matters) the level of information before him on proposed alternative schemes,
including the extent of the evidence in support of a particular alternative site when
determining the weight to be afforded to that alternative in the planning balance.
148. In short, the Inspector accepted that the benefits associated with locating the
Holocaust Memorial in Victoria Tower Gardens simply could not be achieved
elsewhere or within the same timescale. I accept the submissions by Mr Mould, Mr
Katkowski and Mr Simons that, properly understood, the challenge on this ground is
an attack on the weight which the Inspector afforded to the alternative site at the
Imperial War Museum. In this context, Mr Katkowski took the Court to various
references to weight by the Inspector in his assessment of alternatives (IR 15.165;
15.122; 15.126, 15.169 and 15.189.) I also note that the Inspector visited the sites
proposed as alternatives and his site visit to the Imperial War Museum was informed
by a conceptual design in the Environmental Impact Statement and a comparative
analysis which assessed the competing claims of alternative sites. I remind myself that
where an Inspector’s conclusions are based on impressions received at a site visit,
anyone seeking to question those conclusions faces a particularly daunting task (R
(Newsmith Stainless Ltd) v Secretary of State [2001] EWHC 74 (Admin) at [8]).
149. As advanced by Mr Drabble, Ground 4 therefore fails. However, I have
concluded in relation to Ground 3 that, section 8 of the 1900 Act imposes an enduring
statutory obligation to maintain Victoria Tower Gardens as a public garden, This is a
material consideration in the context of the Inspector’s emphasis on the importance of
the need to deliver the scheme within the lifetime of the Holocaust survivors. The
Inspector considered the question of alternative sites and the implications of their
deliverability without assessment of the deliverability of the location in Victoria
Tower Gardens in the context of the issues now presented by the Court’s construction
of the 1900 Act. In the circumstances, as a consequence, to this extent, Ground 4
succeeds.
Remedy
150. On behalf of the Trust, Mr Drabble submitted that the Court should conclude that
the erection and use of the proposed Memorial would plainly contravene the terms of
section 8 of the 1900 Act including placing the Secretary of State in breach of the
continuing statutory obligation under section 8 to maintain the new garden land as a
garden open to the public and an integral part of Victoria Tower Gardens. In his
submission, the appropriate remedy is for the Court to quash the decision.
151.
For the Secretary of State, Mr Katkowski submitted that, in the event that the
Court agreed with the Trust on the point of statutory construction this could not justify
quashing the decision as to do so would be wholly disproportionate in relation to a
point that wasn’t even argued by the Trust at the inquiry. At most, the Court should
issue a declaration as doing so would leave the ability to remove the obstacle by
repealing the relevant remaining provisions of the 1900 Act.
55
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