In a landmark verdict, the High Court has ruled that the government’s decision to block Marks & Spencer’s (M&S) plans for the redevelopment of its Marble Arch store in London was unlawful. In this long-running saga, M&S sought to demolish its flagship store to redevelop the site with a 10-storey complex. The retailer believed that this would not only better cater to the needs of shoppers and revitalise the area, it would also be significantly more energy efficient than the existing building in terms of operational carbon. After Westminster City Council resolved to grant permission in 2021, the secretary of state (SoS), Michael Gove, called in the decision for his personal determination and, despite the inspector recommending the grant of planning permission, Gove refused the called-in application. In his decision letter issued in July 2023, Gove contended that the existing building should be refurbished rather than demolished, citing heritage as well as carbon impact grounds.
M&S challenged the decision in the High Court. In her 1 March judgment, Mrs Justice Lieven ruled that M&S had succeeded on five out of the six grounds for appeal. Taking each of the successful grounds, M&S contended that:
- Ground 1 - the SoS erred when he said that paragraph 152 of the National Planning Policy Framework (NPPF) created a ‘strong presumption in favour of repurposing and reusing buildings’ and that ‘compelling justification’ for the demolition was required. M&S contended that the SoS had effectively introduced a new approach to sustainable development and the preservation of existing buildings that was not actual policy in the NPPF. Lieven J agreed, finding that while there is ‘some encouragement for the reuse of buildings’ in the NPPF, there was ‘nothing that comes close to a presumption’. As such, she found that ‘the SoS has not applied the policy, he has rewritten it’. She then noted that the SoS then carried this misinterpretation through the whole of his decision letter.
- Ground 2 - the SoS unlawfully failed to explain why he disagreed with his inspector’s conclusions that there was no viable and deliverable alternative to the redevelopment scheme. Lieven J agreed and found that: ‘If the SoS is going to disagree, then the developer is entitled to understand in clear terms what the basis for that disagreement is. Otherwise, it is not possible to tell whether or not the SoS is acting in a rational and lawful manner.’
- Ground 3 - the SoS erred in the balance of public benefits as against the heritage impacts. Here, Lieven J found that the SoS’s ‘failure to adequately explain his approach to the loss of those benefits on refusal of the application is palpable’.
- Ground 4 - the SoS’s conclusion on the harm to the vitality and viability of Oxford Street, if the scheme was not delivered, had no evidential basis. Again, Lieven J agreed, finding that given the nature of the proposal, the SoS ‘had to fully explain why the harm would be limited’ and had not done so.
- Ground 5 - the SoS made an error of fact in respect of the embodied carbon, and misapplied policy in this respect. Perhaps most embarrassingly, Lieven J stated that the SoS had become ‘thoroughly confused’ when assessing the issue of embodied carbon and had mistakenly thought that carbon offsetting requirements (as set out in the London Plan) applied to the embodied carbon in the existing building, not just the operational carbon in the redevelopment (as the policy in fact provides). The scale of the SoS’s error was noted and it was held that had he understood the policy properly, he was likely to have reached a different conclusion.
Ground 6 concerned heritage impacts of the scheme and was not successful.
M&S cannot send in the bulldozers quite yet, as the decision is now remitted to the SoS for redetermination. This could take many months longer and it is uncertain who the SoS will be by the time of redetermination. However, given the nature of the judgment, it is likely that M&S would be back in the courts again if permission were not now granted.
The judgment provides welcome clarity on government policy and the case further informs the ongoing debate over demolishing or repurposing buildings. While Gove made a series of errors in his decision, the debate over whether embodied carbon should be valued over the potential for more operationally efficient modern buildings will continue. Sustainability credentials will remain vital for successful demolition and redevelopment applications. It is also evident from this case that local, regional and national policy requires greater clarification on the issue of embodied carbon to provide more certainty to owners and developers. On this, the government did suggest in 2023 that it intends to consult further on embodied carbon and the whole-life carbon cycle of buildings. Depending on how quickly that may feed into the legislative cycle, the policy landscape may even be different by the time of the M&S redetermination. There may yet be a final twist in the tail of this ongoing saga.
This article first appeared in The Law Society Gazette, the original article can be found here.
