The High Court (Lieven J) has handed down judgment in Marks and Spencer’s statutory challenge to the Secretary of State’s refusal of planning permission to redevelop its Marble Arch store on Oxford Street.
M&S has succeeded on five of the six grounds of challenge and the Secretary of State’s decision will be quashed.
Lieven J has held that:
- The Secretary of State’s statement that “there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of the [2021 NPPF]” was a misinterpretation of the NPPF and an error of law;
- The Secretary of State unlawfully failed to explain why he disagreed with his Inspector’s conclusions that there was no viable and deliverable alternative to the redevelopment scheme proposed by M&S;
- The Secretary of State unlawfully failed “to grapple with the implications of refusal and the loss of the benefits and thus departure from important Development Plan policies”;
- The Secretary of State unlawfully failed to provide adequate reasons for concluding (again in disagreement with his Inspector) that the harm to the vitality and viability of Oxford Street if M&S’s scheme (or an alternative) were not delivered would be “limited”; and
- The Secretary of State’s decision was also vitiated both by a factual error (an erroneous understanding that there was no dispute that the proposed scheme would involve much greater embodied carbon than refurbishment) and by a misinterpretation of development plan policy on carbon. The judgment confirms that it is “clear beyond any rational doubt … that the offsetting requirements in [London Plan policy] SI 2C are in relation to operational carbon, and not embodied carbon”.
The sixth ground of challenge was dismissed, Lieven J holding that the Secretary of State had provided adequate reasoning in relation to the contribution made by the existing buildings on the site to the significance of nearby designated heritage assets.
Russell Harris KC, David Blundell KC and Heather Sargent
acted for Marks and Spencer plc, instructed by Dentons UK and Middle East LLP.
Matthew Fraser acted for SAVE Britain’s Heritage, instructed by Gunnercooke LLP.
The judgment is available here.
