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Section 288 Challenge to Planning Permission for Holocaust Memorial and Learning Centre on Heritage and Other Grounds – “Right idea, wrong place”

Douglas Edwards QC
Meyric Lewis
Charles Streeten

The London Historic Parks and Gardens Trust, known popularly as the London Gardens Trust, has launched a challenge to the Minister of State’s decision dated 29 July 2021 to grant planning permission for the United Kingdom Holocaust Memorial and Learning Centre in Victoria Tower Gardens, a Registered Park and Garden immediately to the south of the Grade I listed Houses of Parliament and immediately adjacent to the Palace of Westminster and Westminster Abbey UNESCO World Heritage Site.

The Trust appeared as a Rule 6 party in the inquiry held under section 77 of the Town and Country Planning Act 1990, making a joint case with the Thorney Island Society, the local amenity society, and the Save Victoria Tower Gardens Campaign.

As part of their case, they 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 and on the availability of a site at the Imperial War Museum as an alternative location for the application proposals.

The Trust was also the claimant in the High Court judicial review of the Secretary of State’s decision-making arrangements proposed for the determination of the application before the inquiry, London Historic Parks and Gardens Trust v. SoSHCLG [2020] EWHC 2580 (Admin).


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.” The Holocaust Commission Report, after studying the available options, identified three individual Central London sites (the Imperial War Museum, Potter’s Field and Millbank) which were all regarded as fulfilling the Commission’s objective to provide “a striking new memorial… prominently located in Central London”. In September 2015, the UK Holocaust Memorial Foundation published a site briefing entitled “Search for a Central London site” inviting submissions of suitable Central London sites. Around the same time, the Foundation commissioned CBRE to conduct a site search for a suitable site and they identified three further Central London sites.

However, in January 2016, the then Prime Minster (David Cameron) announced that the “memorial will be built in Victoria Tower Gardens”. Victoria Tower Gardens was only settled on as a location, despite its inherent unsuitability for development, in what was described in the inquiry as “a moment of genius”, as a location for the memorial in a closed meeting in January 2016, uninformed by any professional or evidential reports to support the choice of location and without any public consultation as to its suitability, acceptability or desirability. The initial suggestion of Victoria Tower Gardens as a location seems to have come from Lord Feldman in correspondence in October 2015, and saying that the Prime Minister was aware of the proposal, although at that stage it was envisaged that the learning centre would be located nearby.

Victoria Tower Gardens lie on the banks of the Thames to the south of and immediately adjacent 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 Victoria Tower Gardens and includes St John's Smith Square church (Grade I listed), visible from within the park. 

It is hard to think of a more sensitive area in terms of its cultural, historical and heritage significance.

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 [by then] Learning Centre” for Victoria Tower Gardens.

The Secretary of State made its application for the proposals to Westminster City Council as local planning authority in January 2019.

In April 2019, revisions were made to the application including adjustments to the basement footprint of the Learning Centre to move it further away from the mature plane trees on the western boundary of the park.

The application proposals comprise a single storey entrance pavilion; a Memorial courtyard enclosed by rails, hedges and boundary glazing, and the Memorial itself; a below-ground Learning Centre; the re-provision of Horseferry Playground and refreshments kiosk; the relocation of the Spicer Memorial; and landscaping and public realm works including a mound over the Learning Centre, boundary treatments, re-laying of existing paths and provision of new pathways, the provision of an accessible boardwalk on the Embankment and planting and ground drainage works.

As described in the Inspector’s Report on the application, “The Memorial would comprise 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 would create 22 pathways into and from the LC below, symbolising the origins of Jewish communities destroyed during the Holocaust. The Memorial would bring together three key materials – bronze, stainless steel and stone. The fins would be clad in bronze panels of varying thicknesses. The sloping soffit/ceiling between the fin walls and beneath the landform would be clad in elongated panels of polished stainless steel. The Memorial stairs and the threshold floor below would be clad with silver-grey limestone”.

On 5 November 2019, the Secretary of State called in the application for his own determination, rather than leaving it to be determined by the City Council. In fact, the City Council carefully considered the matter in February 2020 and decided that it would reject the proposals if it were the decision maker. 

The Trust, and the parties with whom they made common cause, confirmed in the inquiry that they were not opposed to the principle of an appropriate memorial to the horrors of the Holocaust. Indeed, many of their supporters are Jewish people whose families were either forced to flee the Holocaust or who perished in it. Their position was summed up in the phrase “Right idea, wrong place”.

But they nevertheless opposed the location of the proposals in Victoria Tower Gardens given their numerous and fundamental objections to them including those referred to above and given that the proposals represent an exceptionally serious intrusion into a green public open space of the highest heritage significance.

The Grounds of Challenge 

Ground 1 challenges 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). 

Ground 2 challenges the Inspector and Minister’s assessment of the harm to the Gardens as a Registered Park and Garden. The Inspector failed to identify the nature of the historic or aesthetic interest of the Gardens or to recognise that on his factual findings these were clearly harmed.

Ground 3 challenges 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 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.

Ground 4 challenges the approach to the consideration of alternative sites - an error compounded by the Minister’s erroneous approach to the meaning of “substantial harm” to heritage assets.

Ground 5 challenges the Minister and Inspector’s conclusions on the risk of harm to the plane trees on the western side of the park which play a central role in enhancing the setting of the Gardens and the heritage assets situated in and around them. 

The decision on the Trust’s section 288 permission application is awaited.

Meyric Lewis appeared in the inquiry for the Trust and their fellow Rule 6 Parties.

Douglas Edwards QC and Charles Streeten appeared for Westminster City Council at the public inquiry.