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High Court judge rules UK has achieved proper transposition of EIA Directive but criticises handling arrangements for Holocaust Memorial planning application

The UK has properly transposed into English law the requirements in Article 9a of Directive 2011/92/EU ("the EIA Directive") for independence and objectivity in the discharge by a "competent authority" of its duties regarding environmental impact assessment of its own projects, a Planning Court judge has ruled.

Mr Justice Holgate noted that the issue affects decision-making by local planning authorities throughout the jurisdiction and, as in the present case which relates to the planning application for the UK Holocaust Memorial and Learning Centre, the Secretary of State for Housing, Communities and Local Government.

The judge concluded that the claimant, the London Historic Parks and Gardens Trust, had failed on the transposition issue, because regulation 64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 ("the 2017 Regulations") did properly transpose the second limb of article 9a of Directive 2011/92/EU into English law.

The second issue in London Historic Parks And Gardens Trust v Secretary of State for Housing Communities And Local Government [2020] EWHC 2580 was 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, complied with regulation 64(2) of the 2017 Regulations.

In this respect Mr Justice Holgate concluded that the handling arrangements put in place for dealing with the called-in application failed to comply with regulation 64(2) in various respects and therefore need to be amended so as to resolve those matters.

The background to the case was that in January 2019, the Secretary of State made an application to Westminster City Council for planning permission for the installation of the Holocaust Memorial and Learning Centre on the site, which is near to the Palace of Westminster and Westminster Abbey UNESCO World Heritage Site.

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 the council pursuant to the power in s. 77 of the Town and Country Planning Act 1990.

On 11 February 2020 the city council resolved that they would have refused the application if it had remained with them for determination.

The application will be determined by the current Minister of State for Housing, Christopher Pincher.