THE LONDON HISTORIC PARKS AND GARDENS TRUST v THE MINISTER OF STATE FOR HOUSING & Anor.

This is a claim for statutory review, pursuant to s. 288 of the Town and Country Planning Act 1990, of the decision by the Minister of State for Housing to grant planning permission for the installation of the United Kingdom Holocaust Memorial and Learning Centre at Victoria Tower Gardens in Millbank, London.

The proposal for a UK Holocaust Memorial and Learning Centre (‘the Holocaust Memorial’) was first announced in January 2015 in the Holocaust Commission’s Report, ‘Britain’s Promise to Remember’:

All parties before the Court support the principle of a compelling memorial to the victims of the Holocaust and all those persecuted by the Nazis during those years when, “humanity was tipped into the abyss of evil and depravity”. The memorial is an essential part of “Britain’s Promise to Remember” (Holocaust Commission Report). The Trust explained to the Court that many of its supporters are Jewish people whose families were either forced to flee the Holocaust or who perished in it.

The issue dividing the parties is the proposed location of the Memorial in Victoria Tower Gardens. 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.

It is important to emphasise that the merits of the Memorial’s proposed location in Victoria Tower Gardens are not a matter for the Court. Its location there may raise matters of legitimate public debate, but they are not matters for the Court to determine. The role of the Court in judicial review is concerned with resolving questions of law and ensuring that public bodies act within the limits of their legal powers.

The three issues that arise for consideration by the Court in this challenge are:

The Claimant is the London Historic Parks and Gardens Trust (‘the Trust’). It is a small charity with the principal object of preserving and enhancing the quality and integrity of London’s green open spaces. The First Defendant is the Minister of State for Housing (‘the Minister’) and decision maker on the planning application. The Second Defendant is Westminster City Council, the local planning authority for the area. The First Interested Party is the Secretary of State for Housing, Communities and Local Government and the applicant for planning permission. The Second Interested Party is Learning from the Righteous, a Holocaust Education Charity concerned to highlight the contemporary relevance of Holocaust Education.

On 27 January 2014, on Holocaust Memorial Day, the then Prime Minister launched the Holocaust Commission. Its task was to examine what more should be done in Britain to ensure that the memory of the Holocaust is preserved and the lessons it teaches are never forgotten. In January 2015, the Commission published a report titled ‘Britain’s Promise to Remember’. The report concluded that there should be a striking memorial prominently located in Central London. It would serve as the focal point for national commemoration of the Holocaust. A location in Central London would attract the largest possible number of visitors. The aim would be to make a bold statement about the importance Britain places on preserving the memory of the Holocaust.

Victoria Tower Gardens is a Grade II Registered Garden and area of accessible public open space, located on the north bank of the River Thames, immediately south and adjacent to the Palace of Westminster and Black Rod Garden. The site is bounded by Abingdon Street and Millbank to the west, the River Thames to the east and Horseferry Road/Lambeth Bridge to the south.

Within the Gardens there are 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 Grade II listed River Embankment from the Houses of Parliament to Lambeth Bridge forms the eastern (river) edge of the Gardens.

The site is also within the setting of a number of other listed buildings and structures, including the Grade I listed Palace of Westminster, Lambeth Bridge (Grade II listed), Victoria Tower Lodge and Gates to Black Rod Garden (Grade I listed), Norwest House, Millbank (Grade II listed), The Church Commissioners (Grade II* listed) and Lambeth Palace (Grade I listed).

The site is located within the Westminster Abbey and Parliament Square Conservation Area and is immediately south of the Palace of Westminster and Westminster Abbey including St. Margaret’s Church World Heritage Site. The site is to the east of the Smith Square Conservation Area.

The UK Holocaust Memorial Foundation was established with cross-party support to deliver the recommendations of the Holocaust Memorial Commission. Its work included a call for potential sites.

In 2015, after studying the available options, three central London sites were identified; the Imperial War Museum; Potter’s Field and Millbank. They were all regarded as fulfilling the Commission’s objective to provide a striking new memorial prominently located in Central London.

In January 2016, the then Prime Minster announced that the memorial would be built in Victoria Tower Gardens. A design competition was launched in September 2016 and in October 2017 it was announced that Adjaye Associates, Ron Arad Architects and the landscape architects Gustafson Porter + Bowman had been selected to design the Memorial and Learning Centre for the Gardens.

The selection of Victoria Tower Gardens as the site was controversial. In its closing submissions to the planning inquiry, the Trust expressed concern that the Gardens were chosen without any professional assessment to support the choice of the site and no public consultation as to its suitability, acceptability or desirability as a location. Proper consideration of alternative sites were said to have received scant consideration.The Trust expressed further concern that the site search process was not a matter for scrutiny in the public inquiry. These concerns formed part of the Trust’s submissions to the Court on the Inspector’s approach to alternative sites.

In January 2019, the Secretary of State for Housing Communities and Local Government applied to the Council for planning permission for the Memorial to be located in the Gardens. Plans of the design illustrate the Memorial as comprising 23 bronze fins honouring the millions of Jewish men, women and children who lost their lives in the Holocaust, and all other victims of persecution, including Roma, gay and disabled people. The 23 bronze fins will create 22 pathways into and from the Learning Centre which will be constructed below ground.

In November 2019, the then Minister for Housing directed that the planning application be referred to her for determination, pursuant to section 77 of the Town and Country Planning Act 1990. Given the Secretary of State was the applicant for planning permission handling arrangements were put in place at the Government Legal Department and the Department for Levelling Up, Housing and Communities (as renamed since the decision under challenge) to ensure there was, and is, a functional separation between the persons bringing forward the proposal and the persons responsible for determining the proposal. Following a successful legal challenge by the Trust to the decision making arrangements the arrangements were revised and published (London Historic Parks and Gardens Trust v the Secretary of State for Housing Communities and Local Government [2020] EWHC 2580 (Admin)).

A public inquiry was held into the application by an Inspector appointed by the Minister for Housing between 6 – 23 October 2020 and 3 – 13 November 2020.

The Trust appeared at the inquiry and was formally represented. Whilst supporting the principle of the Memorial, the Trust, and other parties with whom they made common cause, opposed its location in Victoria Tower Gardens on the basis that it represents an exceptionally serious intrusion into a green public open space of the highest heritage significance. The Trust called expert evidence on harm to heritage assets; harm to the character, amenity and significance of Victoria Tower Gardens as a Registered Park and Garden; harm to the mature trees surrounding the park as well as on the availability of an alternative site for the memorial at the Imperial War Museum.

Westminster City Council appeared as the local planning authority. Whilst supportive of the principle of the memorial, it opposed its location in the Gardens on the basis of the sensitivities of the location and the impact on the historic environment and the risk of impact to the established trees on the west side of the Gardens. The Council considered that the Gardens might be a suitable location for a more modestly sized scheme.

