been persuaded by the applicant that there was no possibility, whether by adopting an alternative scheme, or otherwise, of avoiding or reducing that harm.
53. Where any particular application falls within this spectrum; whether there is a need to consider the possibility of avoiding or reducing the planning harm that would be caused by a particular proposal; and if so, how far evidence in support of that possibility, or the lack of it, should have been worked up in detail by the objectors or the applicant for permission; are all matters of planning judgment for the local planning authority. […]"
The Inspector's approach to alternatives
"15.154 The precise process by which VTG became the preferred and definitive location for the UKHMLC is not clear. The apparent realisation of its potential as such a site has subsequently been framed as a "moment of genius" (by those on both sides of the argument). But whether bathetic or not, such a choice may well have reasonably been driven by a conclusion that the sites hitherto identified were not adequately meeting the HMC report recommendation requirements, and that further
alternatives were necessary.
15.155 What is clear though is how closely the VTG site meets the core expectations of the recommendation…
by virtue of this aesthetic and semiotic boldness combined with its location, the proposal would make a clear and unequivocal statement about the degree of importance we as a nation place on preserving the memory of the Holocaust. A statement moreover that would readily serve as a focal point for its national commemoration. Expressing these attributes, it would indeed stand as an affirmation of the universal human values, and so those also, unashamedly, of British society.
15.156 Such questions of location do however beg the wider questions as to why we raise such memoria, and why we put them where we do. The diverse monumental denizens of Whitehall, Parliament Square, and VTG itself, are all witness to significant national and international events, people or causes. All too, seem held in space by the gravitational mass of the Palace of Westminster, for so long the very epicentre of national and global power. Even to one familiar with these places, the passing observer is compelled to ask of each memorial, "why are you here?" We also know that there are great sensitivities around the relocation of these memoria, such as those to the Pankhursts and to Buxton.
…
15.158… If, as the clear greater majority of those offering a view at the Inquiry and more widely, believe that the commemoration of the Holocaust (and learning of its horrors and contemporary legacy) is profoundly significant, then it follows that the UKHMLC should be located in a place of primary national and indeed international importance. So, locating the combined structure in central London, the nation's capital, adjacent to the Palace of Westminster, the very epicentre of national law-making, would have an inescapable resonance. It should be recalled that this semiotic appeal was not lost on the HMC, who identified one of the merits of the Millbank site as being its relative proximity to the Houses of Parliament. It should also be recalled that the HMC also concluded that the IWM was also very highly regarded, being within easy reach of Westminster. Moreover, if one accepts the primacy of location in recognising the importance of the Holocaust, it follows that the selection of a less significant location connotes a lesser degree of significance to the purpose of that commemoration. (15.158)
15.159 In addition, the juxtaposition of the UKHMLC with the Palace of Westminster as an ever-present reminder to lawmakers of the dangers of complacency may be considered trite. But as a lesson to nation and Parliament that, in exploring Britain's relationship with the Holocaust, reflecting on its finer moments, its failures, and the terrible consequences of opportunities not taken, honestly and candidly, would remind us of the fallibility of democracy's assumed righteousness, and our responsibility, if not duty, to others in safeguarding it. Such an approach underscores the direct connection between action, or the lack of it in Parliament, and the consequence in relation to the unfolding cataclysm of the Holocaust. The UKHMLC would make tangible that linkage, amplifying the commemorative and cognitive purpose of the combined structure. Lastly, the idea of the Memorial offering a sense of commemorative citizenship (to those from which it was robbed), a symbol that says "British Jews (and others of minority ethnicity and sexuality) are British; your history is our history; your security is a British concern, you belong here", has a very powerful resonance, and one that should indeed be heard in the context of the Palace of Westminster. 15.159
15.161 In broader locational terms therefore, the proposals would fulfil the expectations of the recommendation of the HMC. More specifically, the location next to the Palace of Westminster not only has a resonance with a key positive attribute of the Millbank and IWM sites, it would offer a powerful associative message in itself, which is consistent with that of the memoria of its immediate and wider context. As a measure of the importance attached to the commemorative task it has, and for all the reasons set out above, I conclude that the location of the UKHMLC adjacent to the Palace of Westminster can rightly be considered a public benefit of great importance, meriting considerable weight in the heritage and planning balance. (15.161)"
"15.163 the belief that if the proposals were moved to another location, specifically the IWM, the clouds of such controversy would lift and a universal consensus on the merits of that location be achieved is, to say the least, optimistic. From what I heard at the Inquiry and saw during my site visit, the debate over the merits of that location, the relationship of its purpose to its host, and the environmental and social costs it might entail, would still prevail. Nevertheless, a consideration of such alternative sites is reasonable and justified in light of the matters raised at the Inquiry." (IR 15.163) (emphasis added)
"It is reasonable to suggest that if there are alternative locations for a proposal which would avoid an environmental cost, then these should be taken into account when determining the acceptability or otherwise of the proposal at hand. This is a particularly attractive prospect if it is held that there are viable alternatives sites that could accommodate the proposal without attendant harm." "But such an approach has to be treated with caution. Whilst (as the Courts have determined) the desirability of having alternative proposals before the Inquiry may be "relevant and indeed necessary", (though not always essential), in order that it may garner significant weight, the merits of such alternatives must, logically, be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative. 501 [8.62, 9.65]"
