Current events underline why we must never forget the Holocaust. When it comes to what is now happening in Ukraine at least there is more that we could be doing NOW both for the victims and to seek to bring this dreadful intentional slaughter of innocents to an end.
It is utterly frustrating that the planning permission granted for the construction of the United Kingdom Holocaust Memorial and Learning Centre in Victoria Tower Gardens, next to the Houses of Parliament, has been now quashed due to the failure of the decision maker, and indeed every major participant in the application process, to consider the implications of a local Act of Parliament affecting the gardens, the London County Council (Improvements) Act 1900. For this is the outcome of London Historic Gardens Trust v Minister of State for Housing (Thornton J, 8 April 2022). The court has also published this summary.
The judgment repays reading not just on this point but on the issue which often arises in cases involving heritage aspects – what is the threshold for “substantial harm” as defined in the NPPF?
First, the background…
The Government set up the Holocaust Commission in January 2014 “to examine what more should be done in Britain to ensure that the memory of the Holocaust is preserved and that the lessons it teaches are never forgotten.”
The Commission carried out a consultation process and recommended in January 2015 that a monument be established, vitally with an accompanying learning centre:
“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.”
The UK Holocaust Memorial Foundation was created and the then prime minster announced on 27 January 2016 that Victoria Tower Gardens would be the location.
As summarised by the judge:
“Victoria Tower Gardens has considerable cultural, historical and heritage significance. It is located on the north bank of the River Thames immediately south of and adjacent to the Palace of Westminster and Black Rod Garden. It is a Grade II Registered Park and Garden. It contains within it 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 has contained a garden for public recreation since approximately 1880.”
Unusually, Secretary of State made the application for planning permission, in January 2019 (this would have been the late James Brokenshire).
The proposals have always been surprisingly controversial. When Westminster City Council delayed in determining the application, rather than being appealed on the basis of non-determination, the Application was procured to be called in but due to the Secretary of State clearly being “off side”, handling arrangements were arrived at (after previous litigation by the London Historic Parks and Gardens Trust) that resulted in the minister of state for housing being the decision maker.
The proposals were approved on 29 July 2021 after a long inquiry.
The decision was challenged by the Trust on what became three grounds when the case came to a full hearing before Thornton J. The grounds before her were as follows:
“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.”
“Ground 3: The London County Council (Improvements) Act, 1900”
“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 issues arising were as follows:
“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?”
That 1900 Act ground had been considered unarguable at permission stage in the proceedings but the renewed application for permission on that ground had been allowed by Thornton J to be dealt with on a rolled-up basis as part of the main hearing. The twists and turns of litigation never fail to amaze. This proved to be the decisive issue in the whole case. As indicated by the judge:
“In his application to renew, Mr Drabble focussed on section 8(1) of the 1900 Act rather than section 8(8) which had been the focus of submissions before the Permission Judge. As refined by Mr Drabble, the ground is arguable, and I grant permission. Given the refinements to the Trust’s case as developed during oral submissions at the hearing, including the production of the Local Law (Greater London Council and Inner London Borough) Order 1965, I considered it appropriate (and of assistance to the Court) to allow the parties the opportunity to make short written submissions after the hearing.”
So what was this killer point?
By way of brief interjection, the outcome hasn’t gone down well with one previous Secretary of State at least:
Section 8(1) reads as follows:
“(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”
The judge’s interpretation:
“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”
Her conclusion was reinforced by detailed consideration of pre-legislative material leading up to the 1900 Act.
Did this restriction on use of the gardens matter, being separate from planning legislation? In her view, yes:
“the 1900 Act is a material consideration because of the impediment it presents 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.”
So the case succeeded on ground 3, and also partly therefore on ground 4:
“I have concluded in relation to Ground 3 that, section 8 of the 1900 Act imposes an enduring statutory obligation to maintain Victoria Tower Gardens as a public garden, This is a material consideration in the context of the Inspector’s emphasis on the importance of the need to deliver the scheme within the lifetime of the Holocaust survivors. The Inspector considered the question of alternative sites and the implications of their deliverability without assessment of the deliverability of the location in Victoria Tower Gardens in the context of the issues now presented by the Court’s construction of the 1900 Act. In the circumstances, as a consequence, to this extent, Ground 4 succeeds.”
What of ground 1, whether the correct test of “substantial harm” was used? I’m going to pass the keyboard to my Town Legal colleague Tom Brooks to explain:
“Ground One sought to challenge the primacy of that long favoured quote of heritage consultants seeking to duck the NPPF test of substantial harm, from Bedford BC v Secretary of State for Communities and Local Government (High Court, 2012), paras 24-25:
“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 […] 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.”
In arguing that there was no substantial harm to the Grade II* listed Buxton Memorial at the inquiry, the Secretary of State (as applicant) had relied on this definition from Bedford. In making the same argument, Westminster City Council had preferred the Planning Practice Guidance definition that substantial harm “seriously affects a key element of special architectural or historic interest”.
The ground of challenge put to Thornton J, that the inspector had erred by adopting the Bedford test, failed.
Thornton J found that the references to Bedford in the inspector’s heritage analysis “are no more than the Inspector confirming, or cross checking his analysis, conducted by reference to his view of the test as the ‘serious degree of harm to the asset’s significance’, by reference to the case advanced before him […] This is unimpeachable” (para 46)
The inspector’s approach was thus “entirely consistent” with the approach to the NPPF test that had been stipulated in City & County Bramshill Limited v Secretary of State (Court of Appeal, 2021), summarised by Thornton J as follows:
“The question whether there will be substantial harm to a heritage asset is a matter of fact and planning judgment and will depend on the circumstances. The NPPF does not direct the decision maker to adopt any specific approach to identifying harm or gauging its extent beyond a finding of substantial or less than substantial harm.” (para 47)
The judgment helpfully and eloquently goes on to put to bed the use of Bedford as a test of substantial harm.
The references to the draining away and vitiating of significance are simply Jay J’s “encapsulation of the Inspector’s application of the test of substantial harm” (para 51) in that specific case, and nothing more.
“[The Bedford] judgment does not import a test of ‘draining away’ to the test of substantial harm […] a word like ‘substantial’ in the NPPF means what it says and any attempt to impose a gloss on the meaning of the term has no justification in the context of the NPPF. […] It is not appropriate to treat comments made by a Judge assessing the reasoning of an individual decision maker, when applying the test of ‘substantial harm’ to the circumstances before him/her, as creating a gloss or additional meaning to the test.” (para 53)
Cue hasty edits to heritage impact assessment methodologies across the land.”
Thanks Tom. Now it’s back with me, just to say that this week’s clubhouse session will be at 5pm on Wednesday 13 April 2022 and we will be examining the government’s Energy Security Strategy, with Ben Lewis (Barton Willmore), Rachel Ness (Clearstone Energy), David Hardy (Squire Patton Boggs) and my Town Legal colleagues Duncan Field and Nikita Sellers. Join us here.
Simon Ricketts, 9 April 2022
Personal views, et cetera