Learning from the Righteous appeared in support of the application and was formally represented at the inquiry. It supported the location of the Memorial in Victoria Tower Gardens.

The Inspector’s report to the Minister of State for Housing, dated 29 April 2021, is 243 pages long, with 60 pages of analysis. The Inspector identified the main considerations as including:

In summary; the Inspector’s main conclusions and recommendations on the issues relevant to this challenge were as follows:

The Inspector recommended that the application be approved, and planning permission granted.

Following consideration of the Inspector’s Report, the Minister granted planning permission by a decision letter dated 29 July 2021. The decision under challenge is the decision of the Minister. However, in the decision letter the Minister agreed with the Inspector’s conclusions and recommendation. Accordingly, for the purposes of the present appeal it is not necessary to do more than look at the Inspector’s report.

The Trust applied for judicial review on five grounds, of which permission was granted on two Grounds:

Permission was refused on a third ground:

The Trust subsequently applied to renew its application for permission for judicial review on Ground 3. The parties agreed that the Trust’s application should be considered on a rolled-up basis at the substantive hearing into Grounds 1 and 4. 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.

The correct approach to statutory reviews pursuant to s. 288 TCPA 1990 was summarised by Lindblom LJ in St Modwen Developments Limited v Secretary of State for Communities and Local Government [2011] EWCA Civ 1643, [2018] PTSR 746 at [6]. In summary; the relevant principles of focus in submissions by the parties are that:

The legal framework for consideration of the impact of a proposed development on relevant heritage assets was common ground:

In order to understand the Inspector’s approach to the question of harm, it is necessary to understand how matters were put to him. The main parties disagreed on the correct approach to the assessment of harm to the significance of heritage assets. The position of the applicant, the Secretary of State, was that for substantial harm to be demonstrated “very much if not all of the significance is drained away or that the asset’s significance is vitiated altogether or very much reduced”. This was said to be the threshold for substantial harm set down in the case of Bedford Borough Council v Secretary of State [2012] EWHC 4344 Admin. In contrast, the local planning authority, Westminster Council relied on the Planning Practice Guidance and the guidance that ‘substantial’ harm to the significance of a heritage asset can arise where the adverse impact of a development “seriously affects a key element of (the asset’s) special architectural or historic interest” (paragraph 18)

The Inspector recorded the differences between the parties and his view of matters at IR15.11 and 15.12:

Mr Drabble submitted that the issue has been bedevilled by the application of the language to be found in the judgment of Jay J in Bedford Borough Council v Secretary of State for Communities and Local Government[2013] EWHC 2847 (Admin) at [24] which apparently requires the impact on significance to be such that “very much if not all, the significance [is] drained away for harm to be regarded as substantial.” He submits that there is no justification for this gloss and there is accordingly an obvious danger that if one regards the requirement of substantial harm as being synonymous with much if not all of the significance of the asset being drained away then too high a test is being imposed. It is, he submitted, apparent from the Inspector’s Report that this is what has happened in this case.

In my assessment, however it is apparent from IR15.12 that, having set out the parties’ views, the Inspector came to his own interpretation of the relevant test for substantial harm which he expressed as “the serious degree of harm to the asset’s significance.” Mr Drabble accepted he could not object to this formulation of the test which reflects the wording of the Planning Practice Guidance and is an expression of Government policy. Similarly, he accepted that no issue could be taken with the Inspector equating ‘substantial’ with ‘serious’.

The Inspector continued his analysis of the task before him at IR 15.13. He went on to describe, in practical terms, the identification of the measure of harm to the designated heritage assets individually and cumulatively and the apportionment of appropriate weight to the harm:

It was common ground that no issue can be taken with the Inspector’s statement that the test is a ‘high test’.

Mr Drabble went onto submit that whatever view of matters the Inspector expressed in IR 15.12 - 13, the approach he actually adopted in his task of assessing harm was to apply a test of significance draining away. In this regard Mr Drabble pointed the Court to several passages in the Report (IR15.88; 15.117; and 15.187).

I am not however persuaded that the Inspector fell into the error suggested by Mr Drabble.

The Inspector assesses the harm to the setting of the Buxton Memorial at IR15.65 – 15.69 as follows:

He further considers the impact of the development on the Buxton Memorial in the context of the Registered Park and Garden at 15. 90 – 15.94:

The Inspector draws his conclusions together on the effect on designated heritage assets as follows:

In support of his case, Mr Drabble placed emphasis on the reference to Bedford in the extract quoted above. He also referred to the section of the Report in which the Inspector conducted the heritage balancing exercise required by the NPPF (then paragraph 196 now paragraph 200) and the Inspector’s reference to:

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.

In my judgment, the passages set out above demonstrate the Inspector performing his own straightforward, careful estimation and characterisation of the harm to the Buxton Memorial and, as a consequence, to the Garden. His analysis is a sophisticated and, at times, poetic calibration of the harm. He begins by acknowledging the architectural and historic significance of the Buxton Memorial and the open spatial context in which it sits (IR 15.65/6). Turning to harm, he expresses the view that the ‘radically differing aesthetic moods of existing and proposed structures would collide in uneasy and discordant juxtaposition’. The ‘visual dominance of [the memorial] would unsettle and crowd the BM’ (IR15.67). He concludes that whilst the Buxton Memorial would remain physically unaffected by the proposal, it would fail to preserve its setting which he directs himself (correctly) as being of great importance and considerable weight, albeit that the harm ‘remains well below the threshold of substantial’ (IR15.69). In the context of the wider garden, he arrives at the view that “the exuberance of the Teulon’s structure would sit uncomfortably with the more sober and restrained modernity of the proposal”, albeit that “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”. He concludes that the measure of harm to the RPG would be moderate (IR15.94).

In this context, read fairly and as a whole, his references to the ‘Bedford test’ alighted on by Mr Drabble at IR15.117 and 15.187 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. In the case of IR15.88 the reference is no more than the Inspector repeating back the submissions made to him, to dismiss them as ‘considerably overstated’. It follows that I do not accept Mr Drabble’s submission that the Inspector’s reasoning was dependent on Bedford and thus in error. The Inspector formulated his own test, namely ‘the serious degree of harm to the asset’s significance’. This is unimpeachable and Mr Drabble did not attempt to impeach the formulation or propose an alternative formulation.

