Charles Wright: What does Marks & Spencer Oxford Street win over Gove mean for ‘retrofit first’?

Charles Wright: What does Marks & Spencer Oxford Street win over Gove mean for ‘retrofit first’?

Last week the High Court dramatically quashed Michael Gove’s decision to reject Marks and Spencer’s bid to demolish its Oxford Street flagship. It was the latest twist in a long-running battle fought between the retailer, conservationists and climate campaigners – but certainly not the last.

Mrs Justice Lieven’s crisp verdict on the Secretary of State’s reasoning – or the lack of it – couldn’t, as M&S commented, have been clearer. Gove’s arguments for going against expert advice to approve the scheme were by turns inconsistent, contradictory, thoroughly confused and inadequate, she said.

Gove “called in” the M&S application for his own determination in June 2022, with the ensuing public inquiry immediately billed as the first major test of “retrofit” and refurbishment versus demolition and redevelopment arguments concerning the carbon costs of construction and longer-term energy efficiency.

Inquiry inspector David Nicholson was no stranger to climate change issues, having previously found against the contentious Tulip plan for a 305-metre viewing platform in the Square Mile partly on the grounds that its use of “vast quantities of reinforced concrete” would be “highly unsustainable”. It was the first formal citing of so-called embodied carbon as a reason to refuse planning permission.

But this time, weighing up the harm caused by what he called “substantial quantities of embodied energy” that would be produced by demolition and new construction against the economic benefits of redeveloping the prominent West End site, he came down in favour of M&S.

While there should generally be a “strong presumption” in favour of reusing buildings, “much must depend on the circumstances of how important it is that the use of the site should be optimised, and what alternatives are realistically available,” Nicholson said. In this case, the “viability and deliverability” of refurbishment was in such doubt that “redevelopment is the only realistic option”. Retrofit first, but not retrofit only.

Gove disagreed, saying the scheme would “fail to support the transition to a low carbon future” as well as harming the setting of nearby heritage sites, particularly Selfridges next door. He believed alternatives to demolition had not been properly considered and that the inspector had overstated the economic harm that not progressing with the scheme would bring to Oxford Street and the wider West End.

Judicial review is, of course, about process not substance. Gove was entitled to disagree with his inspector. But if he did so he was legally required to explain why, “fully and clearly”, setting out his reasons, Lieven found. And except on heritage impact, where his reasoning, while “surprising”, was not unlawful, he had overall failed to do so.

Gove had contradicted himself on the benefits of the M&S scheme compared to the economic damage if it didn’t go ahead, and had failed to explain his estimate of that damage, which was contrary to what would be “obvious to any informed reader” of the inspector’s report or his views on the likelihood of an alternative to demolition, she said.

Critically, in arguing that there was a “strong presumption in favour of repurposing and reusing buildings” in national planning policy, Gove had misinterpreted clauses that actually contained nothing to support his position. He had “not applied the policy,” Lieven concluded. “He has rewritten it.”

Again, it was about process, she added: “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 is whether the SoS erred in law by misinterpreting the adopted London Plan policy.” Which he had.

Game, set and match to M&S? Not yet. The government could seek leave to appeal, though the rigour of the Lieven judgment might make that unlikely. And in any event the case must now go back to the Secretary of State to be “redetermined”. This will certainly take time, and could even mean a second refusal.

Where does that leave the retrofit v demolish debate? As leading planning barrister Zack Simons concludes, the verdict confirms that “retrofitting is an important and positive focus. But not in every case. And not at any cost”.  And if the Secretary of State wants to create a presumption in favour of it, “he’s actually going to need a policy which says that”.

Could that happen, as activist heritage group SAVE, which joined the court action on Gove’s side, has urged? It’s certainly possible, although experts have already noted Gove failing to double down on his Oxford Street ruling when giving the go-ahead last month to major office development on the South Bank. The “presumption” in favour of refurbishment barely got a mention in that decision.

But Gove may feel he has already made his point. The City of London Corporation’s draft Local Plan is taking a “retrofit first” approach to development, with the Square Mile seeing a growth in refurbishment schemes, and others, including Westminster Council, as Simons points out, are following suit. On demolition, this judgment notwithstanding, the bar is being raised.

Meanwhile the saga has raised new concerns about ministerial call-in powers, already voiced following the South Bank case. The Oxford Street scheme has now been held up for more than three years, despite being approved by Westminster and supported by Sadiq Khan, as well as in an inquiry verdict upheld in the courts.

That’s meant significant extra costs all round, as well the “opportunity cost for the most important traditional shopping street in the nation’s capital, for which there is no financial recompense for M&S or for London,” according to prominent planning solicitor Simon Ricketts.

“There really should be a higher threshold for call-in by the Secretary of State (whatever his or her political persuasion) of decisions which are referable to the Mayor of London (whatever his or her political persuasion),” Ricketts concludes. Will politicians vote to clip their own wings?

X/Twitter: Charles Wright and OnLondon. Support and its writers for just £5 a month or £50 a year and get things for your money too. Details HERE.

Categories: Analysis

Leave a Reply

Your email address will not be published. Required fields are marked *