Does the ruling for Marks & Spencer bring clarity for future planning and development?

M&S must have thought all its Christmases had come at once when it was given the green light in December to demolish its flagship Oxford Street store to make way for a nine-storey redevelopment; housing a retail space, cafe, gym and office.  In a ‘will they, won’t they’ tale with enough legs for a ‘Gove V Sparks’ Netflix one-off, it’s one of the more emotionally charged cases the sector’s had to contend with.

With high-profile figures, including Kristin Scott-Thomas and Griff Rhys-Jones, urging M&S to ‘do the right thing and commission an imaginative retro-fit scheme’ – it’s perhaps no surprise the longstanding dispute attracted wide-spread media attention and sparked vigorous debate.

When it comes to a case as subjective as this, the National Planning Policy Framework (NPPF) is there to help address the ambiguities that lie at the heart of the core issues – from balancing the preservation of historical buildings with the need to regenerate urban high streets and, increasingly, when to favour retrofit over newbuild. Indeed, the document was flagged in one of the six grounds that M&S presented to the High Court earlier this year, which suggested the then secretary of state Michael Gove, had misinterpreted its guidance. This particular challenge was successful with the High Court ruling in favour of the retail giant on five of the six grounds, deeming Gove’s decision to block the redevelopment as ‘unlawful’. It was the current Secretary of State, Angela Rayner, who had the final say-so, overturning Gove’s rejection of the demolition 18 months earlier.

However, Rayner’s decision to give the scheme the go-ahead could also prompt confusion, not least for planners and developers who are being asked by local planning authorities to consider the environmental impact of projects and encouraged to favour retrofit over new build. Indeed, Oxford Street falls under Westminster City Council, which was one of the first councils to adopt ‘retrofit first’ policies. In early 2024 it stated: ‘We will not reach net zero without a significant shift in how we view development’, highlighting the promotion of ‘sustainable growth by encouraging commercial and residential buildings to be refurbished to the latest standards rather than demolished and replaced with new ones’.

In light of the latest development on the Oxford Street case, does it send mixed signals to the industry, or does it bring any clarity to developers and planners on these important issues? From the lack of viable retrofit alternatives to the failure to address the public benefits of the redevelopment, it’s worth addressing the original grounds that Gove was challenged on by M&S in the High Court.

Ground one – misinterpreting NPPF guidance

The first ground claimed that the Secretary of State misinterpreted guidance within the NPPF concerning the reuse and repurposing of buildings. Chapter 14 – pre-the revised December 2024 version – is entitled: ‘Meeting the challenge of climate change, flooding and coastal change’. It states that the ‘planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change’, helping to ‘shape places in ways that contribute to radical reductions in greenhouse gas emissions.’ In terms of how to achieve this, it says: ‘the reuse of existing resources, including the conversion of existing buildings’ should be ‘encouraged’.

Part of Gove’s original argument against the redevelopment hinged on ‘a strong presumption in favour of retaining existing buildings’, as outlined in the NPPF. But M&S argued that the repurposing and reuse of buildings isn’t explicitly required in the document, rather it’s encouraged, a point the High Court ruled in favour of.

Ground two – consideration of alternatives

This case also demonstrates that guidance on the reuse and repurposing of buildings can’t be viewed in isolation as they’re inextricably linked with the viability of other retrofit options. One of the main criticisms levelled at M&S was that they hadn’t thoroughly explored alternatives – the campaign group Save Britain’s Heritage (SAVE) argued they’d only tested light refurbishment options that were ‘bound to fail’ with Gove backing this standpoint in his final summation. However, the High Court ruled in favour of M&S’s rebuttal that they had substantially explored other options, backing their assertion that lead architect Fred Pilbrow had considered 16 alternative proposals for the site.

Balancing regeneration with impact on sites of historical interest

Grounds three and four focused on the importance of balancing renewal with the preservation of buildings, as well as factoring in the loss of a major high street retailer to Oxford Street. M&S claimed that Gove didn’t properly balance the public benefits of the redevelopment against the potential heritage impacts, a point that the High Court agreed on.

