The grant of planning permission followed a five week call-in inquiry into proposals put forward by the Secretary of State.

The claim was brought on 3 grounds: 

(1)    A challenge to the test applied by the Inspector and the Minister who agreed with him on the issue of whether there was “substantial harm” to the heritage assets within the Gardens, pursuant to the provisions of the NPPF. The test they applied was derived in part from Bedford BC v. SoSCLG [2012] EWHC 4344 to the effect that, for the harm to the significance of a heritage asset to be regarded as substantial, the impact on significance must be such that “much, if not all, of the significance [is] drained away” . The gloss imposed by this language on the meaning of “substantial” has no justification within the test set out in the NPPF and the NPPG and has produced a major incoherence in the application of a central aspect of policy on the protection of heritage assets of the highest significance (including Grade II* listed buildings such as the Buxton Memorial).

(2)    A challenge to the approach to the consideration of alternative sites - an error the Claimant contended was compounded by the Minister’s erroneous approach to the meaning of “substantial harm” to heritage assets.

Lieven J granted permission to bring the claim, agreeing that it was arguable that the test or language in Bedford BC v. SoSCLG [2012] EWHC 4344 on “substantial harm” to heritage assets was not consistent with the NPPF/NPPG and the natural meaning of the words “substantial harm”. She considered that, since the approach in Bedford seemed to be an integral part of the Inspector’s analysis, it could not be said that the decision would have inevitably been the same in any event. The “Bedford” point was significant in numerous heritage cases recently such as the Citroen Works site (visible from Kew Gardens), the Albert Embankment Fire Station (visible from Parliament and Victoria Tower Gardens) and the Tulip (widely visible across London).

Secondly, she agreed that the way the arguments on alternative sites (such as the Imperial War Museum) had been dealt with effectively placed the burden on the claimant to produce a “detailed scheme” for consideration, which would in practice be almost impossible to discharge.

The Claimant also renewed a further ground of challenge (3) to the Minister’s failure to address the provisions of the London County Council (Improvements) Act 1900 which required the southernmost part of the gardens on which the Memorial and Learning Centre is proposed to be located to "be laid out and maintained in manner hereinafter provided as a garden... open to the public... as an integral part of the existing Victoria Tower Garden” and which the Claimant contends imposes a prohibition on using the Gardens for the provision of the Memorial and Learning Centre in the manner proposed. The 1900 Act is a specific reflection of the history and special sensitivity of the Gardens.

The case has far-reaching implications for planning decision making where heritage assets and sensitive sites and landscapes are concerned.

Thornton J heard arguments from the Claimant, the Minister of Housing (as decision maker) and the Secretary of State (as the applicant for planning permission).  Westminster City Council made written submissions in support of grounds (1) and (2).

The court’s decision is awaited.

Meyric Lewis appeared for the Trust, as he did in the call-in inquiry, instructed by Richard Buxton.  Kate Olley appeared for the Secretary of State, instructed by Tony Nwanodi of the GLD, and also appeared in the inquiry.  Douglas Edwards QC and Charles Streeten, instructed by Kirsten Chohan of Westminster CC, made written submissions to the Court in support of the claim and appeared to resist the proposals at the call-in inquiry.