Wrong place, right ruling
Judge blocks memorial to the dead after historian brings the law to life
Overturning the grant of planning permission for the construction of a Holocaust memorial in a park adjoining parliament, Mrs Justice Thornton rightly said this morning 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”.
As I mentioned in a piece nearly two years ago, I have better reason than many for supporting a new Holocaust memorial and learning centre in London. But, as I also argued at the time, Victoria Tower Gardens is not the right place for it.
There are also more profound objections, which Melanie Phillips (in whom I declare an interest) explores in her piece today.
So I can properly describe Dr Dorian Gerhold, a historian and a House of Commons clerk from 1978 to 2012, as the hero of the day. If the government accepts defeat and thinks again, perhaps a small plaque bearing Gerhold’s name could be added to the gardens’ Buxton memorial fountain. There should also be room to mention Richard Buxton, the objectors’ solicitor and a great-great-great grandson of the MP in whose honour the memorial was built.
Thornton began her judgment with a point that is sometimes overlooked these days:
It is important to emphasise that the merits of the memorial’s proposed location in Victoria Tower Gardens are not a matter for the court. Its location there may raise matters of legitimate public debate but they are not matters for the court to determine. The role of the court in judicial review is concerned with resolving questions of law and ensuring that public bodies act within the limits of their legal powers.
She then turned to the issues. At this point, new readers may care to glance at the preview I published ahead of the hearing in February.
The London Historic Parks and Gardens Trust, a small charity that works to enhance the capital’s green spaces, was given permission to appeal against planning permission on two grounds. Their arguments on those grounds were effectively dismissed today.
It also renewed its application for permission to appeal on a third ground, previously rejected:
that the minister failed to address the London County Council (Improvements) Act 1900, which says the land chosen for the memorial “shall be laid out and maintained in manner hereinafter provided as a garden [which is] open to the public and as an integral part of the existing Victoria Tower Garden”.
Permission was granted by Thornton on this ground and it proved to be the winning argument. She found that section 8 of the 1900 act, a private act of parliament which is still in force, “imposes an enduring obligation to lay out and retain the… land for use as a public garden and integral part of the existing Victoria Tower Gardens”.
That view was endorsed by Gerhold’s research into late 19th-century minutes of the London County Council improvements and parliamentary committees, the Westminster Vestry and a letter from the then government’s First Commissioner of Works. The judge set the historical material out in some detail before saying this:
The archived documents uncovered by Dr Gerhold bring the preamble to section 8 of the act to life. In particular, they demonstrate that the use of the land in question for a garden was a central part of negotiations during the passage of the 1900 act. As the First Commissioner explained in his letter of 14 December 1899, the “public benefit” of a public garden “was, in the mind of the First Commissioner, one of the principal considerations in favour of giving up a strip of the existing garden”.
Could the judge rely on minutes of a committee dealing with a private bill? She had not been addressed on the point:
However, to the extent the court is able to rely on the pre-legislative material to elucidate meaning (in addition to context) then, in my view, it provides strong support for the interpretation I have arrived at on the basis of the wording of section 8.
But, complained the minister, the inspector who had recommended the grant of planning permission had not been told about the 1900 legislation. “The inspector cannot be criticised for not considering a matter which the trust did not raise when it had the opportunity to do so.”
It was raised at the inquiry, the judge pointed out. It was raised in terms by Gerhold, who was one of 131 people or organisations who sent in written representations:
Procedural fairness at a planning inquiry requires the inspector to consider significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the inspector expressly states that they need not do so. To hold otherwise would undermine the value of public participation in environmental decision-making.
What’s more, the trust’s solicitors had alerted the secretary of state to the point on several occasions — only for the government to reject it.
The judge found she had power to allow the point to be raised at this stage and she decided it in favour of the objectors:
Section 8(1) of the 1900 act imposes an enduring obligation to retain the new garden land as a public garden and integral part of the existing Victoria Tower Gardens. The potential impediment to delivery of the scheme is a material consideration which was not considered at the inquiry.
Planning permission was quashed.
What happens next?
Decisions such as these are sent to the parties in advance so they can be checked for typos and factual errors. That has led to a number of leaks in recent cases. Fortunately, that did not happen here. Before judgment was delivered today, permission to appeal was sought by the government, opposed by the trust and refused by the judge.
The government could now ask the Court of Appeal for permission to appeal. Alternatively, it could ask parliament to repeal section 8 of the 1900 act — though that could be tricky and might require hybrid legislation. A new planning inquiry might then be needed.
Or it could just stop and think again. If the government had chose to build the memorial and learning centre at the Imperial War Museum — clearly the most appropriate location — it would have been open by now.
A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.