Holocaust memorial challenge opens

Court says it's not concerned with rights and wrongs of the proposal

A High Court judge has begun hearing a challenge brought by opponents of the government’s planned Holocaust memorial in central London. The London Historic Parks and Gardens Trust, a small charity that works to enhance the capital’s green spaces, is seeking judicial review of the government’s decision-making process.

The claimants are not opposed to a memorial. But they argue that Victoria Tower Gardens, a Grade II-listed park adjoining the House of Lords, is the wrong place for it.

If planning permission is granted, the memorial would look like this:

Introducing the trust’s case at a remote hearing this morning, John Howell QC stressed that the court was not concerned with the merits of the planned memorial. His argument was that the UK had failed to transpose the relevant EU directive into domestic law.

The government — which has said it is “implacably committed” to construction of the memorial in Westminster — argues that it has complied with EU law.

Robert Jenrick MP, secretary of state for housing, communities and local government, “called in” the application for planning permission last November — which means that the decision will be taken centrally rather than by the local authority, Westminster City Council.

Howell argues that Jenrick has created a “stark conflict of interest” by “calling his own application in for his own determination and by subsequently declining to take any steps (as he was invited to do) to entrust the decision on the application to an independent inspector (as an appeal against any decision by the city council would have been)”.

Mr Justice Holgate said there had been considerable public interest in the case. The judge stressed that he was not concerned with the rights and wrongs of the proposal. He acknowledged that some people would regard arguments about whether a directive had been adequately transposed as “rather arid”.

The case concerns article 9a of Directive 2011/92/EU on environmental impact assessment (inserted by Directive 2014/52/EU). That says:

Member States shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.

Where the competent authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from this Directive.

Howell argues that where, as here, a government minister is both the developer and the competent authority, there must be separation between the two conflicting functions.

The directive was transposed into domestic law — before the UK left the EU — by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.

Regulation 64 says:

(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest.

(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.

Howell argues that the regulation fails to provide a framework of of specific legal rules to guarantee functional separation between different parts of the relevant authorities.

Jenrick’s counsel, Tim Mould QC, argues that Howell’s main claim — “that proper transposition of the directive requires domestic regulations to establish a specific framework of legal rules to ensure the functional separation of the decision-making part of the authority” — is wholly unfounded. He says:

1. Article 9a does not state such a requirement. Instead, it identifies an objective — an appropriate separation between conflicting functions; and a means of achieving it — within the organisation of administrative competencies.

2. The relevant decision of the EU Court of Justice — Department of the Environment for Northern Ireland v Seaport (NI) Ltd — supports the approach taken by regulation 64(2) of the Environmental Impact Assessment Regulations. In particular, the Court of Justice endorsed administrative arrangements (as opposed to legal rules) as sufficient in principle to secure functional separation within a public authority in the field of environmental assessment.

3. The relevant legal framework in England ensures that appropriate administrative arrangements are able to achieve the objective of an appropriate separation between conflicting functions — thus enabling the minister of state for housing, Christopher Pincher MP, to perform the duties arising from the directive and the regulations in an objective manner and avoiding a conflict of interest.

4. If the claimant is correct, this would have wide-ranging ramifications across the domestic planning system. It is established, common practice throughout planning decision-making in England that where a local authority or central government body is both the decision-maker and has an interest in the application, the separation of conflicting functions to fulfil statutory, common law and Environmental Impact Assessment Directive requirements for objective decision-making is ensured through administrative arrangements.

This is what’s called a “rolled-up” hearing, which means the judge will deal with permission at the same time as he rules on the substantive issue.

The hearing is expected to conclude tomorrow. Holgate is likely to reserve judgment, delivering a written ruling at a later date.

I discussed some of these issues in a column published in July. In that piece, I said I fully supported the idea of a new Holocaust memorial and learning centre in London. But, in my view, this was not the right location.

“Right idea, wrong place” remains my view.

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