141. Having identified the three primary alternative sites (IR 15.165) he narrowed his focus to the site at the Imperial War Museum stating that it is on this site "that the hopes of those opposing the VTG proposal are focused as a credible alternative worthy of weight in the planning balance… Such an interest is not without justification" (IR 15.166). He went on to address the relative merits and disadvantages of the Imperial War Museum site. As to its merits: the Imperial War Museum site was one of the sites identified in the Holocaust Memorial Commission report; there are obvious synergies with the existing and proposed Holocaust content of the museum; it is an institution familiar with handling large numbers of people; it has a landscape context that could accommodate a combined Memorial and Learning Centre, and there is a provisional scheme by a distinguished architectural practice testing its feasibility, albeit this is limited in scope. Moreover, the Holocaust Memorial Commission saw the advantage of the site, as previously stated, in it being "within easy reach of Westminster". He then turns to address the disadvantages of the site including his view that 'there are serious questions', as to whether it would meet the critical Holocaust Memorial Commission requirement for a prominent and striking memorial (IR15.167). Further; he went on to state that 'it is at least apparent to me that the IWM site is not free from constraint.' He listed the constraints as including: a Grade II listed building and works which could affect its special interest; a conservation area; potential impact on two mature trees on the site; loss of public open space and early years play and learning facility; less well developed security infrastructure and implications for local residents. He concluded that "Clearly, achieving a combined facility here would also involve the balancing of benefits against possible harms, some not dissimilar to those at VTG" (15.168). This is the context in which he arrives at the view that "whilst seeming to offer a benign alternative, IWM lacks a detailed scheme that would meet the core requirements of the HMC and carries clear potential constraints that may hamper its delivery. Together this suggests that the weight to be afforded the IWM alternative in the planning balance is very limited." (IR 15.169). He then turns to consider timing of construction/installation of the Memorial and the importance of delivering the Memorial during the lifetime of Holocaust survivors, a matter to which considerable weight should be attached. If the scheme at Victoria Tower Gardens were to be refused, work may have to begin on the scheme at an alternative with consequent further delay (IR15.170-172 set out in full above).
Analysis of Ground 4
1) Great weight should be given to locating the Memorial in Victoria Tower Gardens, next to the Houses of Parliament, given the profound connection between the location and the purpose of the Memorial.
2) There are obvious constraints on locating the Memorial in the Imperial War Museum including that it does not appear able to fulfil a key Commission requirement for a striking and prominent Memorial.
3) Other constraints on the Imperial War Museum site include potential impact on heritage assets; security and impacts on local residents.
4) The suggestion that locating the Memorial in the Imperial War Museum will be free from controversy is optimistic.
5) Though unusual in planning terms, it is of material weight that the Holocaust Memorial should be raised within the lifetime of at least some of those survivors.
6) In the event the Minister was to refuse permission for the Memorial in Victoria Tower Gardens the detailed process of selection, evaluation, preparation, design, consultation and formal consideration of a new proposal would begin again. This suggests approximately five years of further work, which will add to the number of survivors who do not live to see the outcome.
7) Achieving a memorial within the lifetime of survivors has a resounding moral importance that can legitimately be considered a material consideration and a public benefit of great importance, meriting considerable weight in the planning balance in this case."
"WCC believes that the absence of detailed and worked up alternatives before the Inquiry is not a reason for discounting this principle, as the Court said "Although generally speaking it is desirable and preferable that a planning authority (including, of course, the Secretary of State on appeal) should identify and consider that possibility by reference to specifically identifiable alternative sites, it will not always be essential or indeed necessarily appropriate to do so"".
Remedy
15.206 "The UKHMLC has been designed to as far as possible integrate with its context. Nonetheless, its purpose would be to both command attention and generate an emotional response to seeing and visiting it. It would attract large numbers of visitors. From the current highest recorded occupancy level of almost 400, this is anticipated to increase to a maximum of 1,269 people at any one time. The peak number of visitors accessing the secure area per day is estimated as 3,000, with a further 7,000 per day estimated as entering the park to view the Memorial only. Whilst these would be peak rather than typical use figures, it is inevitable that the significant increase in visitor numbers to the park would have an impact on its character and functionality, particularly during the Memorial opening hours proposed as between 09:30-17:30.
15.207 The degree to which the park could be used in a relaxed and informal way would be constrained by the reduction in size and division of the open flat green space, and inevitably to some extent by the increase in visitor numbers. Its quality as a peaceful breathing space would, to a degree, be diminished and it would become a busier and more structured environment. This would include lighting of the Memorial, and the footpaths leading to it, at night."
Conclusion
Postscript: Permission to appeal
163. As regards the exercise of discretion to allow Ground 3 to be argued: Mr Mould places reliance on the statement in Trustees of Barker Mills Estates v Test Valley Borough Council [2016] EWHC that "one factor which weighs strongly against allowing a new point...is that if it had been raised in the earlier inquiry...it would have been necessary for further evidence to be produced and/or additional factual findings or judgments by the inspector, or alternatively participants would have had the opportunity to adduce evidence or make submissions". Mr Mould submits that this was precisely the case here. However, there is a clear distinction between the present case and the Barker Mills case. In Barker Mills the point in question had not been raised by any party during the examination, a point the Judge placed emphasis on ("Furthermore, no one suggests that it was raised by any other party" (70)). Here, the point was raised by a party and in terms which directly invoke the central point about legality ("Building on VTG…would be illegal under the Act…as the Act requires that the land be maintained as 'a garden open to the public'" (extract from the relevant submission)). Having been raised, the Act needed to be grappled with, but it was not. This is the context in which Mr Mould's submission that the parties have been denied an opportunity to adduce evidence on the matter falls to be assessed. In the circumstances of this case, any such missed opportunity cannot amount to a countervailing factor against the exercise of the discretion.