Moreover, the exercise conducted by the Inspector is entirely consistent with the approach to paragraphs 195 and 196 (now 201 and 202) of the NPPF, stipulated by the Court of Appeal in City & County Bramshill Limited v Secretary of State[2021] 1 WLR 5761. 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. There is no one approach to the question:

On behalf of the Secretary of State, Mr Katkowski suggested that I should approach Bramshill with caution and he submitted that paragraph 74 cited above is obiter. Whilst that might, strictly speaking, be true given the facts of the case, Lindblom LJ’s observations directly concern the interpretation of the test of substantial harm and are, in any event, consistent with a line of authority from the Court of Appeal emphasising the self-effacing role of the Court in respecting the expertise of Planning Inspectors and guarding against undue intervention in policy judgments within their areas of specialist competence which do not lend themselves to judicial analysis. (See in this context Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37 and (R (Samuel Smith Old Brewery) v North Yorkshire County Council[2020] PTSR 221)).

Before leaving this ground, it is necessary to say a few words about the judgment of Jay J in Bedford Borough Council v Secretary of State [2013] EWHC 2847 (Admin). This is because Mr Drabble submitted the judgment has been misinterpreted, whilst on behalf of the Secretary of State, Mr Katkowski submitted that the ratio of the case is to be found, in part, at the end of paragraph 24 (the impact on significance was required to be serious such that very much if not all of the significance was drained away).

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”.

Read in context, the final sentence of [24] is Jay J’s encapsulation of the Inspector’s application of the test of substantial harm in the decision letter which was before him to review.

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

Accordingly, read as a whole and in context, Jay J’s judgment does not import a test of ‘draining away’ to the test of substantial harm. He was not seeking to impose a gloss on the term. The judgment in Bedford accords with the approach stated by the Senior President of Tribunals at [74] in Bramshill. It is clear from cases like Tesco v Dundee [2012] UKSC 13; R(Samuel Smith) v North Yorkshire County Council [2020] UKSC 3; Bramshill and others, that 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. The policy framework and guidance provide a steer that relevant factors include the degree of impact, the significance of the heritage asset under scrutiny and its setting. 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.

Accordingly, Ground 1 fails.

In interpreting a statute, the Court is “seeking the meaning of the words which Parliament used”. A phrase, or passage, must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained (R (O) v Home Secretary [2022] UKSC 3 (Lord Hodge at 29)).

It was common ground that the London County Council (Improvements) Act 1900 is a private Act of Parliament, promoted by London County Council, which provided the Council with statutory authority to carry out improvement works to the Thames Embankment area. The long title of the Act is:

The preamble states that “Whereas it is expedient to confer on the London County Council (herein-after called “the Council'”) powers to make the improvements and works herein-after described and it is also expedient to confer on the Council such powers as are herein-after set forth with regard to the raising of money for the purposes of this Act:”

Sections 4 & 5 details the relevant improvements and works authorised by the Act which include:

Section 6 entitles the Council to enter upon, use and take specified lands. Section 7 makes provision in relation to the construction of the embankment wall.

For present purposes, the critical section is Section 8, the side note to which states: “For protection of the Commissioners of Works”. The recitals to the section state:

Section 8(1) to 8(8) provide as follows:

Sections 8(8) – (14) make provision in relation to a variety of matters including the purchase of a house; identifying land to become part of the widened Street and vacant possession.

Sections 8(15) – (18) provide as follows:

Subsequent clauses detail provisions for the protection of the Conservators of the River Thames; the London Hydraulic Power Company and other organisations as well as making provision for consequential matters.

In 1965, the Local Law (Greater London Council and Inner London Boroughs) Order (SI1965/54) was laid before Parliament and came into operation. Article 5 provides that: “The enactments specified in Schedule 3 are hereby repealed to the extent mentioned in the third column of that schedule.” Schedule 3 provides that the London County Council (Improvements) Act 1900 is repealed“other than sections 1 and 7 to 9 and so much of section 2 as is necessary to give effect to those sections.” Accordingly, section 8 of the Act remains in force.

Mr Drabble submits that Section 8 (preamble) and section 8(1) provide in mandatory terms for the laying out and maintenance of the relevant land referred to in the Act as the ‘new garden land’ (s.8(3)) as a garden for the public. Overall, the new garden land is an integral part of Victoria Tower Gardens, and cannot even be used as a separate or distinct garden with a different design. Consistent with the statutory obligation, the new garden land has been maintained for the past century by the Commissioners and its statutory successors in title as a garden open to the public and as an integral part of Victoria Tower Gardens. That obligation currently falls on the Secretary of State for Culture Media and Sport as the owner of the new garden land and ultimate statutory successor to the Commissioners of Works.

Mr Mould (whose submissions were endorsed by Mr Katkowski for the Secretary of State) submits that the legislative purpose of the protective provision enacted under s.8(1) of the 1990 Act was (i) the incorporation into the then existing Victoria Tower Gardens of the area of land to the south formed by the extension of the Thames Embankment to the riverside and the re-alignment of Millbank Street to the west; and (ii) the laying out and maintenance of that land as a public garden forming an integral part of Victoria Tower Gardens, subject to regulation by the Commissioners, in whom the land was to be vested under s.8(4) of the 1990 Act. That legislative purpose had been fulfilled by no later than 1914, as is apparent from an Ordnance Survey map of that year. By that date and no doubt earlier, the new garden land had been laid out and was already under maintenance as a garden open to the public and as an integral part of Victoria Tower Gardens as it existed in 1900 (see s.8(1) of the 1990 Act). The statutory objective in s. 8(1) was achieved when Victoria Tower Garden was laid out and vested in the Commissioners to maintain. Or, to use the express language of s.8(1), to maintain “as hereinafter provided” as a garden open to the public. Those words plainly look forward to s.8(8) of the 1900 Act and the maintenance obligation therein stated. No further provision was needed to be made for the protection of the Commissioners as the owners of the new garden land – they were plainly to be trusted to control the future use or development of Victoria Tower Gardens in accordance with those byelaws and regulations which they saw fit to impose. There was neither need nor any purpose in Parliament imposing a statutory prohibition on the future use or development of the new garden land, in those circumstances the legislature entrusted such matters to the Commissioners’ judgment. The plain words of s.8(1) of the 1900 Act impose no prohibition on development with the new garden land, or indeed any prohibition. Section 8(1) is concerned with requiring things to be done. It is not in any way (expressly or impliedly) concerned with prohibiting things from being done. Had Parliament intended s.8(1) to prohibit things being done in Victoria Tower Gardens after the new garden land had been laid out and integrated into the extended public garden, Parliament would have expressed itself in those terms. Mr Mould invited the Court to compare and contrast ss.8(15)(16)(18)(20)(21) of the 1900 Act, which contain express prohibitions. It is fanciful, he submitted, to suggest that Parliament nevertheless intended s.8(1) to operate as a prohibition by implication.

