Partner Alex Ground and associate Annabelle Lee provide key updates on the M&S Oxford Street redevelopment and share insights into the evolving planning landscape.
The Russell-Cooke planning team previously reported on the Marks and Spencer (M&S) Oxford Street redevelopment proposal (Proposal) in September 2023. The Secretary of State (Secretary) at the time, Michael Gove, called in and rejected the Proposal despite the local authority resolving to grant planning permission in 2021. The key reasons for Gove’s rejection of the proposal were due to the negative impacts of the Proposal on nearby heritage assets and embodied carbon from demolition. Gove considered that the existing building should be refurbished rather than demolished.
What has happened since?
Gove’s decision was subsequently challenged and quashed by the High Court in March 2024 on the basis that it was unlawful, the developer succeeding on five out of the six grounds contended. The High Court concluded that Gove had made a number of errors, failed to give adequate reasons and made decisions without sufficient evidential basis.
Importantly, the High Court clarified that the relevant provisions of the National Planning Policy Framework (NPPF) do not create a strong presumption in favour of repurposing and reusing buildings. The court also found that Gove had incorrectly assessed the London Plan policy relating to the issue of embodied carbon, which only applies to operational carbon in the redevelopment and not embodied carbon in the existing building.
The High Court remitted the decision to the Secretary, now Angela Rayner, for redetermination. In December 2024 Rayner accepted the Proposal and granted planning permission for the demolition of three existing buildings and the construction of a ten-storey redevelopment.
What were the main issues and what did Rayner conclude?
- Heritage – the harm to designated and non-designated heritage assets as a result of the Proposal was given substantial weight. In particular, the harm that would be caused by the loss of Orchard House and to the nearby Selfridge’s.
- Alternatives – Rayner was satisfied that refurbishment of the site would be so deeply problematic that no one would be likely to pursue or fund it. She concluded that there was a compelling justification for demolition and rebuilding as opposed to refurbishment. Although the NPPF encourages the reuse of buildings, in this case Rayner concluded that the options for retaining the buildings had been adequately explored and that there was no viable nor desirable alternative.
- Zero-carbon considerations – calculating embodied carbon is a developing field. Rayner observed that embodied carbon is an inevitable consequence from both refurbishment and demolition/rebuild, and that there is evidential uncertainty about the differences between the two. In relation to operational carbon impacts (which, as the High Court clarified, is what the relevant policy in the London Plan actually addresses), an appropriate contribution was secured via the section 106 agreement by way of a carbon offset fund that would be used to deliver carbon reductions.
- Public benefits – Rayner gave substantial weight to the public benefits of the Proposal, including the advantages of concentrating development in such a highly accessible location, the significant employment and regeneration benefits and the high-quality office space which would be provided.
On balance, Rayner considered the public benefits of the Proposal to outweigh the harm to heritage assets and concluded that permission should be granted.
What are the key takeaways from Rayner’s decision?
Many businesses and investors have been eagerly awaiting the outcome of this case and Rayner’s decision has been viewed by many as a positive signal for businesses, particularly those in high street locations across the United Kingdom.
The decision is likely to give developers a greater appetite for progressing proposals that are seen to have significant public benefits and that are the most appropriate and/or viable option for a particular site. Rayner’s decision is a strong indicator that case-by-case analyses are required and that refurbishment is not to be preferred in every situation.
Embodied carbon remains a hot topic but has still not been addressed any further at a national policy level. The uncertainties in calculating embodied carbon impacts and, in this case, the lack of policy direction at a local level requiring that embodied carbon be taken into account, were clearly factors that influenced Rayner’s decision.
Alex Ground is a partner in the real estate, planning and construction team, often acting for property developers, strategic land owners, property owners and energy companies on all aspects of planning, highways and compulsory purchase, including planning applications, appeals, s106 agreements, challenges and enforcement. Annabelle Lee is an associate, also in the real estate, planning and construction team, advising a variety of clients such as infrastructure providers and private developers, on environmental and planning law issues.
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