The judgment acknowledged that 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 the Holocaust Commission’s Report “Britain’s Promise to Remember” . Many of the Trust’s supporters are Jewish people whose families were either forced to flee the Holocaust or who perished in it.
But the issue dividing the parties was the proposed location of the Memorial in Victoria Tower Gardens with its considerable cultural, historical and heritage significance as being a Grade II Registered Park and Garden and forming part of the Westminster Abbey and Parliament Square Conservation Area and providing the setting for 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 challenge was brought on three grounds:
(1) That the Planning Inspector and Minister applied the wrong legal test to the issue of whether there will be “substantial harm” to the heritage assets within the Gardens. The correct application of the test would have led inevitably to the conclusion that the harm to the significance of the Buxton Memorial Fountain (listed Grade II*) was substantial and would have led in turn to a different test under the terms of the NPPF for the acceptability of the proposal;
(2) That the Inspector and Minister failed to address the provisions of the London County Council (Improvements) Act 1900, which provides that “[the southern part of the gardens] shall be laid out and maintained in manner hereinafter provided for use as a garden open to the public and as an integral part of the existing Victoria Tower Garden…”, imposes prohibition on using the Gardens for the provision of the Memorial in the manner proposed;
(3) That the Inspector and Minister erred in law in considering that, in order to attract significant weight, the merits of any alternative sites (such as the Imperial War Museum) must be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative – since such a test would impose on an objector such as the Trust a burden which it would in practice be almost impossible to discharge.
Under Ground (1) the Trust submitted that the issue of what constituted “substantial harm” 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  EWHC 2847 (Admin) at  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” – when 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. The Trust submitted that it was apparent from the Inspector’s Report that this is what has happened in this case.
The Judge nevertheless concluded that the Inspector (with whom the Minister agreed) ultimately came to his own interpretation of the relevant test for “substantial harm” which he expressed as a “serious degree of harm to the asset’s significance.”
So she disallowed the Claimant’s application on this ground.
On Ground (2) the Judge rejected the Minister and Secretary of State’s contentions that the obligation was discharged by the laying out of the Gardens and that their future use was a matter within the discretion of those charged with maintaining it. She held that the Act imposed an enduring obligation to lay out and retain the new garden land as a public garden and an integral part of the existing Victoria Tower Gardens. It was not an obligation which was spent once the Gardens had been laid out so that the land could be turned over to some other use or be developed or built upon at some point after it had been laid out whenever it suited those subject to the obligation.
The Judge also rejected the submission that the Act should not be treated as a material consideration since it was not put forward as a main issue by the Trust at the inquiry. Cases such as South Oxfordshire DC v Secretary of State for the Environment Transport and the Regions  2 All ER 667 showed that there was no general rule preventing a party from raising an argument in a section 288 challenge that was not advanced by the party before the Inspector. Even though restrictions in statutes were ordinarily not material considerations which the planning decision maker is obliged to consider, as in R v Solihull Borough Council, Ex parte Berkswell Parish Council (1999) 77 P. & C.R. 312 on the Berkswell Enclosure Act 1802, the distinguishing feature of this case was the Inspector and the Minister’s reliance on the importance of implementing the proposals within the lifetime of remaining holocaust survivors “as a material consideration meriting considerable weight”. If the 1900 Act was a potential impediment to timely implementation then that was not a matter taken into account. In accordance with HJ Banks & Co Ltd v Secretary of State  2 PLR 50, the Judge exercised her discretion to allow the point to be raised. (She also observed that the point about the Act had in fact been made by at least one party to the inquiry and in correspondence on behalf of the Trust and other objectors before it).
She therefore allowed the Claimant’s application on this ground.
On Ground (3), the Judge acknowledged the familiar principle in that, in cases such as Trusthouse Forte v Secretary of State for the Environment (1987) 53 P & CR 293, 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. The Judge held that those 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.
But the Judge was not persuaded that the Inspector fell into the error suggested by the Trust in impermissibly elevating a matter of planning judgment into a hard-edged principle about the burden of proof in relation to alternative sites. She held that he had adequately addressed the debate on the available alternatives. However, since she had concluded that the 1900 Act imposed an enduring statutory obligation to maintain Victoria Tower Gardens as a public garden, that was 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 but which was not taken into account as part of his assessment of the merits of the application site and the alternatives.
As a consequence, to that extent, the ground succeeded as well.
Finally, the Judge rejected a submission by the Secretary of State that, rather than quashing the decision, she should merely grant a declaration. She pointed out that 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 her discretion, she took 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, ie as 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 application proposals. However, the Inspector did so without any appreciation of the deliverability issue raised by the 1900 Act.
Both the Minister and the Secretary of State applied for permission to appeal against the Judge’s judgment but this was refused.
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.