In January 2016, the then Prime Minister, David Cameron, announced that a national memorial to the Holocaust would be built in Victoria Tower Gardens (“the Gardens”), next to the Palace of Westminster. Mr Cameron committed to building “a striking national memorial… to show the importance Britain places on preserving the memory of the Holocaust”. The winning design was undoubtedly striking, comprising 23 bronze ‘fins’ that rise imposingly out of the ground to create a series of narrow tunnels leading to a subterranean learning centre.

A rendition of the memorial as originally proposed

Following a public planning inquiry, the Minister of State for Housing accepted the Planning Inspector’s recommendation and granted planning permission. However, in April 2022, following a legal challenge brought by London Historic Parks and Gardens Trust (“the Trust”), the High Court ruled that the planning decision was unlawful. On 20 July 2022, the Court of Appeal refused an application to appeal that decision, with Lady Justice Andrews determining that there was no real prospect of successfully arguing that the High Court was wrong.

As Lady Justice Andrews alluded to when refusing permission to appeal, the principles underpinning this cultural and historical project enjoy widespread support. However, its siting in the Gardens does not. The project had already cost the public at least £15.2m and it is no closer to being built now than it was in October 2017, when the winning design was announced. The question therefore remains, what next for London’s embattled Holocaust memorial?

The illegality of the planning decision

 The Trust was ultimately granted permission for judicial review on three grounds, which will be discussed in turn below. In summary, the challenge failed on Ground 1, but succeeded on Grounds 2 and 3.

Ground 1: The Planning Inspector (and Minister) applied the wrong legal test to the issue of whether there would be “substantial harm” to the heritage assets already situated in the Gardens.

This ground related to the impact that the proposed memorial would have on the other listed monuments in the Gardens, particularly the Buxton Memorial Fountain (an ornate neo-gothic monument that celebrates the abolition of slavery and the work of the MP Thomas Fowell Buxton). The Inspector had determined that the harm that would be caused to the Buxton Memorial by the building of the Holocaust memorial was “well below the threshold of substantial” (para 15.69, page 160).

In response, the Trust argued that, in making that determination, the Inspector had effectively defined “substantial” in the wrong way. It argued that the Inspector had applied a test derived from the case of Bedford Borough Council v Secretary of State, i.e. that in order for harm to be considered substantial it must be demonstrated that, “very much if not all, the significance is drained away…”.  The Trust was unsuccessful on that point. The Judge found that the Inspector had not applied such a high test, but rather had considered “the serious degree of harm to the asset’s significance” and that formulation was “unimpeachable”.

Importantly from the perspective of future planning applications that involve assessing the potential harm caused to heritage assets, the Judge went further, suggesting that a test of “draining away” does not actually exist and the decision in Bedford has been misinterpreted.  To the extent that this clarification lowers the threshold for harm that can be caused to a heritage asset by a proposed building project, it should be welcomed.

Ground 2: The Inspector (and Minister) failed to address the provisions of the London County Council (Improvements) Act 1900 (“the LCC(I)A”), which creates a straightforward prohibition on using the Gardens for the provision of the Memorial in the manner proposed.

It was this ground and the provisions of the LCC(I)A that ultimately proved fatal for the Minister’s decision. Lurking within this 120-year-old piece of legislation is a requirement that the Gardens be maintained for use as a garden open to the public. The Judge found that this was an enduring obligation and therefore posed a potential impediment to the deliverability of the memorial and learning centre.

In other words, delivering the project would likely not be possible without changing the fundamental nature of the Gardens and therefore contravening the provisions of the LCC(I)A. This potential impediment to delivery was a material consideration that the Inspector failed to consider at the inquiry. Ground 2 therefore succeeded.

Ground 3: The Inspector (and Minister) erred in law in considering that in order to attract significant weight, the merits of any alternative sites must be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative.

Lastly, the Trust argued that the Inspector made an error of law when considering the availability of alternative sites for the memorial.  The Inspector’s error, so the Trust argued, was to place the burden of producing a detailed scheme for an alternative site on the project’s objectors. The Judge did not accept that the Inspector fell into this error. Rather, she found that the Inspector had merely considered the level of information that was before him on alternative sites when determining the weight to be afforded to those alternatives in the planning balance, which he was entitled to do. On that basis, Ground 3 would have failed.

However, the Judge nevertheless found that the process of considering alternative sites was flawed because (following the conclusion on Ground 2) the Inspector had undertaken that process without taking proper account of the LCC(I)A and its impact on the deliverability of the memorial in the Gardens. In essence, the Inspector’s error under Ground 2 rendered his consideration of alternative sites unlawful. To this extent, the Trust succeeded on Ground 3.

The Minister’s decision to grant permission for the memorial to be built in the Gardens was therefore quashed.

What next?

With any chance of an appeal now extinguished, there is a significant question mark over the fate of this project.

Speaking in the House of Commons after the Court of Appeal had refused permission to appeal, Paul Scully (Minister of State for the Department of Levelling Up, Housing and Communities) suggested that the government could look at legislative options to break the deadlock. For example, it could seek to repeal the relevant provisions of the LCC(I)A. Of course, even if there were support for that approach, it would require the passing of legislation and entail further delay. The alternatives, however, are equally cumbersome.

The government could admit defeat and seek an alternative home for the memorial and learning centre (the Imperial War Museum was strongly mooted as an appropriate site during the planning inquiry). However, that would mean redoing the designs and going through the planning process again, with all the associated time and cost involved.

Another option would be to scale back the memorial and scrap the plan for a learning centre. Given that the Gardens are already home to various other more modest monuments and memorials, it seems that the current plan was only undone by its ambition and scale. A striking standalone memorial would presumably not have fallen foul of the provisions of the LCC(I)A. However, to compromise in this manner would be disastrous politically and, more importantly, would be a disservice to the victims of the Holocaust.

Whichever course the government adopts, it is clear that the memorial constitutes a commitment that must be delivered on. It is far less clear how many Holocaust survivors will still be alive to see it when it is.

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Update: In the time since this article was first published, the government has pressed ahead with preparing legislation in response to the Court’s decision. On 23 February 2023 the Secretary of State for the Department of Levelling Up, Housing and Communities, Michael Gove, introduced the Holocaust Memorial Bill [Holocaust Memorial Bill (parliament.uk)]. The bill effectively removes the LCC(I)A as a potential impediment to the memorial and learning centre being built in the gardens, paving the way for the original plans to be realised.

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Image credit: Architects to the Holocaust Memorial via UK Government (Open Government Licence v3.0)