M&S decision quashed as SoS misinterprets planning policy

The legal dispute over the proposed redevelopment of Marks & Spencer’s store on London's Oxford Street continues following the High Court Judgment (Marks and Spencer plc v SSLUHC) on 1 March 24.

In 2021 M&S submitted plans to demolish the existing buildings on the site and construct a new nine-storey building. The proposals received support from Westminster City Council, the GLA, Historic England, and other stakeholders and the Planning Committee resolved to grant permission in November 2021. However, the proposals faced significant opposition from objectors, notably Save Britain’s Heritage who wanted to see a retrofit approach rather than demolition, and raised concerns over the heritage impacts of the scheme.

The application was called in by Secretary of State (SoS), Michael Gove, which led to an inquiry before a Planning Inspector who recommended the granting of planning permission. The SoS ultimately refused permission, stating that the proposals “fail to support the transition to a low carbon future” and “fail to encourage the reuse of existing resources, including the conversion of existing buildings”.

M&S publicly criticised the decision and took legal action, challenging the decision in the High Court on the following grounds: 

1. The SoS erred in respect of paragraph 152 of the NPPF when claiming that there was a “strong presumption in favour of repurposing and reusing buildings”
2. The SoS “erred in respect of the consideration of alternatives”
3. The SoS “erred in the balance of public benefits as against the heritage impacts”
4. The SoS’s “conclusion on the harm to the vitality and viability of Oxford Street, had no evidential basis”
5. The SoS “made an error of fact in respect of the embodied carbon, and misapplied policy in respect of embodied carbon”
6. The SoS “erred in his approach to analysing the impact of the proposals on the setting of Selfridges and the Stratford Place CA”. 

The High Court ruled in favour of M&S on grounds one to five, citing errors in the interpretation of planning policies and balancing the impacts. Mrs Justice Lieven noted that whilst there is encouragement within paragraph 152 for the reuse of buildings, it stops short of establishing a strong presumption as the SoS suggested, and the decision was, in part, made in error based on this misinterpretation of policy. The Court therefore quashed the decision.

The impact of this is that the SoS will now be required to redetermine the application in line with planning policy. Whether that further decision comes before the general election (and is therefore made by the same SoS) is an interesting question. However, it is clear that the outcome of this case raises questions about the interpretation of policies and a “retrofit-first” approach, as this must be both viable and deliverable for it to be a realistic alternative to demolition.

The City of Westminster has completed a Regulation 18 consultation on its draft retrofit policy in a partial review of its City Plan and a further draft is anticipated shortly. This will have implications for future schemes where there will be an attempt to balance heritage, sustainability, and redevelopment/regeneration. It also highlights the need for a comprehensive and consistent interpretation of planning policies to guide decision-making processes in a plan-led system. 

To discuss how this update impacts you or any other planning matter, please contact the team.