On 1st March 2023, the High Court (J Lieven) quashed the Secretary of State’s (July 2023) decision to refuse planning permission for the redevelopment of Marks and Spencer’s store on Oxford Street.

Montagu Evans acted as Historic Environment and Townscape advisers.

M&S succeeded on five of the six grounds of challenge:

1️⃣ The Secretary of State’s statement that “there should generally be a strong presumption in favour of repurposing and reusing buildings, as reflected in paragraph 152 of NPPF [now para 157]” was a misinterpretation of the NPPF and an error of law; there is no such presumption;

2️⃣ The Secretary of State unlawfully failed to explain why he disagreed with his Inspector’s conclusion that there was no viable and deliverable alternative to the proposed scheme;

3️⃣ The Secretary of State unlawfully failed “to grapple with the implications of refusal and the loss of the benefits and thus departure from important Development Plan policies”;

4️⃣ The Secretary of State unlawfully failed to provide adequate reasons for concluding (in disagreement with the Inspector) that the harm to the vitality and viability of Oxford Street would be “limited” if M&S’s scheme (or an alternative) were not delivered;

5️⃣ The Secretary of State’s erred through a factual error and by a misinterpretation of development plan policy on carbon. The judgment confirms that offsetting requirements in the London Plan are in relation to operational carbon, and not embodied carbon. J Lieven found that the misinterpretation may have led the Secretary of State to draw a different conclusion than he would have done otherwise.

Timur Tatlioglu, Chris Miele, Nick Pond and Helen Marrison advised for Montagu Evans.

Congratulations to Marks and Spencer and its legal team, Russell Harris KC and Heather Sargent, as well as Roy Pinnock, Megan Forbes and Melanie Blanchard at Dentons.

The full judgment is here: https://assets.caselaw.nationalarchives.gov.uk/ewhc/admin/2024/452/ewhc_admin_2024_452.pdf

Image Credit: Marks and Spencer