Marks and Spencer decision: prioritising retrofitting over redeveloping

On a called-in application, notwithstanding the Planning Inspectors positive recommendation, the Secretary of State for Levelling Up, Housing and Communities (SoS) has rejected planning permission for demolition and development of Marks and Spencer’s flagship Oxford Street store. In rejecting the plans, the SoS focused on two main aspects - heritage and sustainability.

Heritage

A significant consideration in the SoS’s refusal, and one to which he gave “very great weight”, was the harm of the new building to the setting and significance of the designated heritage assets. In particular, the proposed development “would be prominent and distracting from the Selfridge’s façade”.

In seeking to justify the development, much was made of the fact that the existing building was a non-designated heritage asset and had been rejected by Historic England for listing. Despite this, the Secretary of State supported the position put forward by Historic England that the existing M&S store had stylistic similarities to Selfridges. It was highlighted that the buildings shared “a similar structural and façade design (incorporating classical detailing, stone cladding and metal spandrel panels), in addition to a consistent roofline”, such that the loss of the existing building amounted to “a missed opportunity to retain, reuse and adapt the good quality elements of the site”.

The weighting placed on the impact to heritage assets in the SoS’s decision may encourage local planning authorities to err on the side of caution when considering the impact of an application on surrounding listed buildings. This has potential to impact a large number of applications where a non-designated heritage asset (which is the subject of the application) is in the vicinity of, and provides a backdrop to, other relevant heritage assets, a common occurrence in many London boroughs.

Sustainability

The SoS was of the view that the application failed to demonstrate that the products and materials of the current building had been “kept at their highest use for as long as possible” and to grant permission would therefore be contrary to planning policy.

Whilst the SoS’s decision letter did state that this case turns on its own set of facts, it appears developers must now be able to demonstrate that the building can no longer be used in its current form, with the only option being demolition. Specifically, the SoS stated “he does not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the Secretary of State that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding”. This sets a high bar and must be given great consideration by applicants.

Following the SoS’s finding that the development is “clearly not net-zero carbon” because of the substantial amount of embodied carbon that would go into construction, in the future, developers must not only set out alternative schemes (including why they are not appropriate or would use more carbon), but also consider the circular economy of whole life carbon and explore why the current building is not suitable for retrofit. In the case of Marks and Spencer, the SoS sets out that the carbon required for the construction of the new building would obstruct the UK’s net-zero target, stating that the proposals would fail to support transition to net-zero and would fail to encourage reuse of existing resources. Drawing distinction between a “sustainable building and a sustainable site strategy”, in this case the SoS did not consider the new plans would achieve the latter.

Previous manifestation of heritage and sustainability issues

Whilst this is the first call-in from the SoS which appears to have sustainability and heritage as its dual focus, it is not the first time we have seen these issues considered. Appeals, such as that for the Tulip development, considered similar issues in its rejection.

The inspector considered the development “would cause considerable harm to the significance of the Tower of London, and further harm to other designated heritage assets.”

Similarly, the SoS agreed “that the extensive measures that would be taken to minimise carbon emissions during construction would not outweigh the highly unsustainable concept of using vast quantities of reinforced concrete for the foundations and lift shaft.”

Outside of the application and appeal process, the chairman of the UK Government Committee on Climate Change is quoted to have said at the Ecocity Summit in the Barbican Centre that, “no planning application should be granted without full consideration of the commitment to net zero”.

The continued and strengthening application of these issues begins to signal the shift in planning policy.

Future considerations

Sustainability credentials and levels of embodied carbon will play an important role in the success of an application for demolition and redevelopment. Planning applications will need to consider the whole life cycle of a building as local authorities begin to actively implement their zero carbon policies and that contained in the London Plan, which increasingly impose stringent low carbon policies.

We have seen local authority movement towards this, with Westminster setting up a retrofit taskforce in late 2022 who “are working to create and deliver a detailed plan to drive forward work on retrofit of [their] existing building stock”.

The independent review of the UK’s Net Zero from January 2023 stated that “economic opportunities [were] being lost due to a lack of consistent long-term policy or investment”. Whilst the NPPF currently supports the transition to a low carbon future, this issue may well be addressed more extensively in the next NPPF review and iteration; currently expected in Winter 2023. Indeed, in the M&S decision, the SoS expressly stated that “policy in this area will continue to develop and in due course further changes may well be made to statute, policy or guidance”.

This decision in the Marks and Spencer case is our first tangible evidence of the direction of Government policy. This case signals a shift towards retrofit and away from wholesale redevelopment; perhaps an indicator of Government plans to introduce carbon legislation in the industry or further developments in the near future.

This article was co-authored by Paralegal Jennifer Glasgow.