Marks & Spencer said its High Court planning battle with the government is “of fundamental importance” to Oxford Street, the West End and London as a whole.
M&S is challenging Michael Gove’s decision to reject its plans to rebuild its Oxford Street flagship store. 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.
The plan was approved by Westminster City Council, but Gove, the secretary of state for housing, 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.
“The [planning] decision is of fundamental importance to the spatial development of London as a whole and, in particular, to the future of Oxford Street and the West End as an internationally important retail and office location,” said M&S’s legal team, which comprises Russell Harris KC, David Blundell KC and Heather Sargent.
The decision highlights the sustainability argument around redevelopment versus refurbishment. M&S said the government justified the rejection of its plans by saying there was a “strong presumption in favour of the re-use of buildings” in planning law. M&S’s lawyers said that no such presumption actually exists.
Save Britain’s Heritage also opposes the redevelopment plans. Its legal team argues that M&S’s claim is overly legalistic and that Gove was entitled to disagree with the earlier decision.
According to Save Britain’s Heritage, by M&S’s own calculations, the new building would have released 40,000 tonnes of CO2 into the atmosphere, the equivalent of driving a typical car 99 million miles – further than the distance to the sun. The group said it would also have permanently harmed the historic setting of the “nation’s high street” and Grade II* listed neighbour Selfridges.
Alistair Watson, UK head of planning and environment at law firm Taylor Wessing, said the challenge was not unexpected and the retailer was right to challenge the government’s decision in the courts.
“M&S and the real estate industry have relayed their views, and a lot of the real estate industry considers that the government got this wrong.”
According to the London Property Alliance, which represents more than 400 real estate developers and investors, this case has created uncertainty over how to approach the upgrading of older buildings. This, it says, could deter investment.
“This case underlines the significant challenges developers and investors face when making long-term investment decisions, and the need for much greater clarity nationally,” said LPA chief executive Charles Begley.
“It has become a lightning rod for the debate around refurbishment and redevelopment, which unfortunately has confused the balanced decision-making required to provide sustainable buildings which will lower their impact on the environment long into the future.”
He added: “There is often a range of interventions needed to reduce a building’s carbon footprint over its lifetime, and currently national legislation fails to fully factor this in. Without additional guidance and standardisation to help understand the full picture, as well as long-term impact locally, councils and communities have been left in an invidious position to try and work it all out, with conflicting messaging from national government further confusing the issue.”
The case is scheduled to last two days, with judgment handed down later this year.
M&S’s grounds for challenge
M&S is challenging Gove’s decision on six separate grounds:
- The secretary of state has misunderstood and misapplied national planning policy
M&S argues that, in rejecting the plans, the government argued that there should be a “strong presumption in favour of the re-use of buildings”. M&S argues that this doesn’t exist in planning law. The government and campaign group Save Britain’s Heritage argue that this is an overly legalistic interpretation of the government’s decision and that the secretary of state was entitled to make the decision he did. - The secretary of state did not properly deal with one of the planning inspector’s “firm and robust” conclusions
According to M&S’s legal arguments, the planning inspector who recommended the development concluded that there was “no viable and deliverable alternative” to the M&S proposal. The secretary of state is under a legal obligation to “fully and clearly” explain why he disagreed, and has failed to do so, they argue. The government rejects this, arguing that it understood the planning inspector’s reasoning, and is entitled to disagree. - The secretary of state’s conclusion was legally “irrational”
Lawyers for M&S argue that the decision was legally “irrational” (one of the key grounds for judicial review) because his conclusions on the public benefits did not comply with case law and legislation. Specifically, they cite Canterbury City Council. The government disagrees. - The secretary of state was wrong to conclude that the damage done to Oxford Street by refusing the plan would be “limited”
Lawyers for M&S argue that Oxford Street is a “world class, strategically important and sustainable West End retail and office location”, and that the planning inspector who recommended the plan found that refusing the application would probably lead to the store being closed to Oxford Street’s determent. M&S argues that the government didn’t adequately explain why it disagreed. The government disagrees with this analysis. Lawyers for Save Britain’s Heritage claim the secretary of state made a rational decision and was entitled to conclude that the harm caused was overstated. - The secretary of state made errors in law when considering the embedded carbon implications of the project
This point concerns debate about whether the embedded carbon emitted by the rebuilding would be higher than refurbishing the existing premieres. M&S says it was clear that there was a live debate about the issue that the government misunderstood. - Impact on the Selfridges and Stratford Place Conservation Area
M&S’s lawyers say that the government erred in law when it considered whether the proposed development would have a negative impact on the adjacent Selfridges building, which is listed and in a conservation area. This is a complicated point and Save Britain’s Heritage says that the planning inspector did not clearly articulate the extent of any harm done to Selfridges, which meant that the government did not need to explain the reasons why it disagreed with the inspector.
