i) On a fine balance, overall, the proposals cannot be judged to be in accordance
with the development plan when read as a whole (IR15.279).
j) However, the significant range of truly civic, educative, social and even moral,
public benefits the proposals offer would demonstrably outweigh the
identified harms the proposals have been found to cause. The outcome of this
balance amounts to a material consideration of manifestly sufficient weight to
indicate in this case that determination other than in accordance with the
development plan is justified (IR15.283).
25. The Inspector recommended that the application be approved, and planning
permission granted.
The decision to grant planning permission
26. Following consideration of the Inspector’s Report, the Minister granted planning
permission by a decision letter dated 29 July 2021. The decision under challenge is
the decision of the Minister. However, in the decision letter the Minister agreed with
the Inspector’s conclusions and recommendation. Accordingly, for the purposes of the
present appeal it is not necessary to do more than look at the Inspector’s report.
Grounds of challenge
27. The Trust applied for judicial review on five grounds, of which permission was
granted on two Grounds:
Ground 1 – The Planning Inspector (and Minister) applied the wrong legal test to
the issue of whether there will be ‘substantial harm’ to the heritage assets within
the Gardens. The correct application of the test would have led inevitably to the
conclusion that the harm to the significance of the Buxton Memorial was
substantial and which would have led in turn to a very different test for the
acceptability of the proposal.
Ground 4 – 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.
28. Permission was refused on a third ground:
Ground 3 – The Inspector (and Minister) failed to address the provisions of the
London County Council (Improvements) Act 1900, which creates a
straightforward prohibition on using the Gardens for the provision of the
Memorial in the manner proposed.
29. The Trust subsequently applied to renew its application for permission for judicial
review on Ground 3. The parties agreed that the Trust’s application should be
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