London Historic Parks and Gardens Trust v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 02 October 2020 |
| Neutral Citation | [2020] EWHC 2580 (Admin) |
| Date | 02 October 2020 |
| Docket Number | Case No: CO/1955/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 2580 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Holgate
Case No: CO/1955/2020
John Howell QC and Meyric Lewis (instructed by Richard Buxton Environmental & Public Law) for the Claimant
Timothy Mould QC and Anjoli Foster (instructed by the Government Legal Department) for the Defendant
Hearing dates: 9 and 10 September 2020
Judgment approved by the court for handing down
Introduction
In this claim the first issue is whether the United Kingdom has failed to transpose properly into English law the requirements in Article 9a of Directive 2011/92/EU (“the Directive”) for independence and objectivity in the discharge by a “competent authority” of its duties regarding environmental impact assessment of its own projects. This affects decision-making by local planning authorities throughout the jurisdiction and, as in the present case, the Secretary of State. If the Court is satisfied that proper transposition has been achieved, the second issue is whether the “handling arrangements” made for the determination of the Secretary of State's planning application for the proposed Holocaust Memorial in the Victoria Tower Gardens, London SW1, complies with regulation 64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No. 571) (“the 2017 Regulations”).
On 1 July 2020 I ordered the claim to be dealt with at a rolled-up hearing.
The proposed development has attracted much support and much opposition. However, the pros and cons of the proposal are not matters for this Court, as was rightly emphasised at the outset of his submissions by Mr John Howell QC, who appeared on behalf of the Claimant together with Mr Meyric Lewis. The Court is only concerned with the specific legal issues raised by this challenge.
This judgment is set out under the following headings:
Factual Background
| Heading | Paragraph Numbers |
| Factual background | 5–15 |
| The handling arrangements | 16–19 |
| Legislative framework | 20–35 |
| A summary of the parties' cases | 36–54 |
| Issue 1: Whether regulation 64(2) properly transposes the seconds limb of article 9a. | |
| (i) Whether the UK has complied with Article 2 of Directive 2014/52/EU | 56–58 |
| (ii) The principle of legal certainty and transposition | 59–73 |
| (iii) The criteria for independence and objectivity | 74–96 |
| (iv) Whether those criteria had to be set out expressly in national legislation | 97–107 |
| (v) Whether the second limb of Article 9a has been properly transposed into English law | 108–114 |
| Conclusion on Issue 1 — the transposition issue | 115 |
| Issue 2: whether the handling arrangements for the application comply with regulation 64(2) of the 2017 Regulations | |
| The Court's jurisdiction | 116–122 |
| Discussion | 123–139 |
| Delay | 140–142 |
| Conclusion on Issue 2 | 143 |
| Conclusions | 144–145 |
In January 2019, the Secretary of State made an application to Westminster City Council (“WCC”) for planning permission for the “installation of the United Kingdom Holocaust Memorial and Learning Centre including excavation to provide a basement and basement mezzanine for the learning centre (Class D1); erection of a single storey entrance pavilion; re-provision of the Horseferry Playground and refreshments kiosk (Class A1); repositioning of the Spicer Memorial; new hard and soft landscaping and lighting around the site; and all ancillary and associated works”.
It is common ground that the planning application is for a development which is likely to have significant effects on the environment and as such is required to be the subject of an environmental impact assessment by virtue of the 2017 Regulations. The site is near to the Palace of Westminster and Westminster Abbey UNESCO World Heritage Site. The Palace of Westminster is a Grade I listed building.
On 5 November 2019, the then Minister of State for Housing “called-in” the planning application for determination by the Secretary of State instead of by WCC pursuant to the power in s. 77 of the Town and Country Planning Act 1990 (“TCPA 1990”). It is common ground that the decision on the application can only be taken by the Secretary of State, or by a person to whom he delegates that function. The provisions in schedule 6 of TCPA 1990 for determination of matters by Planning Inspectors do not apply (see s. 77(5) and contrast s. 79(7) for the determination of planning appeals). It is to be noted that the Claimant has not brought any challenge to the decision to call in the application.
