London—Dentons has advised UK retailer Marks & Spencer on its planning victory relating to the multi-million-pound redevelopment of its flagship Marble Arch store. 

In 2023 the previous Government rejected Marks & Spencer's application for planning permission, despite an expert Inspector's recommendation to approve the scheme. That decision was found unlawful and quashed by the High Court in March 2024, following which the Secretary of State was compelled to reconsider the scheme.

The Deputy Prime Minister and Secretary of State (SoS) for Housing, Communities and Local Government has now granted permission for Marks & Spencer to demolish and redevelop the three buildings which make up Marks & Spencer's flagship store. The site is adjacent to the Grade II listed Selfridges department store. 

Earlier this year the High Court agreed with Marks & Spencer that the previous SoS had “misinterpreted and wrongly applied planning policy” by blocking the scheme. The judgment clarified that while national policy encourages to repurpose existing buildings, it came nowhere near a policy presumption of doing so.

Dentons partner Roy Pinnock, who leads the firm's Planning & Public Law team, advised Marks & Spencer on the planning strategy, public Inquiry and High Court challenge in this lengthy case. He said, "The High Court confirmed that there is no national policy presumption requiring retention / re-use of existing buildings. Predictability is important to giving the confidence to invest – in that sense it is also a good reminder that in a plan-led system, what the plan requires for sites is a crucial starting point. 

"The new Secretary of State's decision makes clear that the onus is on investors to consider realistic options for re-using buildings when developing. It also underlines that this needs to be balanced against the needs to optimise particular sites in the wider public interest. M&S exposed the so-called alternatives as unsuitable, undeliverable or irrelevant (and unable to deliver the substantial regeneration benefits of its proposals). The M&S team were able to deal with the deluge of information piled onto the process and remain focussed on explaining the positive case for investment and change".

"The challenge, in a planning system that is wisely quite discretionary, remains being clear at the outset what the requirement (in terms of public good) is for the site; without that, there is a risk that designing and deciding on investments is exposed to last minute hypothetical pies in the skies."

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