Out-Law News 1 min. read

M&S challenges decision to prevent Marble Arch store redevelopment

MandS Oxford Street SEO


UK retailer Marks & Spencer has lodged a legal challenge against the government’s decision in the summer to refuse it planning permission for the demolition and re-development of its Oxford Street store in London.

Sacha Berendji, M&S operations director, said the company’s challenge is rooted in its belief that Michael Gove, the secretary of state for levelling up, housing and communities who made the decision, “wrongly interpreted and applied planning policy, to justify his rejection of our scheme on grounds of heritage and environmental concerns”.

Berendji said: “It is hugely disappointing that after two years of support and approvals at every stage, we have been forced to take legal action to overcome a misguided agenda against our scheme, and we will be challenging this to the fullest extent possible."

Gove’s decision, issued in July, went against the planning inspector’s recommendation and earlier decisions by Westminster Council and the Greater London Authority (GLA) that planning permission could be granted.

The harm to heritage assets and the carbon impact of demolition and redevelopment versus the alternative option of refurbishment were deemed by Gove to outweigh the public benefits from granting planning permission for the proposals.

In making his recommendation that planning permission be granted, the planning inspector had considered refurbishment to be unlikely to be viable for M&S and that it was likely that refusal of its planning application would lead to closure of its store, the loss of M&S from the area, and substantial harm to the vitality and viability of the area. However, Gove considered that M&S had not adequately shown that it had fully explored alternatives or that they would not be viable and placed less weight to the risk of the building becoming vacant or underused or of substantial harm to the area were M&S to leave.

The fact M&S had agreed to make carbon offset payments as a condition of obtaining planning permission was not sufficient to sway the decision in its favour.

Jonathan Vickers of Pinsent Masons said: “Whilst M&S is challenging Michael Gove’s decision, the direction of travel looks very clear – whether it will be M&S’ development or the next, local authorities will need to focus more closely on the embodied carbon of a development when reviewing and deciding to approve demolition and rebuild developments.”

Siobhan Cross, also of Pinsent Masons, added: “Whether via changes to national or local planning policy or regulation – with the government’s promised 2023 consultation on embodied carbon still awaited – more clarity is needed on this issue to avoid the current uncertainty. We need to reduce embodied carbon emissions, but it is unlikely we will get much clarity on the issue of retrofit v redevelop from this legal challenge given the fact specific circumstances of this case. The recent report ‘Retrofit First Not Retrofit Only’, contains some useful recommendations for property owners and policy makers.”

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