Category: Opinions | April 02, 2024
The secretary of state was heavily criticised in the recent High Court judgement to quash his decision to block the redevelopment of Marks & Spencer’s store on Oxford Street. Mrs Justice Lieven held that Michael Gove’s decision was unlawful on the grounds that he had misinterpreted the provisions of the NPPF to create a strong presumption in favour of the reuse of the building where no such presumption exists.
The High Court also ruled that he did not provide adequate reasons for concluding in disagreement with the planning inspector and confirmed that offsetting requirements in the London Plan relate to operational and not embodied carbon.
So where does this leave the retrofit versus rebuild battle?
First, this case 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 are trying to get ahead of the game by inserting a “retrofit first policy”. These include the draft local plan by the City of London Corporation, which is out for consultation, and the partial review of the local plan by Westminster City Council, which is also out for consultation. Both councils have inserted policy proposals that recognise that demolition and rebuild are the best option in some cases, although they encourage developers to fully investigate options for retrofit and extension at the outset. They also include whole-life carbon assessments in planning applications.
However, these are not yet in force and in their absence and the lack of presumption in favour of repurposing and reusing in the NPPF, the Hiigh Court had no choice but to make the decision it did. 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.
Second, 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 planning inspector. We all know that the safest approach is to always be as transparent as possible, especially when contentious decisions are being made. The secretary of state received another telling off here.
Last, this case highlights the tension between politics and planning. The secretary of state went against everyone else’s decision in favour of granting planning permission – Westminster Council, the Greater London Authority and even his own planning inspector. Some people therefore argue that there should be a higher threshold for the call-in by the secretary of state of decisions that are referable to the Mayor of London.
It will be interesting to see how planning applications evolve with the new “retrofit first” policies and whole life carbon assessments and if other local planning authorities will follow suit. Yes, there will be an impressive plethora of green building ‘badges’ when these applications come forward, but every scheme needs to be mindful of how it engages with its community, and investment partners and funders are likely to take an increasingly stringent stance on ESG. It is fair to say that a retrofit versus rebuild battle may have been won, with rebuild emerging victorious, but the war is far from over.
