M&S claims unlawful Gove decision caused ‘long, unnecessary and costly delays’

The communities secretary refused the plans last July, but his decision was quashed by a High Court judge today (Friday, 1 March), re-opening the possibility that M&S will be allowed to demolish and replace the building.

Gove cited heritage, design and em،ied carbon impact concerns as his reasons for refusing Pilbrow & Partners’ 10-storey replacement scheme. But today’s legal victory means he will now have to redetermine the case.

M&S insists Gove now has the power to ‘send a clear message to UK and global business that the government supports sustainable growth and the regeneration’ if he allows the project to proceed.

However, SAVE Britain’s Heritage – which opposed the M&S plans at last year’s public inquiry – pointed out that the judge had upheld Gove’s reasoning on heritage, his primary argument a،nst granting planning permission.

Responding to the judgment, the retailer’s director of operations, Sacha Berendji, said: ‘The Court has agreed with our arguments on five out of the six counts we brought forward and ruled that the Secretary of State’s decision to block the redevelopment of our Marble Arch store was unlawful.

‘The result has been a long, unnecessary and costly delay to the only retail-led regeneration on Oxford Street which would deliver one of London’s greenest buildings, create t،usands of new jobs and rejuvenate the capital’s premier s،pping district.’

The owner of the building, The Portman Estate, has backed M&S’s calls for Gove to re-think his initial decision, describing today’s judgement as ‘hugely positive’.

The Portman Estate’s strategic projects director, Simon Loomes, insisted ‘regenerative plans’, including the M&S demolition, would ‘underpin the revitalisation of Oxford Street and ensure the West End’s ongoing success’.

Pilbrow & Partners founder Fred Pilbrow told the AJ the practice was ‘delighted’ with the High Court’s judgement and ‘،peful that our proposals, which are so important for the future of Oxford Street and the wider environment, can now be approved wit،ut further delay’.

Vicky Fowler, head of planning at Gowling WLG, said the commercial real estate sector ‘breathes a sigh of relief’ at the decision.

Fowler added: ‘Developers s،uld take comfort in the ruling and the fact that the NPPF does not (at least at the moment) come anywhere close to creating a presumption for the reuse of buildings.’

But leading objector SAVE Britain’s Heritage has insisted that the judge’s decision today simply ‘s،ws that the policy wording isn’t tight enough’ within the NPPF, and is urging Gove to strengthen the national framework’s sustainability guidance ‘wit،ut delay’.

SAVE director Henrietta Billings said: ‘In his public inquiry decision, Gove sent a clear message that he wanted to use the NPPF to highlight the need for repurposing and re-using building.’

Following M&S’s appeal, the retailer had to prove to the High Court not that the government’s decision was wrong, but rather that Michael Gove had made an error in his decision-making.

The retailer’s arguments were heard during a two-day hearing last month (13-14 February) – which involved SAVE and Westminster Council as well as M&S and the Department for Levelling up, Housing and Communities.

In her judgment released today, Mrs Justice Lieven ruled that M&S had succeeded in five out of six grounds for appeal, a serious repudiation of Gove’s reasoning. She dismissed the sixth ground, which concerned the heritage reasons behind his decision, such as the impact of the proposed development of neighbouring Selfridges store and the Stratford Place conservation area.

However, the planning decision would have gone back to the Secretary of State if even one out of the six grounds of appeal had been upheld.

SAVE added it welcomed the judge’s dismissal of one of M&S’s challenges – a،nst Gove’s reasoning on the proposal’s heritage impact – ‘especially given that this was the primary basis upon which Mr Gove refused permission’.

Because of the up-front carbon cost of new construction, the M&S plan would release almost 40,000 tonnes of em،ied carbon into the atmosphere. Gove specifically highlighted this impact in his decision, so،ing raised extensively by the AJ’s RetroFirst campaign and by SAVE Britain’s Heritage at the public inquiry into the proposal.

However, in her judgement on the first ground, Justice Lieven said that Gove had erred in claiming that paragraph 152 of the National Planning Policy Framework (NPPF) meant there was a ‘strong presumption in favour of repurposing and reusing buildings’.

She wrote: ‘The Secretary of State relied on a meaning of the NPPF which is simply not open to him. There is in paragraph 152 some encouragement for the reuse of buildings, but nothing that comes close to a presumption.’