The Holocaust Memorial and Learning Centre JR being brought by the London Parks and Gardens Trust was heard in the High Court on 9 and 10 September (see previous post for more details).
The Claimant is a charity with a principal object of preserving and enhancing the quality and integrity of London’s green open spaces. The Claimant has been actively involved throughout the planning process on the Secretary of State's application for planning permission for the Holocaust Memorial and Learning Centre in Victoria Tower Gardens next to the Houses of Parliament and is registered as a Rule 6 party at the forthcoming inquiry. It is one of two organisations (there is also one individual, Baroness Deech) representing objectors to the proposals as Rule 6 parties, the other organisation being the local amenity society, the Thorney Island Society. That Society is a recognised local amenity society for south-east Westminster. It was an official consultee on the application made by the Secretary of State.
The central point raised in the claim for judicial review - which seeks a declaration as to the lawfulness of the intended procedure - is that certain “handling arrangements” for making a decision on the application neither (1) remedy the clear propensity for predetermination which would invalidate the decision on the application at common law nor (2) deliver the appropriate institutional separation required by EU law, given that Directive 2011/92/EU (as amended by Directive 2014/52/EU) on environmental impact assessment which, the Claimant submits, has not been properly transposed into domestic law by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 or otherwise.
The proposal for a UK Holocaust Memorial was first announced in January 2015 in the then Prime Minister, David Cameron’s, Holocaust Commission Report “Britain’s Promise to Remember”. The report stated that “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.”
In January 2016, the Prime Minster (David Cameron) announced that “this memorial will 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 “new Holocaust Memorial and Learning Centre” for Victoria Tower Gardens.
In January 2019, the Secretary of State for Housing, Communities and Local Government, Robert Jenrick MP, made an application to Westminster City Council for planning permission for the “installation of the United Kingdom Holocaust Memorial and Learning Centre including excavation to provide a basement and basement mezzanine for the learning centre (Class D1); erection of a single storey entrance pavilion; re-provision of the Horseferry Playground and refreshments kiosk (Class A1); repositioning of the Spicer Memorial; new hard and soft landscaping and lighting around the site; and all ancillary and associated works” to be located in Victoria Tower Gardens, London SW1.
Victoria Tower Gardens lie on the banks of the Thames to the south of and immediately adjacent to the Palace of Westminster and Westminster Abbey UNESCO World Heritage Site and to the Palace of Westminster itself, a Grade I listed building. The Gardens themselves are a Grade II Registered Park and Garden and form part of the Westminster Abbey and Parliament Square Conservation Area. They contain a number of statutorily listed buildings: Rodin’s Burghers of Calais (Grade I), the Buxton Memorial Fountain (Grade II*) and the Emmeline and Christabel Pankhurst Memorial (Grade II*).
Other designated heritage assets in the vicinity include: Lambeth Bridge (Grade II listed), Victoria Tower Lodge and Gates to Black Rod Garden (Grade I listed), Northwest House, Millbank (Grade II listed), The Church Commissioners (Grade II* listed) and Lambeth Palace (Grade I listed). Smith Square Conservation Area lies immediately to the west of the Gardens and includes St John's Smith Square church (Grade 1 listed), visible from Victoria Tower Gardens.
The surrounding area has an extremely large and diverse range of buildings dating from the twelfth century to modern times. The majority of the buildings within the Conservation Area are listed; however, buildings of all eras and styles contribute to its character.
The Secretary of State’s planning application is for a development which is likely to have significant effects on the environment and as such is required to be the subject of an environmental impact assessment by virtue of Directive 2011/92/EU on environmental impact assessment (as amended by Directive 2014/52/EU) and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.
On 5 November 2019, the Secretary of State exercised the power in section 77 of the Town and Country Planning Act 1990 to “call in” the application for his own determination, rather than leaving it to be determined by the City Council.
The application was due to be considered at an inquiry in May-June 2020, involving an Inspector reporting to the Secretary of State, but this was deferred due to the coronavirus pandemic. The inquiry is due to open on 6 October 2020, at which Meyric Lewis will be representing the Trust and the Thorney Island Society/Save Victoria Gardens.
The Claimant and others raised concerns about the lawfulness of the decision making procedure involving the applicant for the planning permission being the decision maker on his own application and therefore ‘a judge in his own cause’.
These concerns were expressed against the background of many statements about the Government’s, the Prime Minister’s and the Secretary of State’s commitment to the development proposed in Victoria Tower Gardens being carried out.
On 8 August 2019, the Secretary of State stated that “The National Holocaust Memorial and Education Centre has the complete and unshakeable support of the Prime Minister and I. It is a project of exceptional national significance.”
The Government’s election manifesto published on 24 November 2019 contained a commitment to “support the construction of the planned UK Holocaust Memorial”.
The Prime Minister has stated his personal commitment to its construction, saying in his speech at the Holocaust Memorial Day service on 27 January 2020 that “I will make sure we build the National Holocaust Memorial and Education Centre”.
In February 2020, when it appeared that Westminster City Council might oppose the proposed development, the Secretary of State said that “the naysayers on that project will not succeed. We will build that memorial — let me promise you that.”
On 11 February 2020, immediately before Westminster City Council considered his application, the he stated that
“the Government remains implacably committed to the construction of the Holocaust Memorial and Education Centre at the heart of our democracy, beside our national Parliament ... No one, whether in national or local government should shirk their duty to deliver on the promise of this memorial, and the Government certainly will not”.
At a meeting that evening, the City Council’s Planning (Major Applications) Sub-Committee resolved that they would have refused the application if it had not been called in by the Secretary of State. They resolved unanimously that, although the principle of a national memorial and learning centre to the Holocaust was supported, the proposed memorial and learning centre, was, because of its size, design, location and associated activity, an inappropriate form of development for reasons of harm to heritage, trees and recreational open space.
On 10 March 2020 the Secretary of State presented a note to a Pre-Inquiry meeting said to summarise certain “handling arrangements” for the determination of the called in application first put in place in November 2019. The arrangements, which were subsequently revised twice in June 2020, have never been published but redacted copies of them have been produced to the court and the Claimant in the course of the claim.
The Claimant contends that these “handling arrangements” for making a decision on the application neither (1) remedy the clear propensity for predetermination which would invalidate the decision on the application at common law nor (2) deliver the appropriate institutional separation required by EU law.
The claim was heard by Mr Justice Holgate on 9 and 10 September.
Meyric Lewis is acting for the Trust, together with John Howell QC, instructed by Richard Buxton