Interpretation of Section 8 of the Act

The preamble to section 8 of the Act explains that the improvement works would necessitate the occupation of land under the control of the Commissioners or the Crown and interference with the garden already in existence (Victoria Tower Gardens as it was before the extension authorised by the 1900 Act). Accordingly, “For protection of the Commissioners of Works” (the side note to s.8 of the Act) it was agreed between the Commissioners and the Council that the works ‘shall only be executed subject to and in accordance with’ the provisions of section 8. Section 8 includes, as is common ground, an extension (the new garden land) to the existing Gardens. The preamble refers to a plan signed by the Chairman of the Committee of the House of Lords. The Court was taken to an (unsigned) copy of plan which shows the new garden land coloured in green. This is in contrast to an earlier Ordnance Survey map which shows a cement works, a wharf and other buildings in the same area.

Sections 8(1) - 8(8) create a cascade of obligations which include as follows:

Laying out of the land as a public garden integral to the existing gardens was carried out and completed but section 8(1) and (8) provide a continuing obligation to maintain it. Section 8 has not been repealed and accordingly the obligation subsists. The question that arises is whether ‘maintained’ is to be understood as meaning that the land must be kept for use as a public garden or whether it is limited to meaning to the garden must be kept in good repair/maintenance for so long as it is used as a public garden.

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 thatthe 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.

Mr Mould’s submissions rest on there being a temporal limit to the obligation for the land to be ‘laid out and maintained’ in section 8(1) of the Act but the words “shall be laid out and maintained” do not, of themselves, incorporate within them any sort of time limited expiry date. They suggest the opposite, namely an ongoing obligation (‘laid out and maintained). There is, for example, no express wording to the effect that the garden must be kept in good repair, for so long as it remains a garden, which would have supported Mr Mould’s interpretation.

I do not accept sections 8(15)-(18) of the Act merit the significance which Mr Mould sought to attach to them. He submitted that where Parliament considered it was regulating the future it said so expressly, as with section 8(17) which makes reference to ‘subject to the provisions of any future Act of Parliament’. However, in my judgment sections 8(15)-(18) simply impose controls on works that could be carried out, or were not the subject of any absolute prohibition. Their existence does not address the issue of whether sections 8(1) and (8) are to be read as simply requiring a garden to be laid out which could thereafter be used or built upon as the Commissioners desired, or as requiring that the land be thereafter kept for use as a public garden.

I accept Mr Mould’s submission that the plain words of s.8(1) of the 1900 Act do not impose a prohibition on development in the new garden land. He is correct to say that Section 8(1) is concerned with requiring things to be done but the words create a statutory purpose, which has the effect of imposing a fetter on activities that conflict with the statutory purpose.

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.

Conclusion on the construction of section 8 of the Act

Accordingly, I arrive at the following construction of section 8 of the 1900 Act:

The pre-legislative material

The Trust produced evidence from Dr Gerhold, a former House of Commons Clerk and a Fellow of the Royal Historical Society and the Society of Antiquaries. In his witness statement, he stated that he was familiar with the Parliamentary process and with archival work. He explained that he undertook research on the history of the Act using the London Metropolitan Archives and the Parliamentary Archives. The bulk of the material relied on comprises Minutes of the London County Council Improvements and Parliamentary Committees. There are also minutes from Westminster Council (Westminster Vestry) and a letter from the First Commissioner of Works, a position within Government (later to become a Government Department). Dr Gerhold produced a detailed chronology of the history of the Act with references to the documents he had drawn upon to produce the chronology.

Mr Drabble submitted that his primary case on section 8 rested on the meaning of the words in the section and was not reliant on the pre-legislative materials produced by Dr Gerhold. Nonetheless, he submitted, the contemporaneous contextual evidence supported his interpretation.

No objection was taken at the hearing to Dr Gerhold’s evidence by the other parties. His evidence was relied on by Mr Mould for his submissions in relation to the fulfilment of the statutory purpose of section 8(1) once the improvement works had been completed and the garden laid out as a garden, which I consider below. No party submitted before me that the Court could not have regard to the material produced by Dr Gerhold. The context of the Act as a whole includes its legal, social and historical context (Principles of Statutory Construction: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020) (11.1, 11.2 and 11.3)).

I turn to Dr Gerhold’s chronology of the Act, supplemented with quotes from the documents he relied upon from the archives.

In 1867, the northern part of the Gardens was purchased by the Government of the day under the Houses of Parliament Act 1867 (0 & 31 Vict, cap 40). The land was purchased and cleared to reduce the fire risk to the new Palace of Westminster. The Act made no provision about the use of the land. In 1879, the Rt Hon W.H. Smith MP donated £1000 towards laying it out for public use. A further £1400 was voted for by Parliament. W.H. Smith MP asked the then Office of Works to record in a minute that the sum had been accepted to level, turf and gravel the ground “in order that it may be thrown open to the public and become available as a recreation ground”. The minute requested has not been traced, but later correspondence around negotiations for the 1900 Act, refers to the Government being “pledged to an agreement with the late Rt Hon WH Smith for the Gardens to be maintained as a public recreation ground.”

In 1898, a private syndicate proposed a scheme for rebuilding the Millbank area. The scheme was rejected by the Commons, partly because the plan involved building on the riverside rather than extending the existing open space:

Prompted by the activity of the private syndicate, London County Council decided to bring forward its own scheme and instructed its Improvements Committee to prepare their own scheme for the area:

On 15 June 1898, the Improvements Committee reported on initial proposals to the Council. They assumed that the existing garden would be extended to Lambeth Bridge. They estimated that the net cost of the scheme would be £642,000. They commented that if, instead of laying out a garden, the land was built on, the cost would only be £71,900. They noted that the difference in cost of £570,600 could not be justified for four acres of land unless Parliament was willing to contribute:

The County Council then proposed a scheme in which the land between Millbank and the river would be laid out as a garden. However, in order to increase the County Council’s bargaining power with the Government, the Council amended the wording of the resolution so that it would not be committed to laying out the land by the river as a garden:

On 4 July 1899, the Council approved the proposal for submission to Parliament:

On 12 July 1899, Westminster Vestry agreed to contribute £100,000 on the condition that the land between Millbank and the river would be converted into a public garden:

On 11 October the Improvements Committee proposed an amended scheme. The new scheme included a realignment of Millbank so that it was closer to the river. This made more land available for building and reduced the overall cost of the scheme.

The Council approved the amended scheme. In around November to December, the Bill was deposited before Parliament accompanied by a plan which did not specify that the land by the river was to become a garden.

