The perpetual struggle between the environment, heritage and development: the M&S decision vs 55 Bishopsgate

A recent Secretary of State intervention preventing the demolition and rebuild of the Marks & Spencer store on Oxford Street has caused pause for thought as to what this might mean for development in London, whilst elsewhere, proposals for what would become London’s third largest skyscraper overcame a significant planning hurdle. Sophie Willis and Sam Lear look into what can be gleaned from these developments.

On 20 July 2023, the Secretary of State (the “SoS”), Michael Gove, refused planning permission for the proposals to demolish the Marks & Spencer (“M&S”) store on Oxford Street. The full proposal involved the demolition of three existing buildings and the construction of a nine storey mixed use development comprising retail, café/restaurant, office and gym. The decision was controversial for a number of reasons, not least because the Planning Inspector recommended that the application should be approved.

The vast majority of planning applications are determined by the local planning authority, however the M&S application was ‘called-in’ for determination by the SoS. The SoS typically only uses ‘call-in’ powers of planning issues that are of ‘more than local importance’.

The SoS’ decision to ignore the Inspector’s recommendation has received widespread attention. The difference in decision making can broadly be attributed to two factors:

1. Heritage: the Inspector considered that harm to the setting of Selfridges (a grade II* listed building) would be less than substantial with an overall conclusion that this harm (in addition to harm to the setting of the conservation areas) would carry moderate weight. By contrast, the SoS considered that harm to designated assets carried very great weight.

2. Carbon impacts: the SoS concluded that the proposal would “fail to support the transition to a low carbon future, and would fail to encourage the reuse of existing resources, including the conversion of existing buildings”. The SoS further considered that the embodied carbon that would go into the construction of the proposal would carry moderate weight. In so doing, the SoS attributed greater weight to the adverse carbon impact of the proposals than the Inspector.

In the decision, the SoS drew attention to the Inspector’s comment that there is a “growing principle that reducing climate change should generally trump other matters”. However, there is also recognition that there may be concern that this decision may act as a precedent. The SoS highlighted that the decision is fact specific, with particular emphasis on the relevant development plan policy matrix.

Meanwhile, moving east into the City of London, the proposed development of 55 Bishopsgate has been given the green light by the City of London Corporation. This is despite opposition from St Paul’s Cathedral and Historic England, which have argued that the new building would tower over St Paul’s Cathedral and would otherwise diminish London’s historical skyline. The proposals are to demolish the existing twentieth-century building and replace it with a 63-storey glass building, joining the cluster of skyscrapers occupying the Square Mile. The proposals will now sit on the Mayor of London’s desk for approval.

There is some concern that the SoS might make a similar intervention for 55 Bishopsgate as he has with M&S: if Government sentiment and decision-making supports refurbishing existing buildings rather than demolishing and rebuilding in order to meet environmental targets, it could put developments like 55 Bishopsgate at risk.

Whilst time will tell, it seems unlikely that the Government would shift national policy to such an extent that demolitions become a thing of the past as this would have a significant and serious impact on development in London. Instead, the Mayor and the Government will continue to consider each development on its own merits, but any proposals for demolition will need to be very carefully justified. Given the potential economic boom that 55 Bishopsgate would provide – meeting 14 percent of the City of London’s commercial office space targets – it may be the case that the benefits of that scheme will win the day and outweigh any harm. Nonetheless the M&S decision highlights how sensitive decision making can be to the mindset of the individual decision maker.