Indeed, the original planning inspector who granted permission for the scheme before it was overturned by Gove, David Nicholson, reasoned that the development plan was consistent with the NPPF, in that the public benefits of the scheme would outweigh the less than substantial harm to designated heritage assets. Rayner also agreed with this summation, indicating the ‘creation of circa 450 jobs during the construction phase, creation of circa 2,000 additional full-time equivalent jobs based on the employment density of the proposed office use and indirect employment opportunities in the wider vicinity’.

Although Rayner took SAVE’s comments into account that a refurbishment could also result in economic benefits and regeneration, she said there isn’t a ‘viable and deliverable alternative’ that could demonstrate this. She also highlighted the negative impact of a derelict building in the event of M&S leaving the location, a very high likelihood if planning permission wasn’t granted. The Inspector also highlighted these concerns in his original report, arguing its loss would result in a significant drop in footfall and damage the vitality and viability of the whole of Oxford Street and London’s West End.

Ground five – errors concerning the amount of embodied carbon

A large part of the campaign against the demolition focused on embodied carbon, with claims the project would release 40,000 tonnes of CO2 into the atmosphere throughout the building process. In its defence, M&S claimed the amount of embodied carbon released during the demolition would be offset by substantial improvements to the energy efficiency of the new building, which would deliver a carbon payback in 11 years.

It’s difficult to ascertain just how correct this claim is without seeing the original calculations or the original methodology that was used to arrive at this figure. As BCIS has highlighted over the years, there are many different carbon calculators on the market, using a variety of methodologies that omit embodied carbon from the process altogether. Indeed, as Rayner highlights in her final summation ‘the understanding of whole life carbon assessments (WLCAs) and the tools available for calculations are still developing; therefore it is no surprise that there was disagreement over the lifetime carbon usage for the proposals and, more particularly, for a refurbishment’.

However, even in the past year, the industry has evolved in terms of how it measures, reports and reduces carbon, which was reflected in the evidence presented to the High Court. In April of this year M&S made an amendment to the application proposal, proposing the completion of a whole life carbon assessment, in line with RICS guidance; stating this ‘would result in a further 10% embodied carbon reduction to the project’.

In addition to this, the judge agreed with M&S on Ground 5 that Gove was in error to say there was no dispute about whether redevelopment would involve much greater embodied carbon than refurbishment. This particular point has been fought out in evidence outlined in M&S in the Pilbrow & Partners Report for M&S and in the Arup ‘Additional Technical Documentation’ Report. The latter suggests the embodied carbon intensity of the SAVE refurbishment scheme may be greater than can be achieved with the new build. This claim was refuted by carbon consultant Simon Sturgis – one of the main authors of the RICS standard – who argued it was impossible to conclude that ‘an intelligent, contextual and creative refurbishment, possibly accommodating other uses’ would be anything other than ‘better for the environment and climate’.

In her final summation, Rayner said she didn’t think it was possible to make a definitive judgment on this point, on the basis of the evidence before her, concluding that ‘harm in terms of embodied carbon would flow from either scheme and is therefore an inevitable consequence of achieving the aspirations of the development plan’.

Either way, these arguments further demonstrate the importance of completing whole life carbon assessments to assist with these types of calculations. This process is becoming easier as we acquire more verified data that can be combined with the methodology of the updated RICS standard. In addition to this, the development of tools that are aligned with the standard will help us report and benchmark, ensuring we can supply more definitive answers for similar cases in the future.

Conclusion

Perhaps, rather than provide clarity, the M&S case highlights that as much as we can look to the NPPF for guidance there’s always a need to address the inevitable nuances that will arise with each individual case. A one-size approach to planning could become problematic. For example, a blanket ‘retrofit first’ policy could stunt development, innovation or lead to a postcode lottery in some areas where developers look to LPAs that favour redevelopment. It also may not be possible with buildings that are in poor structural condition.

But equally, the industry can’t return to an era that sidesteps the impact of embodied carbon emissions; indeed, why would it want to? Rather, cases such as this put the need for a regulated framework under the spotlight once more – if whole life carbon assessments were mandated through Building Regulations, developers would have a clearer idea of their responsibilities and a more transparent framework to operate within. With the help of evidence-based data, it would be easier to make better-informed decisions when weighing up and balancing issues of regeneration, preserving heritage sites and ensuring projects are more sustainable.

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