Secretary of state Michael Gove stopped Pilbrow & Partners’ plans to knock down and rebuild the 1929 art deco building over concerns that the benefits of the project would not outweigh the negative heritage and environmental impact.
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However, M&S chief executive, Stuart Machin, called the move “a short-sighted act of self-sabotage”. He said that suggesting the decision was taken on the grounds of sustainability was “nonsensical”.
M&S operations director, Sacha Berendji, welcomed the High Court judgement and called on Gove to “unlock the wide-ranging benefits of this significant investment”.
Berendji added: “Today’s judgment couldn’t be clearer, the Court has agreed with our arguments on five out of the six counts we brought forward and ruled that the secretary of state’s decision to block the redevelopment of our Marble Arch store was unlawful.
“The result has been a long, unnecessary and costly delay to the only retail-led regeneration on Oxford Street which would deliver one of London’s greenest buildings, create thousands of new jobs and rejuvenate the capital’s premier shopping district.”
How has the industry reacted?
The National Federation of Demolition Contractors (NFDC) also welcomed the Court’s decision.
A spokesperson for the organisation said: “The NFDC is glad to see today’s High Court ruling, though it is unfortunate that the operations of a prime site in one of the UK’s flagship retail districts has been disrupted, delaying its much-welcomed carbon footprint improvements.
“We applaud the team at M&S and everyone involved in the project for championing a sensible mindset to sustainable redevelopment, which considers the entire lifecycle of the site, rather than applying a one-size-fits-all approach.”
Construction partner at law firm Mishcon de Reya, Justine Ayto, said the ruling proves that there are still strong arguments for demolition against retrofitting. “Whilst the original decision made it abundantly clear that it is important to consider retrofitting as part of any development project, this successful challenge demonstrates a judicial interpretation of national planning policy that supports a retrofit-first, not retrofit-only philosophy.
“It also results in a position that is more consistent with the Department for Levelling Up, Housing and Communities’ recent decision on the former ITV studios site. Retrofit will not always be the answer, and there can be demonstrable benefits to rebuilding. This is especially true when considering the impact a new building can have on the wider community, which M&S has very clearly outlined.”
‘Compelling case’
UK head of planning and environment at law firm Taylor Wessing, Alistair Watson, commented on what this decision means for M&S. “This judgment recognises that the compelling case that Marks & Spencer presented, both when it originally applied to rebuild its landmark building and in the subsequent inquiry, sat neatly within planning law and policy.
“Or, to put it differently – the secretary of state’s attempt to reverse-engineer a decision letter issued by another government official, because he had decided that the government wanted to refuse planning permission, was unlawful.
"The Planning Court has agreed that there are a number of clear cases and facts that the secretary of state had misunderstood. In light of this judgment and based on public law principles and to enable the government to make a decision with clean hands, the Inspector's Report should be considered by a new and different decision-making minister. It would be unreasonable for the same decision-making minister, who made errors in their review, to review the Inspector's Report and once again come to a decision."
