London—Leading global law firm Dentons advised UK retailer Marks & Spencer on its high-profile planning victory in a case relating to the multi-million pound redevelopment of its Marble Arch store. The Secretary of State (SoS) for Levelling Up, Housing and Communities had rejected Marks & Spencer's request for planning permission in July 2023, despite his Inspector's recommendation to approve the scheme. This decision has now been found unlawful and quashed by the High Court.

The proposal concerned the redevelopment of the three buildings which make up Marks & Spencer's Marble Arch department store. The site is adjacent to the Grade II listed Selfridges department store.

The SoS claimed the project would harm Selfridges and would fail to support the UK’s ambitions to transition to a low-carbon future, relying on a strong national presumption in favour of retaining and re-using existing buildings.

The High Court agreed with Marks & Spencer that the SoS had “misinterpreted and wrongly applied planning policy” by blocking the scheme.

Mrs Justice Lieven found that while there is a policy encouragement to repurpose existing buildings, it came nowhere near a policy presumption of doing so.

She found the SoS had also not provided “adequate reasons” why he thought there would not be a significant impact on both Oxford Street and the wider designed West End International Centre if Marks & Spencer did not invest or decided to quit the site.

The SoS will now reconsider the scheme in light of the judgment.

“The result has been 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,” Sacha Berendji, director of operations at Marks & Spencer, said in a statement.

Dentons partner Roy Pinnock, who leads the firm's Planning & Public Law team, advised Marks & Spencer on this lengthy case. He said, "This is a helpful, clear judgement that takes things back to where they were before the decision. It confirms 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 judgment also helpfully confirms that net zero policies in London are focussed on operational, not embodied carbon.

"Understanding the Whole Life Carbon position for development is crucial but it is not the beginning and the end – creating places that inspire, endure and contribute to a sustainable future is the challenge.  We are going to need clearer policies nationally to avoid the opportunistic approach by objectors but in London there is a sensible policy context which needs to be applied with clarity.

"The challenge, in a planning system that is wisely quite discretionary, is to be 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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