On 14 December the First Commissioner of Works wrote to the Council objecting that the Bill did not specify the land by the river becoming a garden:

On 23 February 1900, the First Commissioner of Works wrote to the Council again insisting that the Bill had to provide for the land by the river to become a garden:

On 28 February 1900, the Council’s Improvements Committee advised the Council’s Parliamentary Committee of the First Commissioner’s proposed amendments. The Improvements Committee agreed with the First Commissioner, on the basis the Council had approved plans showing the land as a garden in July and October 1899 which had been the basis for negotiation:

A report by the Improvements Committee emphasised that the intention all along had been to extend Victoria Tower Gardens and the Government’s decision to give up a small part of the existing Victoria Tower Gardens and five houses in Abingdon Street required for the scheme was conditional on the provision of a garden, as was Westminster Vestry’s contribution of £100,000. It noted that it would not be justifiable for the Council to claim a concession from the Government but keep a discretion to either lay the land out as a garden or to build on it. The report also stated that Parliament would be certain to reject the bill given that the private syndicate’s plan was rejected because they proposed to build on the land:

On 1 March 1900, on the Second Reading of the Bill in the Commons, the First Commissioner said that the bill must be amended to provide that the land between Millbank and the river be laid out as a garden, and that he would otherwise ask the House to reject the bill on its Third Reading.

On 20 March 1900, the Council agreed to accept a clause specifying that the land between Millbank and the river was to be laid out as a garden:

Between 2 and 4 May 1900, the Westminster improvements clauses of the bill were considered by the Commons Select Committee on the London County Council (Improvements) Bill. The Committee agreed the amendments to the Bill. On 11 July 1900 the Lords Select Committee on the London County Council (Improvements) Bill considered the Bill. The [Lords] Committee rejected the proposed realignment of Millbank.

On 24 July 1900, the Council considered reports from its Improvements and Parliamentary Committees. It agreed to accept the Lords’ Committee’s proposal and proceed with the improvements on the condition that the Committee approved the plan first proposed by the Improvements Committee in June 1899:

On 26 July the Lords Committee implicitly agreed to the June 1899 plan. On 6 August 1900 the Bill received Royal Assent.

Analysis of the historical context

The archived documents uncovered by Dr Gerhold bring the Preamble to section 8 of the Act, to life. In particular, they demonstrate that the use of the land in question for a garden was a central part of negotiations during the passage of the 1900 Act. As the First Commissioner explained in his letter of 14 December 1899 the ‘public benefit’ of a public garden ‘was, in the mind of the First Commissioner, one of the principal considerations in favour of giving up a strip of the existing garden.”

Mr Mould relied on the context in submitting that in return for the disadvantages to the Commissioners of the works, section 8 ensured the land was developed as a garden and not given over to buildings as it had been previously. However, once Millbank had been widened and the gardens laid, as envisaged in the plan in 1900, the legislative purpose of s.8(1) had been fulfilled. The statutory objective in s. 8(1) was therefore achieved when the Garden was laid out and vested in the Commissioners to maintain. This had happened, he submitted, by the latest in 1914 as is apparent from an Ordnance Survey map of 1914. In this context he submitted that no further provision was necessary for the future regulation of the Garden, which could be left to the good sense of the Commissioners using their powers under bylaws and regulations.

Mr Mould relied on an Ordnance Survey Map of 1914 which added cogency to his submission that the statutory objective had been fulfilled by the laying out of the Garden. However, the Ordnance Survey map in question post-dates the Act by 14 years. In my judgment, Mr Mould’s submissions fall to be tested by their implication that as soon as the improvement works were completed, the protective provision in section 8(1) fell away, with the result that the new garden land could be used for another purpose or built upon again. Viewed from the perspective of 120 years later, this may seem unobjectionable. However, in my judgment, the context demonstrates that it would not have been considered acceptable to those involved in the negotiations of the Act that, say, four – six months after Millbank had been widened and the Garden laid out as extended, the new garden land could be used for some other purpose or built upon. The provision of a garden was of central importance to the negotiation of the Act and its passage into law. A scheme for rebuilding the Millbank area, proposed by the private syndicate in 1898, had been rejected by the Commons, partly because the plan involved building on the riverside rather than extending the existing open space. Mr Mould submitted that the future of the garden could be left to the good sense of the Commissioners. However, the context reveals that it was not just the Commissioners who had an interest in the use of the land as a garden. Westminster Vestry had donated £100,000 to the scheme conditional on the provision of a garden. Moreover, in 1879, the Rt Hon W.H. Smith MP donated £1000 towards laying it out for public use. A further £1400 was voted for by Parliament. W.H. Smith MP asked the then Office of Works to record in a minute that the sum had been accepted to level, turf and gravel the ground “in order that it may be thrown open to the public and become available as a recreation ground”. The minute requested has not been traced, but later correspondence around negotiations for the 1900 Act, refers to the Government being “pledged to an agreement with the late Rt Hon WH Smith for the Gardens to be maintained as a public recreation ground.” In my judgment, the historical context is clear and supports Mr Drabble’s interpretation of the wording of section 8 as providing an enduring obligation to keep the land for use as a public garden.

Both Mr Drabble and Mr Mould made submissions on the following extract from the Report of the Council’s Improvements Committee dated 13 March 1900:

Mr Drabble did not seek to rely on the extract for his primary case but submitted that, to the extent that the Court considered it necessary to resort to external aids, the reference in the extract to the land ‘being kept as a garden for the use of the public for ever” supported his interpretation. Mr Mould submitted in response that the absence of any reference to ‘for ever’ in the Act indicated that Parliament had not accepted the Committee’s aspiration that the garden should be forever. The Trust was, he submitted, asking the Court to infer that, notwithstanding that those words are notably absent from s.8(1) of the 1900 Act, nevertheless they are to be read into that enactment as representing Parliament’s true intention. That contention was, he said, simply unsustainable.

Both Counsel were, at this juncture, using pre-legislative material to elucidate meaning, rather than context. In R(O) v Secretary of State Lord Hodges expressed the view that “none of these external aids displace the meanings conveyed by the words of a statute that after consideration of the context are clean and unambiguous and which do not produce absurdity” [30], Lady Arden was however prepared to consider that: “There are occasions when pre-legislative material may, depending on the circumstances, go further than simply provide the background or context for the statutory provision in question. It may influence its meaning.” [64]. She considered the benefit of doing so as enabling the Court to reach a better-informed interpretation of a provision [66]).

The difficulty in the present case is that the material relied on to elucidate meaning is the minutes of a Committee of the Promoter of a private Bill, a category of material not in the contemplation of Lord Hodge and Lady Arden in R(O) v Secretary of State. The parties did not address me on the admissibility of the material. My conclusions on the construction of section 8 of the Act, do not rely on the pre-legislative material. However, to the extent the Court is able to rely on the pre-legislative material to elucidate meaning (in addition to context) then, in my view, it provides strong support for the interpretation I have arrived at on the basis of the wording of section 8.

Finally, I address briefly, the submission by Mr Mould and Mr Katkowksi that the Gardens had accommodated a number of structures over the years, including the Buxton Memorial, which had not been considered to be contrary to the 1900 Act. I do not consider factual developments since the passage of the Act to be of assistance to my task of ascertaining the meaning of the wording of section 8 of the 1900 Act.

