At the end of August, UK retailer Marks & Spencer (M&S) announced their legal challenge to the Government's decision to refuse planning permission for the redevelopment of their flagship Marble Arch store in London. The decision to refuse planning permission came on the back of a heated campaign around sustainability and heritage. In refusing permission for the M&S proposal to demolish and replace three existing buildings at the site, the Secretary of State went against the local planning authority's decision and his own Planning Inspector's recommendations.
M&S have confirmed that their appeal is on the basis that the Secretary of State "wrongly interpreted and applied planning policy" in justifying his decision. This looks set to kickstart the next round of public debate – with environmental and heritage concerns being voiced alongside wider business concerns about the future of Oxford Street as a retail destination.
Background
In 2021 M&S submitted an application for planning permission to the local planning authority, Westminster City Council, to demolish and rebuild their flagship store at the heart of London's premier retail district. The application stated that the building was no longer fit for purpose and after a rigorous design process (which explored at least 16 different retrofit options) M&S decided that a complete rebuild was the preferred approach to support their long term organisational and sustainability needs.
The plans were initially approved by the planning authority in November 2021. Following attention from the Mayor's office and high profile campaigns by climate change activists and heritage group SAVE Britain's Heritage, the Secretary of State launched a public inquiry into the planning application in late 2022. The rationale for the inquiry sought to delve further into the heritage of the M&S building and the protected status of its neighbouring properties (particularly the adjoining Grade II* listed Selfridges building), and the carbon emission impact of the proposed demolition and rebuild.
Embodied Carbon and Operational Carbon
This was the first high-profile decision refusing planning permission where embodied carbon has been a prominent issue. The Secretary of State, in disagreeing with his inspector's recommendation to grant permission, stated that the M&S proposal failed to support the transition to a low carbon future, and would overall fail to encourage the reuse of existing resources (including the conversion of existing buildings) in conflict with paragraph 152 of the National Planning Policy Framework.
Embodied carbon takes account of the carbon emitted in the extraction, production and transportation of the fabric or material used during the construction process, as well as carbon emissions from deconstructing and disposing of a building. Operational carbon refers to the emissions released during the operational phase of a building (eg the energy usage associated with running the building). The focus on climate change in the last decade has resulted in organisations successfully reducing operational carbon emissions through implementing a range of energy efficiency measures (such as energy efficient lighting, increased insulation, low carbon heating, renewable energy sources etc.). While these measures can significantly reduce operational emissions, embodied carbon is effectively locked in at the planning and design stages of a project.
The embodied carbon associated with a project will likely increase over the lifespan of a building and will need to be accounted for when planning retrofit works, extensions, redevelopment or eventual demolition or disposal. Focusing on embodied carbon means a greater emphasis on sustainable planning and design to ensure that carbon-responsible decisions are made during the entire life-cycle of a project. Initiatives like "materials passports" (which collect and organise data on materials used in buildings) open up wider opportunities for the re-use of building materials. Seeing buildings as a materials resource contributes to a more circular economy, and developers are already adopting more sustainable methods of construction including recycling and reusing materials to reduce levels of embodied carbon.
Planning considerations
Embodied carbon was not the sole reason for refusal of the M&S application There were also significant design and heritage issues that weighed against approval in the Secretary of State's view. But the issue of embodied carbon is now likely to become a common battle ground where major demolition is proposed.
This is particularly the case in London, where the London Plan (Policy SI 2) sets out a requirement for development proposals to calculate and reduce Whole Life-Cycle Carbon (WLC) emissions as part of a WLC assessment. It is likely that similar policies will become the norm in development plans across the country. But the National Planning Policy Framework requirements of paragraph 152 means this issue cannot be ignored anywhere, even where local policies are silent.
Developers proposing major demolition will need to robustly demonstrate why refurbishment or retrofitting are not viable options. The Secretary of State (and also the Inspector) did not find the evidence from M&S to be convincing in this regard. It will be interesting to see how the court interprets M&S' assessment of the options and how it believes the relevant planning policy should have been applied. Notwithstanding the outcome of this case, applicants should present a thorough exploration of alternatives to demolition and demonstrate how their proposals supports the transition to a low carbon future. This will be in addition to any local policy requirements.
Retrofit vs Rebuild
This case continues to fuel a debate on whether retrofit should always trump rebuild. It is agreed that retrofit measures along with internal remodelling can effectively improve the energy efficiency of a structurally sound building. But there are cases where a building is no longer fit for purpose, or where a rebuild has the potential to produce a building with greater performance and longevity. If this can be demonstrated, then there is more weight in the argument to allow for demolition/rebuild.
At the outset of any new project whether that be retrofit, rebuild or new build, it is important to consider the payback period – ie the tipping point in which the carbon savings generated from greater efficiency meets the level of emissions which were released during the construction phase. In the M&S case, this was estimated to be 11 years, a number that the Planning Inspector agreed with but was disregarded by the Secretary of State as he did not deem that it had been robustly compared against refurbishment alternatives.
Next steps?
Prior to appeal, Stuart Machin (M&S Chief Executive Officer) expressed criticism of the Secretary of State's decision. He confirmed that retrofit was not an option for M&S at the site "despite us reviewing sixteen different options" and that the Secretary of State has "inexplicably taken an anti-business approach, choking off growth". Machin also pointed out that 42 out of the 269 shops on "what should be our nation's premier shopping street sit vacant", highlighting that the Secretary of State's decision has the potential to cause greater uncertainty. The recent administration of the retailer Wilko has highlighted the challenging market conditions across the nation's high streets, and the M&S case is likely to be considered when assessing the viability of major redevelopments.
It should also be flagged that the "heritage impact" of a building and any neighbouring properties should not be underestimated. The Secretary of State sent a clear message in his original decision that retrofit trumps rebuild when dealing with heritage sites. We await the outcome of the appeal to see if the Secretary of State's decisions regarding heritage and sustainability are sustained.
