THE LONDON HISTORIC PARKS AND GARDENS TRUST v THE MINISTER OF STATE FOR HOUSING & Anor.

In a statutory planning review, whether heritage harm is substantial is a matter of fact and planning judgment. The NPPF imposes no single method of assessment, and references to significance being drained away do not create an additional legal test. The court should respect the planning decision-maker’s evaluative judgment unless there is an error of law.

A statutory obligation requiring land to be maintained as a public garden may impose an enduring restriction on its use. Where deliverability and timing are important planning benefits, the statutory impediment is a material consideration that must be addressed. Alternative sites may also be material, but their viability and credibility are matters of planning judgment, not a rigid burden of proof.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of the Minister’s decision to grant planning permission for a Holocaust Memorial and Learning Centre in Victoria Tower Gardens, adjacent to the Palace of Westminster.

The challenge concerned the Inspector’s assessment of harm to the Buxton Memorial and the Grade II Registered Park and Garden, the effect of section 8 of the London County Council (Improvements) Act 1900, and the treatment of alternative sites, particularly the Imperial War Museum.

The Minister had accepted the Inspector’s report and recommendation. The central questions were whether the Inspector had applied the correct substantial-harm test, whether the 1900 Act imposed an enduring restriction on the land’s use, and whether alternative-site evidence had been assessed lawfully.

Disposition. Ground 1 failed. Ground 3 succeeded, and Ground 4 succeeded to the extent that the alternative-site assessment had not addressed the implications of the London County Council (Improvements) Act 1900. The Minister’s decision was quashed.

1. Heritage harm. The court applied the statutory-review principles summarised in St Modwen Developments Limited v Secretary of State for Communities and Local Government [2011] EWCA Civ 1643. The Inspector had formulated the relevant question as whether there was a serious degree of harm to the asset’s significance. That was an unimpeachable formulation. The assessment of substantial harm remained a matter of fact and planning judgment. Following City & County Bramshill Limited v Secretary of State [2021] 1 WLR 5761, the NPPF did not prescribe a single methodology. The Inspector’s references to Bedford Borough Council v Secretary of State [2013] EWHC 2847 (Admin) were a cross-check, not the imposition of a draining-away gloss.
2. Section 8 of the 1900 Act. On its ordinary meaning and statutory context, section 8(1) imposed an enduring obligation to retain the new garden land as a public garden and as an integral part of Victoria Tower Gardens. Section 8(8) had the same effect and was not confined to repair or upkeep. The detailed controls in section 8(15)–(18), and the repeal preserving sections 7–9, did not displace that obligation.
3. Material consideration and procedure. The statutory restriction affected the deliverability and timing of the proposal, to which the Inspector had attached considerable weight. It was therefore a material consideration that had not been addressed. There was no absolute bar to raising the point for the first time on statutory review. The point had, in any event, been raised by a third party and the applicant had been put on notice. Procedural fairness required significant issues raised by third parties to be considered.
4. Alternative sites. Alternative sites were potentially material. The Inspector was entitled to assess their credibility and viability, and the extent of evidence required was a matter of planning judgment. He had not imposed an unlawful hard-edged burden on objectors. However, the assessment had proceeded without considering the statutory impediment affecting the proposed site.
5. Remedy. Under section 288(5) of the Town and Country Planning Act 1990, quashing was appropriate because the court could not conclude that the 1900 Act made no difference to the outcome.