What does the High Court’s ruling mean for M&S’s Oxford Street plans? Lawyers give their views

How the tables have turned. It was only two days ago that the Royal Institution of Chartered Surveyors held a panel debate on the future of retrofit schemes and the ongoing impact of Michael Gove’s decision to reject Marks & Spencer’s Oxford Street plans. That decision has today been quashed by the High Court and what had been considered a watershed ruling for demolish and rebuild projects has been reversed.

While sustainability and heritage campaigners will react with dismay, high street retailers have already celebrated the sudden about turn. But what will happen now to the scheme in question?

Pilbrow & Partners’ proposals to replace the three buildings which make up M&S’s flagship Marble Arch store had been approved by Westminster council in 2021 before being backed by London mayor Sadiq Khan the following year.

They were then called in by Michael Gove and sent to a public inquiry which ended in the communities secretary ignoring the advice of his planning inspector and issuing what appeared to be his definitive rejection, which has now been successfully appealed by M&S.

However, this new development in the saga does not mean a fresh planning permission will automatically be granted. Gove will need to redetermine the appeal and could in theory still refuse planning permission, according to James Souter, partner at law firm Charles Russell Speechlys. 

“In the event that Gove were to refuse planning permission for a second time, either following a further planning inquiry or otherwise, it would be open to M&S to challenge that decision in the same way as they challenged his first decision,” Souter says.

But the High Court’s ruling has been considerably embarrassing for the government and will carry weight in any future decisions. “The planning court has agreed that there are a number of clear areas and facts that the secretary of state had misunderstood,” says Alistair Watson, UK head of planning and environment at law firm Taylor Wessing.

“This judgement 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,” he says.

“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 court’s judgement now gives the government a second chance to consider the case and “properly recognise the Inspector’s recommendation on the correct law and policy grounds,” Watson adds.

“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”

Alistair Watson, Taylor Wessing

It also opens the opportunity for the government to provide clearer planning policy on redevelopment projects and counter claims of political interference in the decision which have been levelled at Gove by M&S and retail groups.

“The High Court has held that the Secretary of State erred in law in reaching this conclusion because it was based on a meaning of the NPPF that was not open to him,” says Michael Dempsey, legal director in Addleshaw Goddard’s planning team.

“There is no strong policy presumption in the NPPF in favour of repurposing buildings as stated in Mr Gove’s decision, with the Court observing that the Secretary of State had not so much applied the policy as rewritten it.”

The initial impact of the High Court’s ruling could be to give developers greater confidence in bringing forwards contemporary new-build schemes

This could ultimately result in revisions to the NPPF, something which is likely to take time and may not be complete before the next general election. “This may not give the real estate sector the much-needed swift turnaround on policy, sadly,”  Watson says.

But the initial impact of the High Court’s ruling could be to give developers greater confidence in bringing forwards contemporary new-build schemes, even where the possibility of retrofitting existing structures is theoretically possible, according to Souter.

>>See also: To refurb or rebuild? Join the great M&S Oxford Street store debate

This is a view shared by Dempsey, who describes the judgement as a “welcome reset” for developers that “removes some of the uncertainty around government policy that Mr Gove’s decision had created”.

However, it is still within Gove’s powers to change policy and developers will have to wait before they get full clarity. “We will have to see if the next iteration of the NPPF creates the strong presumption for repurposing buildings that the refusal of planning permission in this case had been erroneously based on,” Dempsey says.