Mr Drabble submitted that the existence of the 1900 Act makes the Holocaust Memorial effectively undeliverable. Deliverability was a material consideration which the Inspector failed either adequately, or at all, to take into account. This failure has led to an error of law. Mr Mould disputed this analysis. Restrictions in other statutes are ordinarily not material considerations which the planning decision maker is obliged to consider. Mr Mould pointed in this regard to R v Solihull Borough Council, Ex parte Berkswell Parish Council (1999) 77 P. & C.R. 312, considering the Berkswell Enclosure Act 1802. By analogy with that case, no party to the public inquiry into the planning application advanced the alleged statutory restriction as a material consideration which the planning decision maker must take into account and evaluate. If and insofar as s. 8 of the 1900 Act may be found to impose an impediment on the delivery of the Memorial in accordance with the planning permission, that is a matter for those responsible for construction of the Memorial.

It is trite law that in deciding whether or not to recommend the grant of planning permission the Inspector (and subsequently the Minister) were obliged to have regard to material considerations (section 70(2) of the Town and Country Planning Act 1999).

I accept Mr Mould’s submissions to the extent that, in general terms, the grant of planning permission sanctions the carrying out of a development which otherwise would be in contravention of the statutory prohibition against, in general, the carrying out of any development of land without planning permission. It establishes that the construction of a scheme is satisfactory on planning grounds. That decision is without prejudice to any further consents which may or may not be required for implementation of the planning permission. Someone who obtains planning permission may have to overcome any number of hurdles when seeking to implement the permission.

However, in this case, when considering the credibility and viability of alternative sites, the Inspector identified the deliverability of the proposal and, in particular its timing as a material consideration meriting considerable weight:

If, as I consider to be the case, installation of the Memorial in the Gardens is contrary to the statutory purpose of section 8 of the 1900 Act then in my judgment this is a material consideration, given the Inspector’s emphasis on the importance of the need to deliver the Memorial within the lifetime of the Holocaust survivors. I note that, in May 2020 at least, the Government Legal Department appeared to be of the same view:

The third aspect of Mr Mould’s response on this ground was that the Inspector cannot be criticised for not considering the 1900 Act when it was not raised before him. The Trust was well aware of the point of statutory construction, having raised it with the Minister in advance of the inquiry but it did not pursue the matter at the inquiry. It is, he submitted, not tenable to sustain an argument under s288 of the Town and Country Planning Act that the Court should now interfere with the decision of the Minister to grant planning permission on the basis of the disputed effect of private legislation, a point that was only raised in the present proceedings after the decision to grant planning permission had been made. The Inspector cannot be criticised for not considering a matter which the Trust did not raise when it had the opportunity to do so.

In response, Mr Drabble submitted that there is no general rule preventing a party from raising an argument in a planning challenge that was not advanced by the party before the Inspector. A person with standing is entitled to a lawful decision. Mr Drabble relied on the following dicta of the Deputy High Court Judge in South Oxfordshire DC v Secretary of State for the Environment Transport and the Regions [2000] 2 All ER 667:

In response, Mr Mould pointed out that the Deputy High Court Judge had nonetheless refused permission for the introduction of other arguments which could have been, but were not, raised, at the inquiry and which would have necessitated factual inquiry:

The same point about the significance of factual inquiry was made in Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028:

Turning to the facts and circumstance of the present case.

Firstly, as per the stipulation of Holgate J in Trustees of Barker Mills, I have examined the nature of the point raised and I have concluded that, in my judgment, 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. In South Oxfordshire, the Judge identified the omission of a material consideration as a scenario in which the Inspector’s decision could be rendered unlawful notwithstanding that the point had not been raised in representations.

Secondly, the point was raised at the inquiry. It was raised by Mr Gerhold. The Inspector’s decision letter records that 131 written representations were received at the appeal stage. He summarises the representations including the following:

I was provided with a copy of Mr Gerhold’s written objection which states as follows:

In my view, Mr Mould is in difficulty therefore in submitting that the point was not before the Inspector. It was before the Inspector, albeit it in modest fashion, via written representations and not from one of the main parties. Mr Mould sought to rely on Dr Gerhold’s assessment of the point as “not be[ing] in strict terms a planning matter”. Dr Gerhold is, however, a historian not a lawyer. Moreover, the implication of Mr Mould’s submission is that the views of members of the public attract less weight. This runs contrary to the recognised importance of the public to participate in environmental decision making (see for example the UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters). Procedural fairness at a planning inquiry requires the Inspector to consider significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the Inspector expressly states that they need not do so. To hold otherwise would undermine the value of public participation in environmental decision making (Hopkins Developments Ltd v Secretary of State for Communities and Local Government[2014] PTSR 1145 and Secretary of State v Claire Engbers) [2016] EWCA Civ 1183))

Thirdly, the Secretary of State, the applicant for planning permission, was on notice of the point and could reasonably have anticipated that it might be material. On 31 July 2019, the Trust’s solicitors wrote to the Secretary of State contending that locating the Memorial in the Gardens would breach s. 8(1) of the 1900 Act:

The Secretary of State replied on 31 October 2019, stating that the provision of the memorial complied with the 1900 Act:

In May 2020, the Trust raised the same point in pre-action correspondence in relation to the call in of the application:

The Government Legal Department replied as follows:

My attention was also drawn to the following question asked in Parliament of the Secretary of State in March 2019:

In HJ Banks & Co Ltd v Secretary of State [1997] 2 PLR 50, Lord Woolf was prepared to accept that:

For the reasons set out above, in the facts and circumstances of the present case, I consider it proper, as a matter of my discretion, to allow the point to be raised.

Accordingly, in conclusion on Ground 3, in my judgment, Section 8(1) of the 1900 Act imposes an enduring obligation to retain the new garden land as a public garden and integral part of the existing Victoria Tower Gardens. The potential impediment to delivery of the scheme is a material consideration which was not considered at the inquiry.

Ground 3 succeeds.

The principles on whether alternative sites are an obviously material consideration which must be taken into account are well established. Where there are clear planning objections to development then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it (Trusthouse Forte v Secretary of State for the Environment (1987) 53 P & CR 293 at 299-300).

