Marks & Spencer PLC's (M&S) has been successful on five out of six challenges to the Secretary of State's decision in July 2023 which refused planning permission for the construction of a new nine storey mixed office and retail store on Oxford Street in London.
The Secretary of State's reasoning for refusing planning permission had been set out in a Decision Letter dated 20 July 2023 and was made despite recommendations to grant permission by (i) Westminster City Council and then (ii) a senior planning inspector following an inquiry (the Inspector's Report) which had concluded that if M&S were to leave the Oxford Street site, it would significantly damage the vitality and viability of Oxford Street, that the benefits of the scheme outweighed any harm to the heritage assets of the site and that there were no viable alternatives.
The judge dealt with the six grounds submitted by M&S challenging the Secretary of States' decision and held that the Secretary of State:
- Wrongly interpreted paragraph 152 of the National Planning Policy Framework to mean that there was a strong "presumption" in favour of repurposing and reusing buildings when this was merely encouraged to a certain extent;
- Failed to explain why he disagreed with the conclusion in the Inspector's Report that the structural issues and layout of the site would deter any meaningful refurbishment;
- Gave significant weight to the benefits of the scheme but gave limited weight to the impact of the loss of those benefits if permission was refused which was inconsistent and not properly explained;
- Failed to provide adequate reasons for deciding that the harm to the vitality and viability of Oxford Street (one of the "most important" issues in the application) would only be limited, in direct contrast to the conclusion in the Inspector's Report which had found that if M&S was to leave "its loss would cause serious damage to the vitality and viability of the whole of Oxford Street and to London's West End"; and
- Misapplied a policy relating to embodied carbon such that it would be "astonishing if one of the key policies in the London Plan on carbon emissions could have suddenly expanded the scope of the off-setting requirements in such a significant way without anyone applying it in this way before".
Whilst the judge did consider that the Secretary of State had sufficiently explained why he considered that the scheme would have a significant impact on the Grade II listed Selfridges building next door, his decision to refuse planning was quashed in any event on the first four grounds.
This decision was highly critical of the Secretary of State and as a result of this ruling, he will have to re-determine the planning application. It is a reminder of the debate about the re-use and refurbishment of buildings versus total demolition and the continuing focus on embodied carbon and the possible need for further regulation around this.
Please see our previous commentary on this case here.
