considered on a rolled-up basis at the substantive hearing into Grounds 1 and 4. In his
application to renew, Mr Drabble focussed on section 8(1) of the 1900 Act rather than
section 8(8) which had been the focus of submissions before the Permission Judge. As
refined by Mr Drabble, the ground is arguable, and I grant permission. Given the
refinements to the Trust’s case as developed during oral submissions at the hearing,
including the production of the Local Law (Greater London Council and Inner
London Borough) Order 1965, I considered it appropriate (and of assistance to the
Court) to allow the parties the opportunity to make short written submissions after the
hearing.
The Court’s jurisdiction under s288 Town and Country Planning Act
30. The correct approach to statutory reviews pursuant to s. 288 TCPA 1990 was
summarised by Lindblom LJ in St Modwen Developments Limited v Secretary of
State for Communities and Local Government [2011] EWCA Civ 1643, [2018] PTSR
746 at [6]. In summary; the relevant principles of focus in submissions by the parties
are that:
1) Decisions of the Secretary of State and his Inspectors are to be construed in a
reasonably flexible way. Decision letters are written principally for parties
who know what the issues between them are and what evidence and argument
has been deployed on those issues.
2) The reasons for the decision must be intelligible and adequate enabling one to
understand why the appeal was decided as it was and what conclusions were
reached on the principal important controversial issues.
3) The weight to be attached to any material consideration and all matters of
planning judgment are within the exclusive jurisdiction of the decision maker.
They are not for the Court. An application under section 288 of the 1990 Act
does not afford an opportunity for a review of the planning merits of an
Inspector’s decision.
4) The proper interpretation of planning policy is ultimately a matter of law for
the court. The application of relevant policy is for the decision maker.
Statements of policy are to be interpreted objectively by the court in
accordance with the language used and in its proper context.
Ground 1: Harm to heritage assets
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.
Legal framework
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