Guidance

Holocaust Memorial and Learning Centre: DLUHC handling note

Updated 14 April 2022

Applies to England

Holocaust Memorial and Learning Centre: DLUHC handling note – 7th issue, 14 April 2022

The planning application for the Holocaust Memorial and Learning Centre (HM), made to Westminster City Council in December 2018, in the name of the Secretary of State was called-in on 5 November 2019 by the then Housing Minister, using powers under Section 77 of the Town and Country Planning Act 1990 (“called-in planning application”).

On 29 July 2021, the then Housing and Planning Minister granted planning permission for the proposal, subject to conditions. The decision was subsequently challenged by way of an application for permission to the High Court under section 288 of the Town and Country Planning Act 1990. The High Court quashed the Minister’s decision on 8 April 2022.

Regulation 64(2) of the Town and County Planning (Environmental Impact Assessment) Regulations 2017 (SI 2016 No. 571) (“the 2017 Regulations”) provides that:

Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.

This note sets out the appropriate administrative arrangements as required by regulation 64(2) of the 2017 Regulations with respect to the called-in planning application. They ensure that:

(i) The functions of the competent authority will be undertaken by identified persons provided with the necessary resources and acting impartially and objectively;

(ii) Any person acting or assisting in the handling of the planning decision and subsequent challenge is prevented from being involved in promoting or assisting in the promotion of the application and/or the development; and

(iii) Any person involved in promoting or assisting in the promotion of the development is prohibited from giving any instructions to, or putting any pressure upon, any person acting or assisting in the handling of the planning decision and / or challenge, or from attempting to do so.^{[footnote 1]}

This is vital to ensure that the published propriety guidance is followed (the Ministerial Code^{[footnote 2]}, the Civil Service Code, and Guidance on Planning Propriety Issues) and that there is a clear process for handling this planning decision which avoids any potential conflicts of interest or any perception of conflict and/or that the decision-maker has been influenced by irrelevant considerations.

This note updates previously advised handling arrangements made in earlier versions of this note, circulated by email from Simon Gallagher, Director of Planning, and Joanna Averley, Chief Planner. It ensures that Ministers or officials who have either previously made public pronouncements or have formal responsibility on the issue of the Memorial are explicitly excluded from the decision-making process. It also ensures that this planning decision and challenge can be handled in line with the department’s normal processes and that propriety rules are maintained. This process must be followed to ensure that a proper and fair decision under the relevant planning legislation can be taken.

Any discussion or communication about the Holocaust Memorial project or fund, or the planning decision between, on the one hand, the Minister of State or any official assisting him in the discharge of the competent authority’s functions under the 2017 Regulations and, on the other, the Secretary of State or any official or other persons assisting in the promotion of the project or the called-in planning application is explicitly prohibited. This prohibition includes any discussion or communication with any other member of the government about the project or fund or the planning decision.

Ministerial level

Stuart Andrew MP (the Minister of State for Housing) will handle any advice / submissions on the case following the issuing of the decision to grant planning permission for the proposal in July 2021 by the then Housing and Planning Minister. Advice and submissions on these matters will not be seen by any other Minister.

The Minister is not subject to paragraph 2.3 of the Ministerial Code or “collective Ministerial responsibility” in relation to any matter affecting the discharge of the duties of the Secretary of State as competent authority under the 2017 Regulations for the planning decision.

No other Minister or their Special Advisors will be able to require any official working on the planning decision and challenge to disclose to them, or any other person, information relating to the case.

No information or submissions concerning the Holocaust Memorial project more generally should be shared with Stuart Andrew MP or his Private Office officials ([redacted], [redacted]) supporting him on this matter.

Director General level

Emran Mian – has not had involvement in Holocaust Memorial issues previously, and will act as Executive Team representative as and when needed.

Director level

Joanna Averley, Chief Planner (from September 2020), Paul Hudson, Senior Planning Adviser, and Simon Gallagher, Director Planning (plus support office), will be involved in the planning decision and challenge and should not be copied into information on the Holocaust Memorial more generally.

Official level

Michael Bingham (former acting Chief Planner), and [redacted] will be involved in case of the need to seek specific policy advice.

Planning Casework Unit (PCU)

While before the decision to call-in the application there was some engagement between PCU and colleagues in the Holocaust Memorial team in terms of understanding processes and timescales, there can now be no communication between the relevant case officers, Dean Hermitage (from June 2021), [redacted], [redacted] and [redacted] and the Holocaust Memorial team. Similarly, the Holocaust Memorial team will not have sight of any submissions or other advice on the planning decision and challenge.

Legal

Legal colleagues have insulated specified lawyers from any involvement with the Holocaust Memorial project, such that they are not compromised and are able to work on any PCU advice should this be necessary in due course.

Advisory lawyers who will be advising on the Ministerial decision and challenge are: [redacted] (from Oct 2019 onwards), [redacted] (from Oct 2019 onwards), [redacted] (from Feb 2020 onwards), Matthew Stubbs (from Oct 2019 onwards), and [redacted] (from April 2021 onwards). Litigation lawyers who will also be advising in the context of ministerial decisions regarding the planning decision and challenge as and when necessary are: Gary Howard, [redacted] (from Feb 2020), and [redacted] (from Apr 2022).

