Planning analysis: In Marks and Spencer plc v SSLUHC, the High Court quashed the Secretary of State’s decision to block the redevelopment of Marks & Spencer’s (M&S’s) store on Oxford Street, finding that there was no presumption in favour of repurposing and re-using buildings in the National Planning Policy Framework (NPPF)

Marks and Spencer plc v Secretary of State for Levelling Up, Housing and Communities and others [2024] EWHC 452 (Admin)

What did the court decide?
This case involved the legal challenge by M&S to the Secretary of State’s refusal of the retailer’s application for planning permission for the demolition of its flagship existing store on Oxford Street which was to be replaced by the construction of a new nine storey mixed office and retail store. M&S were successful on five of the six grounds of challenge.

The High Court held that the Secretary of State’s decision was unlawful as he misinterpreted the provisions of the NPPF to create a strong presumption in favour of the re-use of the building where no such presumption exists. The Secretary of State also did not provide adequate reasons for concluding in disagreement with the inspector. The judgment also confirms that offsetting requirements in the London Plan are in relation to operational carbon and not embodied carbon.

This case provides enhanced clarity in the planning system for all (whether one is pursuing a retrofit or a redevelopment) as it reinforces the importance of our plan-based system. The effect of the judgment is that the application has to now be redetermined the Secretary of State, so the issue is not yet final as the Secretary of State (in theory) could still refuse the planning permission or appeal the High Court decision.

What are the practical implications of this case?
This case is important for three reasons.

First of all, it makes it clear that if the Secretary of State wants to have a presumption in favour of repurposing and reusing buildings in the NPPF then there needs to be an express policy for this. The government can of course update the NPPF to provide this, but as currently drafted there is no such presumption. Some local plans coming forward have a ‘retrofit first policy’, such as the draft local plan by the City of London Corporation and the draft local plan by Westminster City Council. As the judge said, ‘this case is not about whether or not it would be appropriate or justified to have such a policy in the light of the climate emergency. Such a judgement is not the function of the court’. The issue for the court was whether the Secretary of State erred in law by misinterpreting the NPPF and the adopted London Plan policy.

Secondly, the case highlights that reasons need to be clearly and fully given if the Secretary of State is to depart from the recommendations of the inspector.

Lastly, this case highlights the tension between politics and planning. The Secretary of State went against everyone’s decision in favour of granting planning permission—(Westminster Council, the Greater London Authority and even his own planning inspector) and so some would argue there should be a higher threshold for call-in by the Secretary of State of decisions which are referable to the Mayor of London.

What was the background?
Planning permission was granted by Westminster City of Council to M&S in November 2021 for the total demolition its current store and the construction of a new nine storey mixed office and retail store on Oxford Street. In April 2022, the Mayor of London confirmed he would not intervene by directing refusal or recovering the application for his own determination. However, in June 2022 the Secretary of State called the application in. A planning inquiry was held between 25 October and 4 November 2022 whereby the planning inspector recommended that planning permission should be granted. Nonetheless, the Secretary of State did not agree with his planning inspector and in July 2023 refused planning permission, contrary to his inspector’s recommendations. The Secretary of State refused permission largely based on heritage reasons, to which he gave significant weight, starting that the proposed development would cause harm to some designated heritage assets and that while the development would bring significant public benefits which should be accorded substantial weight those benefits did not outweigh the harm to heritage assets. As for embodied carbon impacts, to which he gave moderate weight, he stated that para 152 of the NPPF means that there should be a strong presumption in favour of repurposing and reusing buildings.

Where buildings are structurally sound and in a location with the highest accessibility levels, a strong reason would be needed to justify demolition and rebuilding; and the importance of optimising the use of the site and what alternatives are realistically available will be relevant factors in applying the presumption.

This decision was the one M&S were challenging in the High Court. The challenge was on six grounds, namely:

•the Secretary of State erred in respect of para 152 of the NPPF when he said that there is a ‘strong presumption in favour of repurposing and reusing buildings’
•the Secretary of State erred in respect of the consideration of alternatives
•the Secretary of State erred in the balance of public benefits as against the heritage impacts
•the Secretary of State’s conclusion on the harm to the vitality and viability of Oxford Street, had no evidential basis
•the Secretary of State made an error of fact in respect of the embodied carbon, and misapplied policy in respect of embodied carbon, and
•the Secretary of State erred in his approach to analysing the impact of the proposals on the seVng of Selfridges and the Straiord Place Conservation Area

What did the court decide?
The High Court judge firstly stated that the Secretary of State’s statement with regards to para 152 (now para 157) of the NPPF was a misinterpretation of the NPPF and an error of law. There was no such presumption in the NPPF. This is a clear case of interpretation not application of policy, and therefore the court was entitled to intervene, as in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 and St Modwen Development Ltd v Secretary of State for Communities and Local Government and others [2017] EWCA Civ 1643. M&S succeeded on ground 1.

Secondly, 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, contrary to the requirements stated in Horada v Secretary of State for Communities and Local Government [2016] PTSR 1271and SSCLG v Allen [2016] EWCA Civ 767 where if a Secretary of State departs from the recommendations of his Inspector, he needs to state why and in clear terms. M&S succeeded in ground 2.

Thirdly, 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’. This tied in closely with ground 4 and the importance given in the Development Plan to supporting Oxford Street and the West End as a retail and commercial development. Given that the Secretary of State had given significant weight to the

benefits of the scheme, his failure to adequately explain his approach to the loss of those benefits on refusal of the application was palpable. There was an obvious inconsistency by giving limited weight to the potential harm to vitality and viability from a refusal, but giving significant weight to the benefits, which would be lost if no scheme proceeded. M&S succeeded in ground 3.

Fourthly, the Secretary of State unlawfully failed to provide adequate reasons for concluding (in disagreement with his Inspector) that the harm to the vitality and viability of Oxford Street would be ‘ltd’ if M&S’s scheme (or an alternative) were not delivered. M&S succeeded in ground 4.

Fichly, the Secretary of State erred through a factual error and by a misinterpretation of development plan policy on carbon. The Judge said 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-serving requirements in such a significant way without anyone applying it in this way before. The approach of the SoS appears to believe that there is a ‘net zero’ requirement of, or at least aspiration for, construction impacts, in a key Development Plan policy which has never previously been applied’. The judgment confirms that it is clear the offsetting requirements in the London Plan policy SI 2C are in relation to operational carbon, and not embodied carbon. M&S succeeded in ground 5.

With regards to ground 6, the judge found that the Secretary of State had given sufficient reasoning to support his decision. Although more could have been said, it did not amount to unlawful reasons. Ground 6 was therefore dismissed.

 Original Article By Martha Grekos in LexisNexis