M&S right to demolish and redevelop Oxford Street store to be reconsidered

The planning application will now be remitted to the secretary of state, Michael Gove, for re-determination. The secretary of state may decide to reverse his earlier decision or first invite written representations or convene a further short public inquiry before re-determining the application.

Experts at Pinsent Masons said the ruling highlights the need for guidance on how the debate over whether buildings should be retrofitted and reused or demolished and redeveloped should be resolved within planning decisions.

Gove refused planning permission for demolition and redevelopment of the store in July 2023. Gove’s decision went against the recommendation of the planning inspector who had considered the proposals, as well as the views of Westminster Council and the Greater London Authority (GLA) that had earlier decided that planning permission could be granted.

At the time, Gove considered that the harm to heritage assets, together with the embodied carbon impact of demolition and redevelopment versus the alternative option of a deep refurbishment, outweighed the public benefits to be gained from granting planning permission for the proposals.

The planning inspector had concluded that the deep refurbishment was 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 he placed less weight on the risk of the building becoming vacant or underused or of substantial harm to the area were M&S to leave.

M&S lodged a legal challenge against the government’s decision in September 2023. It considered that Gove had made a series of errors in coming to his decision and succeeded in four of the six grounds of challenge it raised.

M&S argued that this interpretation of the policy was wrong and, when applied in this way, meant it needed a "compelling justification" for demolition and redevelopment of the store. However, the government argued that the policy “is seeking to achieve a radical reduction in carbon, and thus a presumption of retaining buildings can be inferred”.

The judge agreed with M&S. She said Gove had “not applied the policy” but in fact “rewritten it”, and that this led him to place an unjustified “policy hurdle” on M&S’ demolition and redevelopment proposals. She said that while paragraph 152 of the NPPF does provide “some encouragement for the reuse of buildings”, there is nothing in the wording “that comes close to a presumption” in favour of retaining and reusing buildings.

Planning law expert Nicholle Kingsley of Pinsent Masons said: “While it is right that the development industry looks to reduce carbon emissions, retrofit is not always the most sustainable or optimised use of the site and the planning system ought to be free to reach a balanced judgment, as the inspector did in the M&S decision. However, that position is not expected to last long before the NPPF is amended, or new national management development policies are in place, to introduce a presumption of reuse over redevelopment. It is to be hoped that intervention does not prevent sustainable net zero developments of the future.”

Mrs Justice Lieven also considered that Gove had erred in respect of his consideration of the alternatives to demolition and redevelopment open to M&S, determining that while the secretary of state was free to reach a different conclusion on alternatives from that of the planning inspector, he had not provided sufficient explanation for doing so, in particular omitting to deal with a key conclusion reached by the Inspector on the viability of an alternative.

The judge upheld a further ground of challenge related to the way Gove had balanced the public benefits he had identified from M&S’ proposals as against the heritage impacts of redevelopment. On this point, she found Gove had not provided adequate reasons as to why he disagreed with the planning inspector’s assessment about the extent of the harm that could arise from loss of footfall and investment in the town centre from refusing M&S’ planning application.

The judge also considered two other grounds of appeal, one of which concerned the extent to which Gove had made an error of fact about, and on policy interpretation relating to, embodied carbon.

While Mrs Justice Lieven considered it was not necessary to rule on that ground of challenge, she reviewed Policy S1 2 of the London Plan which deals with minimising greenhouse gas emissions and said that it appeared that Gove had wrongly considered requirements for carbon off-setting under that policy to refer to embodied carbon, whereas in fact they related to operational carbon only, describing the arguments for a contrary interpretation of that policy as “impossible”.

Siobhan Cross of Pinsent Masons said: “This decision shows that clearer national guidance would be useful on how the very live issue of retrofit and reuse or demolition and redevelopment should be dealt with in planning decisions. Outside the planning arena, greater policy and regulatory clarity on the issue of embodied carbon would be Iine with many industry calls for regulation of embodied carbon whether through the building regulations or otherwise. This would be likely to involve a requirement initially to report embodied carbon on works requiring building regulation consent and in due course the setting of maximum allowable embodied carbon limits for such works.”

“Some European countries already regulate embodied carbon and thereby stimulated demand for low carbon and circular economy products for building works in their economies. In October 2023 we were promised a UK government consultation on whole life carbon which disappointingly has yet to materialise. In the meantime, there is evidence in the form of Deloitte’s Winter 2023 Crane Survey showing record numbers of refurbishment projects for the second consecutive year, and from the record number of retrofit and refurbishment planning applications received the City of London in 2023, that the market is responding to the need to reduce carbon emissions and to the developer, funder and tenant appetite for ‘brown to green’ projects where these are viable,” she said.