These principles are of obvious application in the present case. As was common ground, locating the Memorial in Victoria Tower Gardens will give rise to harm to the setting of the Buxton Memorial and, as a consequence, the Registered Park and Garden. The potential of the Imperial War Museum to deliver the acknowledged benefit of the Memorial at a location that will arguably avoid that harm or at least lessen it to a material degree is a material consideration. The Inspector acknowledged the point at IR15.164:

However, the Inspector went onto express caution about the prospect of alternative sites:

This extract formed the basis of Mr Drabble’s submission under this ground. He submitted that the passage demonstrates an error of law in that it places a burden of proof on an objector to demonstrate the existence of a feasible alternative scheme showing how a prominent and striking memorial can be provided with less harm than at Victoria Tower Gardens. The application of the error is said to be evident in the Inspector’s conclusion that the weight to be afforded to the Imperial War Museum site as an alternative in the planning balance is “very limited” as, “whilst seeming to offer a benign alternative, it lacks a detailed scheme that would meet the core requirements of the HMC and carries clear potential constraints that may hamper its delivery” (IR15.169). There is, Mr Drabble submitted, no legal requirement or burden of proof on an objector to identify and establish the existence of a specific site as a preferable alternative before an application can be refused on the basis that a particular need can be satisfied elsewhere (Trusthouse Forte at 300-301 and South Cambridgeshire DC v SoSCLG [2009] PTSR 37). In the context of a proposal such as the Memorial, and the site selection process that proceeded it, the burden placed on any objector may well prove impracticable to discharge. The particular facts of this case and the concerns around the lack of transparency in the site selection exercise meant this was a case where the burden in relation to alternative sites was firmly on the developer because of the site selection process. The Secretary of State had it in his power to produce detailed schemes but did not do so. On the very specific facts of this case the Inspector’s reliance on the absence of detailed schemes for the alternative sites was unlawful.

Case law provides that the extent to which it will be for the developer to establish the need for his proposed development on the application or appeal site rather than for an objector to establish that such need can and should be met elsewhere will vary and is a matter of planning judgment (Trusthouse Forte at 301). The point is amplified inR (Langley Park School for Girls Governing Body) v Bromley London Borough Council. In that case Sullivan LJ referred to Trusthouse Fortewhen considering when it may be necessary to identify a specific alternative site and said at [52] – [53]).

I did not understand Mr Drabble to dispute the proposition that the issue is a matter of planning judgment. His complaint focuses on the alleged impermissibility of an escalation by the Inspector of a matter of planning judgment to a hard-edged principle which places the burden of proof on an objector.

Before turning to alternative sites, the Inspector considered the suitability of Victoria Tower Gardens as the proposed location for the Memorial:

On behalf of Learning from the Righteous, Mr Simons sought to distinguish the present case from other case law on alternatives. The depth and profundity of meaning in locating the Memorial in Victoria Tower Gardens, next to the Houses of Parliament, is exceptional. The Inspector found, he submitted, that the Memorial will not function in the same way or fulfil the same purpose in a different location. This amounts to a material distinction from the many examples in the authorities. Thus: Trusthouse Forte Hotels Ltd v Secretary of State for the Environment(1987) 53 P. & C.R. 293 was about a proposal for a new hotel near Bristol; R(Mount Cook Land Ltd) v Westminster City Council[2017] P.T.S.R. 1166 concerned external alterations to a department store on Oxford Street in London; R (Save Stonehenge World Heritage Site Limited) v Secretary of State for Transport[2021] EWHC 2161 (Admin) was about the construction of a new route for the A303 in Wiltshire; R (J (A Child)) v North Warwickshire BC [2001] P.L.C.R. 31 was about a proposal for eight affordable bungalows for older people; Derbyshire Dales DC v Secretary of State for Communities and Local Government[2010] 1 P. & C.R. 19 concerned a proposal for 4 wind turbines; and R (Langley Park School for Girls Governors) v Bromley LBC[2010] 1 P. & C.R. 10 was about re-building a school in Kent. These examples - a hotel; school building; affordable bungalow; wind turbine – may be located in any number of places and still function in the same way.

I accept Mr Simons’ submission that the depth of meaning associated with locating the Holocaust Memorial next to the Houses of Parliament sets the present case apart from the other case law on alternatives put before the Court. The Inspector accepted that the proposed location in Victoria Tower Gardens meets the core expectations of the recommendations of the Holocaust Commission’s report. Its location would help the scheme to make a “clear and unequivocal statement about the degree of importance we as a nation place on preserving the memory of the Holocaust” which would “readily serve as a focal point for its national commemoration”. He accepted that there is an explicit and direct relationship between the significance and prominence of any given site and the value and status that individuals assign to the events commemorated (IR15.157). The Scheme’s location next to Parliament in a place of “national and indeed international importance” was found to be justified (15.158). The Inspector continued in the same paragraph that: 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.” Nonetheless; I did not understand Mr Simons to be proposing a new legal proposition to reflect the distinction. The matter remains one of planning judgment for the Inspector who found in this case that the location in Victoria Tower Gardens merits considerable weight. I agree with Mr Simons that this sets the context for the exercise of his planning judgment in the consideration of alternative sites for the Memorial.

Having reached his conclusion on the suitability of Victoria Tower Gardens, the Inspector made the following observation in which he accepted the relevance of alternative sites:

He further directed himself on the materiality of alternative sites at IR 15.164 whilst expressing caution about the prospect of alternative sites, which, as mentioned, formed the basis of Mr Drabble’s submissions on this ground:

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).

Mr Drabble’s case on this ground is based on one sentence in IR 15.64 by which he seeks to derive a quasi-legal test said to be applied by the Inspector, at IR 15.69. The Courts have on many occasions cautioned against a forensic and overly legalistic focus on individual sentences in the context of, as in this case, a lengthy, sophisticated and nuanced report. The Report must be read as a whole and in proper context.

In this respect, the key building blocks to the Inspector’s approach to alternative sites were as follows:

I am not persuaded that the Inspector fell into the error suggested by Mr Drabble in impermissibly elevating a matter of planning judgment into a hard-edged principle about the burden of proof in relation to alternative sites. The first to third sentences of IR 15.64 are unobjectionable and the Trust makes no complaint about them. Mr Drabble focusses on the fourth sentence “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]”. However, at the end of the sentence, the Inspector inserts a footnote and two cross references. Thefootnote refers to Trusthouse Forte Hotels Ltd v Secretary of State for Environment (1987) 57 P. & C.R. 293. The first cross-reference is to IR 8.62 where the Inspector records Westminster Council’s submission, supported by the Council’s reference to Trusthouse Forte, that the absence of detailed and worked up alternatives before the inquiry is not a reason for discounting alternative sites:

He also cross-referred to IR 9.65 recording the submission by the Trust, made again by reference to Trusthouse Forte that “[i]t is not accepted that the existence of an alternative proposal or site is only a material consideration if there is a specific scheme in existence (such as occurs in a conjoined planning appeal or otherwise)”.

The Inspector’s approach accords with Trusthouse Forte and reflects “the spectrum” explained in Langley Park per Sullivan LJ at [52] – [53] that “how far evidence in support of [a] possibility, or the lack of it, should have been worked up by the objectors or the applicant for permission [are] all matters of planning judgment”. His approach at IR 15.164 is anexample of the application of planning judgment to that question as it arose in the case before him. He expressly recognises that it is not necessary for a specific alternative site to be placed before the inquiry ( “though not always essential”) before indicating, unremarkably, that the weight to be given to a proposed alternative will be affected by the evidence of its credibility and viability as an alternative vehicle to meet the need for which the proposed development has been brought forward. The Trust does not identify any authority for the proposition that the credibility and viability of delivery of a proposed alternative is not relevant to the evaluation of an alternative site. It is simply as aspect of the Inspector’s planning judgment.

