New vs Renew: the aftermath of the High Court judgment on the M&S development

The “New or Renew” debate remains a hot topic and particularly so in the context of how the UK should meet the Government’s aspirations for 1,500 homes across the life of the Parliament. The Government has launched a survey on exactly this subject – available here. 

The application, call-in inquiry and subsequent High Court decision relating to Marks and Spencer’s (M&S) proposed development on Oxford Street invigorated the debate as to when new build should be allowed and when all or part of existing buildings should be preserved. We set out below a summary of what has happened since the High Court’s judgment.

M&S – the decision

In March 2024, the High Court quashed the decision made on behalf of the then Secretary of State’s (Mr Gove) to refuse planning permission for M&S’s proposed re-development of its Oxford Street store. 

Mr Gove’s decision considered, and the Court’s judgment focused on, the policy test for embodied carbon (as contained in the London Plan) and the extent to which refurbishment as an alternative to redevelopment should be assessed when deciding whether to grant planning permission. The Secretary of State concluded that there was not enough evidence to confirm whether or not there was a deliverable alternative to the M&S scheme.   

For more details of this case, listen to our podcast, available here.

M&S – where are we now

Following the Court’s judgment, the M&S application is with the Secretary of State, now Angela Rayner, for redetermination. 

There have been a number of developments since the original call-in application: 

• Westminster City Council is in the process of reviewing its local plan to include the introduction of a “retrofit-first” policy. The intention is to prioritise refurbishment over demolition thereby limiting the impact of development on climate change. Other authorities have already proposed or adopted such policies.
• “SAVE Britain’s Heritage”, the interested party opposed to the redevelopment, has written an open letter to the new Secretary of State, urging her to refuse permission on environmental and heritage grounds (see here).
• In July 2024, Historic England produced an advice note on “Adapting Historic Buildings for Energy and Carbon Efficiency” (see here).

Industry bodies such as the Council of Tall Buildings and the London Property Alliance are acutely aware of the significance of this debate. 

In July 2024, the London Property Alliance produced a paper on “Retrofit First, Not Retrofit Only” (available here) calling on the Government to provide national policy guidance on how best to establish when demolition and redevelopment provides greater benefits than retrofit. In the absence of such policy, there is a lack of consensus as to best practice in addition to inconsistent decision making. 

Final thoughts

The Government has made it very clear that it is supportive of accelerating development, particularly in urban / brownfield sites (see here for more details). Given this direction of travel and the Court’s decision, some would consider it surprising if M&S did not gain consent for their scheme on Oxford Street. However, there is no guarantee – whether permission should be granted remains a matter of planning judgment.

Ultimately it will be interesting to see how the Government elects to balance easing restrictions on development in urban areas while addressing issues of embodied carbon given the net zero transition and impacts on heritage.