Communications

While not involved in the process of reaching a decision, to deal with ongoing press queries, and comms once decisions are made and issued, Comms colleagues have identified specific individuals ([redacted], [redacted]) to deal with issues relating to the planning decision and challenge. They will be kept separate from any other issues relating to the Holocaust Memorial project.

Freedom of Information / EIR Team

[redacted] and [redacted] will deal with FOI / EIR requests relating to the planning application and challenge. While it is normal practise for some responses to FOI/EIR requests to be cleared via Special Advisers or their office, those relating to the planning decision and challenge will not be handled in this way. Copies of final responses may be shared with advisers once they have been issued and are effectively in the public domain. Where necessary, FOI/EIR cases will be cleared with the private office officials, [redacted] and [redacted] in Stuart Andrew’s office, and [redacted] in Communications.

Others

Information relating to the planning decision and challenge must not, except with express authority of Emran Mian, be disclosed or discussed with any person not on the list of persons to whom such information can be disclosed. Any such authorisation must comply with regulation 64(2) of the 2017 Regulations, and must require any authorised person discussing or receiving such information to comply with that regulation and these handling arrangements.

Proposed handling route for Holocaust Memorial planning casework

To be kept under regular review and added / amended as necessary.

• Stuart Andrew (also [redacted] and [redacted] in Private Office
• Director General - Emran Mian
• Joanna Averley, Chief Planner, Simon Gallagher, Director Planning, Paul Hudson, Michael Bingham and [redacted]
• Planning Casework Unit - Dean Hermitage, [redacted], [redacted], [redacted]
• Legal - Matthew Stubbs, [redacted], [redacted], [redacted], [redacted]
• GLD Gary Howard, [redacted], [redacted]
• Comms plus FOI/EIR [redacted], [redacted], [redacted], [redacted]
• Planning Inspectorate [redacted], [redacted]

Ministers / officials to have no role in planning casework decision-making

To be kept under review on a 2-monthly basis and added / amended as necessary.

Ministerial / Executive Team

• Secretary of State (applicant)
• Permanent Secretary (plus office) - meetings with Trust
• Catherine Frances (plus office) - Faith Portfolio
• Chief Financial Officer - Matt Thurstan (plus office)

Holocaust Memorial Team

• Alex Powell
• Paul Downie
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]

Other officials

• Richard Clarke
• Ellie de la Bedoyere
• Abigail Dean
• Paul Morrison
• Jenny Preece
• Benjamin Clayton
• Branwen Evans
• Lucy Hargreaves
• Perry Ashton
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]
• [redacted]

Detailed handling arrangements for casework

In order to ensure the separations set out above are maintained, we propose to take the following actions:

• Ensure this note is circulated to everyone working on the planning decision and challenge and anyone else who needs to see it and issue a clear instruction email to PCU and other staff involved on handling / propriety etc; the note will be recirculated at quarterly intervals and also when there is a material amendment

• Clearly mark who can and cannot be allowed to see the document in question on all submissions / emails etc – e.g. by clearly marking all relevant mails / submissions as follows; HOLOCAUST MEMORIAL PLANNING CASEWORK TEAM ONLY

• Use only the agreed casework list of people as set out in this note;

• Ensure that material related to the case is not stored on shared file spaces accessible by those outside of the decision-making chain;

• Report to the Director General on propriety and handling at key stages of the decision-making / on request.

• Maintain a list of every person working on the planning decision and challenge and entitled to receive information relating to the case, including date of assignment to the task and, where appropriate, date of leaving the task – see attached Annex for those who have previously, but no longer, advised on the application.

Annex: Others who have previously advised on / had responsibility for the planning casework

Litigation lawyer

• [redacted] (from October 2019 to December 2019)
• [redacted] (From April 2020 to October 2020)
• [redacted] (from December 2019 to December 2020)
• [redacted] and [redacted] (from August 2021 to February 2022)

Housing Minister

• Esther McVey (from October 2019 to February 2020)
• Christopher Pincher (from February 2020 to February 2022)

Director General

• Tracey Waltho (from April 2020 to March 2022)

Chief Planner

• Steve Quartermain (from October 2019 to March 2020)

Housing Minister’s Private Office

• [redacted] (from October 2019 to March 2020)
• [redacted] (from October 2019 to December 2020)
• [redacted] (from December 2020 to September 2021)

Planning Inspectorate

• [redacted] (from October 2019 to May 2020).

DLUHC Executive Team

• Emran Mian (from October 2019 to June 2020)
• Tracey Waltho (from June 2020 to March 2022)

DLUHC Comms Team

• [redacted] (from October 2019 to September 2020)
• [redacted] (from October 2019 to November 2020)
• [redacted] (from November 20 to March 2022)

Planning Casework Unit

• [redacted] (from October 2019 to October 2020)

Legal

• [redacted] (from April 2021 to September 2021)
• [redacted] (from August 2021 to November 2021)

Planning Policy

• [redacted] (from July 2021 to September 2021)

FOI/EIR team

• [redacted] (from October 2019 to April 2022)

1. Although point (iii) should also be treated as prohibiting discussions on the merits of a project, it does not impede the provision of information on an application for development consent through the formal channels appropriate to whichever application process is being followed. ↩

2. Subject to the amendment set out with regard to Stuart Andrew MP below. ↩