Accordingly, I accept Mr Mould’s submission that it is incorrect to characterise the Inspector’s approach as being to place a burden on objectors to produce a detailed scheme for an alternative location for the proposed development. In the light of the authorities, it was legally permissible for him to evaluate the strength of the case for rejecting the planning application before the Minister by considering (amongst other matters) the level of information before him on proposed alternative schemes, including the extent of the evidence in support of a particular alternative site when determining the weight to be afforded to that alternative in the planning balance.

In short, the Inspector accepted that the benefits associated with locating the Holocaust Memorial in Victoria Tower Gardens simply could not be achieved elsewhere or within the same timescale. I accept the submissions by Mr Mould, Mr Katkowski and Mr Simons that, properly understood, the challenge on this ground is an attack on the weight which the Inspector afforded to the alternative site at the Imperial War Museum. In this context, Mr Katkowski took the Court to various references to weight by the Inspector in his assessment of alternatives (IR 15.165; 15.122; 15.126, 15.169 and 15.189.) I also note that the Inspector visited the sites proposed as alternatives and his site visit to the Imperial War Museum was informed by a conceptual design in the Environmental Impact Statement and a comparative analysis which assessed the competing claims of alternative sites. I remind myself that where an Inspector’s conclusions are based on impressions received at a site visit, anyone seeking to question those conclusions faces a particularly daunting task (R (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC 74 (Admin) at [8]).

As advanced by Mr Drabble, Ground 4 therefore fails. However, 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.

On behalf of the Trust, Mr Drabble submitted that the Court should conclude that the erection and use of the proposed Memorial would plainly contravene the terms of section 8 of the 1900 Act including placing the Secretary of State in breach of the continuing statutory obligation under section 8 to maintain the new garden land as a garden open to the public and an integral part of Victoria Tower Gardens. In his submission, the appropriate remedy is for the Court to quash the decision.

For the Secretary of State, Mr Katkowski submitted that, in the event that the Court agreed with the Trust on the point of statutory construction this could not justify quashing the decision as to do so would be wholly disproportionate in relation to a point that wasn’t even argued by the Trust at the inquiry. At most, the Court should issue a declaration as doing so would leave the ability to remove the obstacle by repealing the relevant remaining provisions of the 1900 Act.

Section 288(5) of the Town and Country Planning Act defines the relief available on an application under the section in the event the Court is satisfied of the unlawfulness of a relevant decision. The Court’s discretion extends to a quashing order, not a declaration.

In considering the exercise of my discretion, I take into account the existence of an Act of Parliament (the 1900 Act) which specifically regulates the land in question and the statutory basis on which the land must be held (a public garden).

In assessing the suitability of the Gardens and in placing little weight on alternative sites, the Inspector placed considerable weight on the timing of deliverability of the Scheme. In his submissions on Ground 4 (alternative sites), Mr Katkowski described the timing aspect of deliverability as a ‘powerful’ aspect of the Inspector’s analysis. However, the Inspector did so without any appreciation of the deliverability issue raised by the 1900 Act.

I was not addressed on the mechanics of if, how or when the 1900 Act might be repealed. Mr Drabble posited that it may require hybrid legislation. It was not disputed that the issue raises factual questions of some difficulty and detail which may require exploration of the relative speed of delivery of each site.

Mr Drabble submitted it is plain that the proposed scheme will breach the requirements of the 1900 Act, which are that the land be retained as a public garden and integral part of Victoria Tower Gardens. He pointed to the requirement in section 8(6) for uniformity of design in the Gardens.

Mr Katkowski pointed me to passages of the Inspector’s report which he submitted demonstrated a measured, sensible and nuanced assessment of the likely impact and overall position in relation to the Gardens from the proposals, leading to a conclusion that the Gardens would continue to function as a garden for the public. However, the passages in question do not address the impact in the context of the provisions of the 1900 Act (integral garden; public use; uniformity of design). Moreover, the Inspector’s assessment includes the following analysis:

Given this assessment, it cannot be said that the existence of the 1900 Act makes no difference to the outcome of the decision. On the information before the Court, Mr Drabble’s contention is a proper one with real prospects of success. Accordingly, the appropriate remedy is to quash the decision, so as to enable further consideration of the implications of the London County Council (Improvements) Act 1900 for the proposed scheme.

For the reasons explained above, the claim fails on Ground 1 (heritage impacts) but succeeds on Ground 3 (London County Council (Improvements) Act 1900) and on Ground 4 (alternative sites), to the extent that the Inspector’s assessment of alternative sites was conducted without an appreciation of the implications of the London County Council (Improvements) Act 1900. The Minister’s decision is quashed.

After the judgment was circulated in draft to the parties, the Court received applications for permission to appeal from the Minister and the Secretary of State. Submissions in response were filed by the Trust. Having considered the submissions carefully, I refuse permission to appeal for the following reasons.

I am not persuaded that the submissions made by the Minister in relation to the construction of the 1900 Act raise points with a real prospect of success. Section 8(1) of the Act provides that the land “shall be laid out and maintained...for use as a garden open to the public”. Section 8(1) remains in force. It is the use (as a public garden) that has to be maintained, not just its physical characteristics.

Mr Mould seeks to draw an analogy between provisions in the 1900 Act, which predates modern planning control, which regulate the performance and future maintenance of the improvement works, with conditions in a modern planning permission which state and define the ambit of the planning control. However, unlike the modern planning Acts, section 8 of the 1900 Act is specific to Victoria Tower Gardens. The historical context revealed by the passage of the Act, which the appeal submissions do not address, is clear. It supports the construction of section 8(1) as imposing an enduring restriction on the use of the land. Victoria Tower Gardens is an example of land with a statutory restriction (like, for example, much of National Trust land may be declared inalienable, pursuant to Act of Parliament). Any change to its use as a public garden requires parliamentary approval. If recourse may be had to pre-legislative material for meaning, then the reference in the Report of the Improvements Committee (13 March 1900) to the land being kept as a garden for the use of the public forever’ puts the matter beyond doubt. Given the detail available in the archival material, one would have expected to see a great deal written on the matter, had the ‘forever’ point been controversial.

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.   

On the unusual facts of this case, the 1900 Act was a material planning consideration, for the reasons explained in paragraphs 110, 111, 143, 149 and 154 of the judgment. The Act affects the deliverability of the Memorial in Victoria Tower Gardens and the desirability of implementing the Memorial within a reasonable timescale was an integral part of the Inspector’s reasoning.

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