The Defendant has decided that the application will be determined by the current Minister of State for Housing, Mr Christopher Pincher MP.
The Claimant is a small charity with a principal object of preserving and enhancing the quality and integrity of London's green open spaces. It has been actively involved in the planning process as an objector to the proposed development and has registered as a party in the forthcoming public inquiry on the planning application.
On 11 February 2020 WCC resolved that they would have refused the application if it had remained with them for determination. In that event, the Secretary of State would have been entitled to appeal against that decision nominally to himself. Under this procedure the appeal could then have been determined by another Minister acting on the Defendant's behalf or by a Planning Inspector acting under schedule 6 of TCPA 1990.
It appears that the Claimant would be content if the final decision were to be taken by an Inspector (see paragraph 15 of the Claimant's skeleton relying upon paragraphs 32 to 37 of the pre-action protocol letter on behalf of the Thorney Island Society sent on 19 February 2020). However, that option is not available to deal with a called-in application under the present statutory framework.
Instead, an Inspector has been appointed to hold a public inquiry into the application which will open on 6 October 2020. It is expected to last a few weeks. After the close of the inquiry the Inspector will prepare a report to the Minister of State on the material placed before him, set out his conclusions, and make a recommendation as to whether or not planning permission should be granted, and if granted subject to what conditions.
The Minister will then have to consider that report, aided by the advice he receives from his dedicated team, and reach his own conclusion on whether to accept or reject the Inspector's recommendation. His decision will have to be taken in accordance with the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000 No. 1624) (“the 2000 Rules”), which also govern the proceedings before the Inspector. Irrespective of whether the Minister decides to grant or refuse planning permission, he will have to give reasons for his decision and, under the 2017 Regulations, he will have to express his “reasoned conclusion” on “the significant effects of the proposed development on the environment” (regulation 26(2)). The Minister's decision may be open to challenge in the High Court under s. 288 of TCPA 1990, but only on public law grounds.
The Planning Inspectorate is held in the highest regard for its independence, expertise and professionalism. Not surprisingly, the Claimant does not suggest that the Inspector's role under the call-in procedure (including any functions he may discharge under the 2017 Regulations on environmental impact assessment) would not meet the requirements of independence and objectivity under Article 9a of the Directive.
The Claimant has drawn attention to a manifesto commitment concerning the project and to strong statements of support from the Secretary of State and the Prime Minister. However, Mr Howell QC confirmed that the present claim does not raise any issues of pre-determination or bias, actual or apparent. It is simply concerned with the issues I have identified at the outset, that is whether article 9a has been properly transferred into our national law and, if it has, whether the arrangements proposed for the handling of this application comply with that law. In that context, Mr Howell QC made it plain that the Claimant is not seeking to call into question the good faith of the Minister of State, particularly with regard to compliance with any relevant legal requirements.
The handling arrangements
On 10 March 2020 the Inspector held a pre-inquiry meeting to address the procedural arrangements for the forthcoming public inquiry. At that meeting the Inspector read out a note prepared by the Ministry of Housing Communities and Local Government (“MHCLG”) summarising the arrangements first put in place in November 2019 so that Ministers or officials who had previously made public pronouncements or have responsibility for the promotion or the delivery of the Memorial are excluded from the decision-making process on the planning application.
On 5 May 2020 the Claimant's solicitors wrote to the Government Legal Department (“GLD”) asking for a copy of the actual arrangements in place for the separation of functions, rather than just a summary. In a letter dated 18 May 2020 GLD refused to provide a copy of the “full document” because that was a purely internal document intended for Ministers, special advisers and officials.
In fact, the Defendant has provided in the court bundle a copy of the revised, full version of the handling arrangements dated 17 June 2020, albeit with certain information redacted,...
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The London Historic Parks and Gardens Trust v The Minister of State for Housing
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