COMMENT The rejection of plans to redevelop Marks & Spencer’s Oxford Street site have brought into the headlines the complex debate around how best to create a sustainable future for historic buildings. But this is far from being the landmark precedent some may be claiming and, in fact, clarifies very little for landlords and owners in similar positions.
Ultimately, the case was determined on four points: the basis of harm to heritage assets including to the setting of Grade II* listed Selfridges and the loss of Orchard House – a non-designated heritage asset; the impact of redevelopment on supporting a low-carbon future; the lack of evidence that there is “no viable and deliverable alternative” scheme; and, finally, the greater weight given to these factors than the substantial public benefits of the scheme.
The finding was contrary to the planning inspector’s conclusion that the application would avoid significant harm to the vitality and function of Oxford Street as an international destination.
The pathway itself was not straightforward. The decision was made against the recommendation of a senior inspector. Westminster City Council had previously resolved to grant permission and the Greater London Authority concluded so too. Montagu Evans was part of the project team throughout this process.
Three points stand out as being very case-specific or needing further clarification.
1. The secretary of state makes clear the key facts are unlikely to be replicated
The secretary of state is clear that the decision is not a precedent and that every case should be determined on its own merits. He states clearly that future decision-makers should have regards to the whole decision and the “very specific facts” which are “unlikely to be replicated elsewhere” given the greatest weight was given to the retention of a non-designated heritage asset.
Furthermore, the London context is unusual due to the extent of planning guidance on the topic of carbon and circular economy, in contrast to much of the rest of the country. Due to that policy void elsewhere, redevelopment cases are unlikely to be directly comparable.
2. More guidance is needed for repurposing to be a new planning test
Both the secretary of state and the inspector pay particular attention to paragraph 152 of the NPPF requiring the planning system to support the transition to a low-carbon future including “encouraging the reuse of existing resources, such as the conversion of existing buildings”. Both also apply a “strong presumption” in favour of repurposing all buildings. Unlike the established sliding scale of legal requirements and policies in relation to retention, reuse and respect for heritage assets, this broader “strong presumption” in relation to all buildings appears to lack a specific national policy, development plan or statutory requirement. This is an unusual feature of the decision and something that will need to be clarified.
3. The requirement for deliverable alternatives needs clarity
Where does the purported presumption leave the vexed question of “alternatives” to offset the presumption? There is currently no policy requirement for applicants to evidence there are no realistic and potentially less harmful alternatives unless the case involves designated heritage assets. Planning decisions are taken on the balance of benefits and harms, and not generally based on alternatives that an applicant does not wish to pursue or is not deliverable.
Here, the inspector had the benefit of examining all the evidence before him, including expert testimony on the testing of multiple alternatives. And in contrast to the secretary of state, he concluded that on balance there were no realistic alternatives.
Applicants and authorities will need to ensure that testing options for retention or part retention are both justified by reference to the adopted policies in play, the nature of the policy requirements for the site and are proportionate. There is potential that this approach will introduce uncertainty for future applicants as the industry calibrates the appropriate extent of evidence to be deemed persuasive by a decision-maker.
One option is adding whole-life carbon assessment to early options appraisal/viability analyses and keeping this updated throughout scheme development.
More than anything, though, this case further underlines ongoing inconsistency in decision making – a major driver of risk for applicants and an inhibitor of development for our communities.
The weight given to the importance of retaining the non-designated asset (Orchard House) relative to what would, in most eyes, be regarded as overwhelming benefits is very surprising.
But the decision also makes clear that however imperfectly we are doing it, the system is starting to engage properly with the more challenging end of the tackling climate change spectrum.
This industry is already pivoting towards much more repurposing. To minimise risk, at least for major schemes, applicants will need to consider adopting what is rapidly becoming an industry norm: the retrofit-first approach. Development plans and national policy needs to catch up so there is greater certainty about how decision-makers will approach this in practice.
The planning system clearly has a vital role to play, and the M&S case illustrates how sustainable development will need to be a balance of not only the optimisation of land use in highly sustainable locations, but also the reduction of carbon.
Optimising the equation across these factors and others – including the age and condition of buildings – requires very different thinking. But for the industry to get there efficiently, not only do we need clarity on policy and guidance, most critically we need to maintain the keystone of the planning system: consistency in decision-making.
Timur Tatlioglu is a partner at Montagu Evans
