The Marks & Spencer planning row proves that politicians do not have carte blanche to ignore planning law principles, says Alison Ogley, planning and environment partner at national law firm Freeths
In the widely reported case of Marks & Spencer PLC v Secretary of State for Levelling Up, Housing & Communities, the High Court found that the government had adopted an unlawful interpretation of planning policy and that its decision to block the Oxford Street redevelopment should be quashed.
The judgment followed a legal challenge against Michael Gove, the secretary of state for Levelling Up, Housing & Communities, who had refused permission for the Marble Arch site to be demolished and rebuilt.
Put simply, the Court’s decision is nothing less than a tour de force of key planning law principles.
It has sent a clear message to both planners and our politicians, and has spelt out to decision-makers – not least the secretary of state – that planning policy does not say whatever the decision-maker simply thinks it says.
“The SoS has not applied the policy, he has rewritten it”
The ruling also confirms that those making decisions do not have carte blanche to interpret planning policy to suit their own purposes or political agendas.
In fact, as the M&S operations director, Sacha Berendji, commented following the ruling, the judgment could not have been clearer; Lieven J held: “The SoS has not applied the policy, he has rewritten it.”
The case demonstrates that when decision-makers go too far, the Court will be willing to step in to ensure that statutory planning code is adhered to. As outlined in the handed-down ruling, the judge found that the government had actually misinterpreted planning policies.
What’s more, the decision is highly unusual in that out of six grounds pleaded, five were upheld, with the Court issuing a damning critique of the lawfulness of the secretary of state’s decision to refuse planning permission for a scheme which would see the demolition of the existing M&S building and the construction of a new mixed office and retail store development.
Crucially, the secretary of state’s refusal of the planning appeal directly contradicted the recommendation of the reporting inspector. Although such a course of action is open to the secretary of state as ultimate decision-maker, the judgment is a timely reminder that politicians do not have carte blanche to ignore or depart from the findings of an expert planning inspector – if they do so, they must provide cogent reasons for doing so at the very least.
In this instance, the judge found that Mr Gove’s divergence from the inspector’s recommendation was not justifiable. Indeed, in Mr Berendji’s words, the secretary of state’s deviation from the inspector’s recommendation caused 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”.
Climate change, carbon and refurbishment vs rebuild
Of particular interest, especially in the context of increasingly active community action groups seeking to resist the grant of planning permission on apparent climate change grounds, is the Court’s dismissal of the secretary of state’s finding that national planning policy contains a “strong presumption in favour of repurposing buildings” because of the benefits this can contribute to a “low carbon future”.
The minister had said that the building should be refurbished rather than demolished after campaigners against the redevelopment expressed concerns about the carbon footprint of the new site.
Furthermore, he claimed that demolition risked impacting nearby heritage assets such as the Grade II listed Selfridges store directly opposite M&S. The Court, however, clearly held that this interpretation could not be justified having regard to the wording of the actual policy.
The Court further rejected the assertion that the demolition of the existing building would result in “harm arising from embodied carbon” and that this was a material planning consideration which weight could be attached to in refusing planning permission.
In a somewhat damning section, the Court held that the secretary of state, “appears to have become thoroughly confused on this point” and in doing so, misinterpreted one of the key policies in the London Plan – the policy applies to operational carbon impacts, not embodied carbon.
This case has undoubtedly highlighted the increasing willingness of elected officials to take climate change impacts into account in their decision-making. However, it also delivers a clear message that political expediency cannot trump the clear wording of national and development plan policy.
In instances in which decision-makers go too far with such subjective approaches, the Court will be willing to step in to ensure the law is adhered to.
Alison Ogley
Planning and environment partner
Freeths
Tel: +44 (0)345 077 9570
