This is not just a planning refusal, this is an M&S planning refusal

This article was co-authored by Nikita Singh, Trainee Solicitor, London.

The UK’s Secretary of State for Levelling Up, Housing and Communities, Michael Gove, has rejected an application by Marks & Spencer to demolish its flagship store on Oxford Street and replace it with a nine storey mixed use development, despite a planning inspector’s recommendation for approval following a lengthy public inquiry. This article focusses on the embodied carbon emissions reasons for refusal and potential consequences for planning.

Background

Despite initial support from the local planning authority, Westminster City Council, and no objection from the Mayor of London, a public inquiry into the plans to demolish and develop the Marks & Spencer store was directed by the Secretary of State in June 2022 amid heritage and carbon concerns raised by campaigners, through a planning process known as “call-in”.

In their opening inquiry submissions, SAVE Britain’s Heritage argued that the proposal to demolish the historic 1920s building would release ‘nearly 40,000 tonnes of CO2 into the atmosphere’. They suggested that the building should instead be refurbished, in line with the National Planning Policy Framework (NPPF) guidance, to transition to a low carbon future. In particular, they emphasised the encouragement of the ‘reuse of existing resources, including the conversion of existing buildings’. The retailer’s response explained that the option of retrofitting the Marble Arch store had been explored. However, the poor-quality structure of the building and challenges related to asbestos would render this option unworkable. It argued that any significant redevelopment of the existing structure would produce additional carbon emissions and fail to deliver as many benefits as the new proposed building. The planned new development would use 25% less energy than the existing building and would have a maximum carbon payback of 17 years, and potentially less than 10.

Planning inspector’s recommendations

Following the public inquiry, planning inspector, David Nicolson, produced a report (the report) in February 2023 recommending that permission for the application be granted. The report concluded that the scheme should go ahead, in part, because any decision that made closure and partial vacancy of the site more probable ‘would intensify the concerns for the vitality and viability of Oxford Street’. If the scheme was not approved ‘sooner or later’, the store would close, as there would unlikely be ‘meaningful refurbishment’ of the building in the foreseeable future.

On the issue of carbon emissions, the report found that, although the extent of embodied energy required for redevelopment would weigh most heavily against the scheme, the benefits of the project outweighed the harm. On a technicality, the inspector also drew attention to why the ‘extreme complications’ of the existing connected buildings would render refurbishment an unachievable option.

Interestingly, the report anticipated the headline decision was likely to receive widespread publicity. Hence, the report specifically alludes to the issue of precedent: it stated that a refusal would likely signal the Government is serious about the extent to which embodied carbon is contributing to the climate crisis, whilst granting permission would have the opposite effect.

Although the report flagged that this was a legitimate concern, it concluded that none of the policies explicitly prohibited demolition and redevelopment in appropriate circumstances, justifying the recommendation for approval of the application.

The report, however, was merely a recommendation, and the final decision lay with the Secretary of State.

Decision

In the Secretary of State’s written decision of 20 July 2023, Michael Gove rejected the recommendation and refused permission for the application. Whilst a major reason for refusal was heritage issues, on embodied carbon, Gove said the development of the proposed new structure would ‘impede the UK’s transition to a zero-carbon economy’.

Gove was not convinced that Marks & Spencer had exhaustively considered the alternatives of repurposing the building. He also disagreed with the inspector’s assessment that refusal of the development would result in substantial harm to the viability of Oxford Street and the surrounding area.

In contrast, Gove considered that (contrary to the wording of the NPPF):

A political outcome?

In a two year process, during which the proposals were supported at each stage by three separate layers of the planning process - Westminster City Council, the Mayor of London and the planning inspector - the single decision by Michael Gove to refuse the application at the final stage, without the emergence of substantial new information or persuasive justification, is somewhat of a curveball.

Those who spotted Kennedys’ planning expert, Tim Stansfeld, in the most recent series of Clarkson’s Farm on Amazon Prime, will be familiar with the potential overtures of political decision making throughout the ostensibly democratic planning process.

It is difficult not to see similar hallmarks of planning being used for political ends in this case. References to the levels of embodied carbon emissions in Michael Gove’s written decision, an issue raised extensively by the RetroFirst campaign and SAVE Britain’s Heritage, indicate that his conclusion to reject the scheme may well be the result of intended signalling of the Government’s seriousness on the climate emergency, a possibility highlighted within the inspector’s report.

The likely impact on developers was also underscored by Marks & Spencer in their response. They suggested that the disregard for the expert opinion of the appointed planning inspector will ‘be felt far beyond M&S and the West End’. It emphasised the importance an approval would have had in giving confidence to future sustainable regeneration and investment.

The refusal demonstrates the consequences of the call-in process. The fate of major high value planning schemes being potentially left to the hands of a single individual is of sufficient concern for potential domestic and foreign investment into the UK, without the risk of such power being used for potentially political means.

This decision further highlights the importance of providing comprehensive evidence during a planning inquiry process, to not leave the political door open to unfavourable decisions. Michael Gove’s decision criticises a lack of “an appropriately thorough exploration of alternatives to demolition” which developers, facing public inquiries on similar issues, would do well to observe.

Comment

There is no doubt that the landmark decision is likely to become one of many challenges to the way developers assess how buildings should be repurposed.

It is important therefore, that to enable a sector-side transformation towards refurbishment, the guidance relating to carbon considerations in developments goes beyond a single decision. Developers need to be able to rely on clearer set standards, including the recommendations of government appointed experts, in order to encourage developers to engage with emerging policies, rather than retreat from them.

Read others items in Construction Brief - November 2023