Government grants planning permission for the redevelopment of Marks & Spencer's flagship store on

Introduction

This is a decision which has been eagerly awaited, both as an indication on the Government's intentions around the ongoing debate on retrofit vs demolition and refurbishment, but also as to intentions in respect of investment and economic growth. It is also an example of how the planning process should not operate with potential impact on investment and economic growth following lengthy delays, inconsistency and uncertainty in planning decision making.

Given the significance of the decision, here is a brief reminder as to the timetable and circumstances of this planning application for redevelopment for one of the most discussed planning cases of 2023 and 2024.

Summary overview of timetable of events

2 July 2021 - M&S submit planning application for "demolition of three existing buildings on site for the construction of a ground plus nine- storey mixed use development (Use Class E) comprising of retail, cafe/restaurant, office and gym as well as a new pedestrian arcade, public realm works and associated works" to Westminster City Council
23 November 2021 – Westminster City Council Planning Committee recommendation to approve
7 March 2022 – GLA confirm Westminster can determine application
20 June 2022 – Michael Gove (then Secretary of State) called in the application
1 February 2023 – Inspector recommendation to approve following a one week public inquiry
20 July 2023 – Michael Gove refuses consent
August 2023 – s288 challenge to Michael Gove’s decision
20 November 2023 – High Court grants leave to challenge
13 – 14 February 2024 – High Court hearing
1 March 2024 – High Court decision quashing Michael Gove’s decision and remitting application back to Secretary of State for determination
5 December 2024 – New Secretary of State for Housing, Communities and Local Government’s Angela Rayner grants permission

Summary of key issues

Marks & Spencer (M&S) applied for planning permission to demolish three existing buildings at their Oxford Street site in London and replace them with a nine-story mixed-use building comprising retail and office spaces. Westminster City Council (WCC) resolved to grant planning permission in November 2021 but the then Secretary of State (SoS) Michael Gove called in the application for his review leading to a public inquiry. A senior planning inspector (the Inspector) held the inquiry and recommended granting planning permission. The Inspector concluded that while the project would cause moderate harm to certain heritage assets and contribute significant embodied carbon (from demolition and construction), the public benefits, such as economic regeneration, improved office and retail spaces, and enhanced vitality for Oxford Street, outweighed these harms. The Inspector's formal recommendation was that the application should be approved and planning permission granted (subject to planning conditions and a section 106 obligation).

Despite the Inspector's recommendation, the SoS refused the application in July 2023. Key reasons included:

substantial harm to the setting of the Grade II* listed Selfridges building and other heritage assets;
the proposal's failure to adequately support the UK’s transition to a zero-carbon economy, given the high levels of embodied carbon associated with demolition and new construction;
the lack of thorough exploration of refurbishment alternatives, which could have delivered similar benefits with less harm.

Not unsurprisingly M&S challenged the refusal in the High Court. They argued that the SoS:

misinterpreted planning policy by creating a "strong presumption" for repurposing/reusing buildings (rather than demolishing and rebuilding) that is not explicitly set out in national planning policy;
incorrectly evaluated the feasibility of refurbishment alternatives, disregarding the Inspector's findings;
failed to adequately consider the potential harm to the vitality and viability of Oxford Street from not proceeding with the development;
made errors in assessing the embodied carbon impacts of the proposed demolition and new build.

That challenge was successful, and the High Court determined that the SoS had:

misapplied planning policy (paragraph 157 of the National Planning Policy Framework (NPPF)) by introducing an unwarranted presumption in favour of reusing buildings. The High Court judge went as far as to say that the SoS had 'rewritten' planning policy;
failed to adequately explain why the SoS departed from the Inspector's recommendation, particularly regarding the feasibility of refurbishment and the impact on Oxford Street;
not provided sufficient reasoning for the weight assigned to public benefits versus harms; and
erred (and misunderstood) the application of offsetting requirements in the London Plan. The judge confirmed that the offsetting requirements in the London Plan related to operational carbon and not embodied carbon.

Following the Court's decision and quashing of the SoS's refusal, the planning application was remitted back to the SoS for re-determination.

Fast-forward nine months to the present and we now have a new Government in power and a new SoS who has now granted permission.

Why is this decision significant?

The decision and conclusion of this long running case is significant for several reasons:

Impacts of delays to planning decisions

Delays in the planning process can have far-reaching consequences for the real estate industry. They not only stall development projects but can significantly increase costs and deter further investment. The decision underscores the need for quicker and more predictable planning decisions to assist the government's stated aims for development to secure economic growth and the UK's attractiveness as a destination for real estate investment.
The Significance of the Reuse/Retrofit vs Redevelopment Debate

While harm to heritage assets was the main reason for Michael Gove refusing permission, the case also brought into sharp focus the debate between retrofitting existing buildings and complete redevelopment which includes demolition and re-build. With the increasing emphasis on sustainability and reducing carbon emissions, the case highlights the importance of a clear and consistent application of planning policies, particularly regarding the UK's transition to a zero-carbon economy and the weight to be applied to embodied carbon emissions as part of the balance in planning decisions. From the decision, the Government, in this instance at least, is not intending to apply a presumption against redevelopment on grounds of embodied carbon emissions.

However, it is noticeable that the Government's recent consultation on the NPPF (with an updated NPPF due to be issued before Christmas), did not include any changes to the paragraph which was at the heart of the SoS's misapplication of policy in the M&S decision.

While some local authorities are already progressing policies towards a 'retrofit first' approach¹ the true impact of this decision and its implications for investment and the approach to embodied carbon considerations in planning decisions will only start to become clear as we progress through 2025.