Marks & Spencer wins Oxford Street planning battle

Marks & Spencer has won its High Court planning battle with the government over the redevelopment of its flagship property on London’s Oxford Street.  M&S has been challenging levelling-up secretary Michael Gove’s decision to reject its plans to rebuild its flagship Orchard House store at 456-472 Oxford Street, W1. The retailer wants to demolish the art deco building and replace it with a modern, energy-efficient, mixed-use building combining retail and office space. In a detailed ruling handed down today, judge Mrs Justice Lieven backed five of the six legal arguments that the retailer had raised at a trial last month and said that Gove made legal and factual errors when he rejected M&S’s redevelopment plans. His department must now redetermine the issue. M&S’s plans were approved by Westminster City Council in 2021, but Gove intervened and rejected the application last July. M&S has taken legal action to overturn Gove’s decision and the case is being heard at the High Court this week. “Today’s judgment couldn’t be clearer,” said M&S operations director Sacha Berendji. “The court has agreed with our arguments on five out of the six counts we brought forward and ruled that the secretary of state’s decision to block the redevelopment of our Marble Arch store was unlawful.” Dee Corsi, chief executive of the New West End Company, said: “Today’s decision is a just result for Marks & Spencer, whose proposed development is a key part of Oxford Street’s and the West End’s future growth story. We are hopeful that the successful appeal will now lead to enhanced clarity in the planning system for all developers to benefit from, whether they are pursuing a retrofit or a redevelopment. We, like Marks & Spencer, are in full support of a planning system that prioritises sustainable retrofits, where they are both commercially viable and have a clear environmental pay-off over the long-term.” She continued: “This added clarity can only be positive for our city centres – from flagship retail and leisure destinations, like Oxford Street, to local high streets – and will drive growth and investment within the UK’s property sector. The landmark decision to move forward on Marks & Spencer’s flagship redevelopment plans sends a positive signal to other investors that Oxford Street and the West End is a world-leading destination to do business.” The dispute has been closely watched by the real estate industry, which is keen to find out how planning policy and the drive for net zero mesh. James Souter, a partner at law firm Charles Russell Speechlys, said: “This case goes to the heart of an uneasy tension between the protection of heritage assets, environmental concerns and developmental potential. “Today’s decision will be embarrassing for the government, not least because of the public perception on the costs incurred. It could also give developers greater confidence in bringing forward contemporary new-build schemes, even where the possibility of retrofitting existing structures is theoretically possible.” “Rewritten” policy One of the key issues at the trial was whether UK planning law favoured retrofitting over rebuilding. In her ruling, the judge said there was no such stipulation in planning law. Specifically, M&S lawyers drew the court’s attention to a paragraph in Gove’s decision letter that states: “The Secretary of State agrees with the Inspector… that there should generally be a strong presumption in favour of repurposing and reusing buildings… In the circumstances of the present case, where the buildings in question are structurally sound and are in a location with the highest accessibility levels, he considers that a strong reason would be needed to justify demolition and rebuilding.” This, they said, was a legal error misinterpreting planning law. The judge in today’s ruling agreed.  She said that the planning inspector had “found his presumption” from some London Plan guidance documents that are not part of a statutory development plan.  “In my view, it is plain that [Gove] misinterpreted the [National Planning Policy Framework], and therefore erred in law.”  The interpretation of planning law that he made “was simply not open to him”, she said. “The secretary of state has not applied the policy. He has rewritten it,” she said. Political whim Marcus Geddes, chair of Westminster Property Association, said this ruling is likely to have an effect on development across the country.  “The judgment underlines that complex cases require balanced consideration and should not be decided by political whim,” he said.  “The case has become a lightning rod for debate around refurbishment and redevelopment, and what happens next could have a huge impact on investment into towns and cities across the UK. “We hope the secretary of state takes note of this judgment and allows due planning process to take its course without further delay.” Future policy direction This ruling could spur the government to reset planning policy, according to Alistair Watson, UK head of planning and environment at law firm Taylor Wessing. “The Planning Court’s decision is giving the government’s planning policy another opportunity to set up a positive agenda which will give a boost to redevelopment projects across the UK by enabling planning authorities to adopt a logical and commonsensical approach to either repurposing or demolishing and redeveloping. The logical and sensical approach addresses the benefits and the impacts of each scheme, rather than seeking political planning gain.” He added: “The decision is also likely to mean further revisions to the NPPF – which has had two revisions in six months already. More revisions mean more time, and the reconsideration by this government of the Marks & Spencer victory and the court’s judgment could mean even further revisions down the line that don’t get finalised before the general election. This may not give the real estate sector the much-needed swift turnaround on policy, sadly.” The ruling does not, however, mean that M&S’s plans to demolish the current building and build a new one automatically get the green light. The decision will be sent back to the government to redetermine.  “Gove… could in theory still refuse planning permission,” Souter said.  Photo © Vuk Valcic/ZUMA Press Wire/Shutterstock