Marks & Spencer has won the right to demolish one of its flagship stores on Oxford Street after a High Court judge ruled the Government made a series of blunders while trying to block the plans.
The retail giant wants to flatten and rebuild its store at Orchard House, near Marble Arch, to make way for a new nine-storey building that would include retail space, a cafe, a gym and an office.
Levelling Up Secretary Michael Gove intervened to block the plans, arguing the building should be refurbished rather than demolished and that demolition would negatively impact nearby heritage assets including the Grade II* listed Selfridges store directly opposite.
However High Court judge Mrs Justice Lieven ruled on Friday in favour of Marks & Spencer, delivering a damning judgment that the Government had misunderstood planning policies and made a series of flawed or unexplained decisions.
Marks & Spencer brought legal action against the Government, Westminster City Council and Save Britain’s Heritage over the decision to thwart its redevelopment plans, with lawyers telling a the court that Mr Gove’s had made an “unusual” decision.
In June 2022, the minister stepped in to decide on the application rather than the local council, which supported the plans along with the Greater London Authority.
He refused planning permission in July 2023, overruling a Government planning inspector who gave his approval to the plans in February last year.
The inspector, David Nicholson, had said that the building was not “suited to meeting the needs for the site” and that “meaningful refurbishment” was “unlikely”, meaning demolition was the only option.
Mr Nicholson also said that blocking the plans would likely lead to the store closing, which would cause “terminal” harm to the “vitality and viability of the area” and meant the benefits of the plans outweighed any harmful effects.
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But while Mr Gove acknowledged it was unclear if there was “a viable and deliverable alternative” to demolition, there was no “compelling justification” for it.
In her ruling, the judge found Mr Gove had “rewritten” a key planning policy rather than applying it, and he had failed to properly explain why he disagreed with the planning inspector.
She said the inspector had set out why he believed “meaningful refurbishment” was unlikely, while Mr Gove does not “grapple with that issue”.
“Mr Nicholson is a highly experienced planning inspector, who is a qualified architect,” she wrote.
“If the Secretary of State is going to disagree with his conclusion … then the developer is entitled to understand in clear terms what the basis for that disagreement is.
“Otherwise, it is not possible to tell whether or not the Secretary of State is acting in a rational and lawful manner.”
The judge accepted four grounds of challenge from Marks & Spencer, and concluded Mr Gove had failed to explain his decision-making when assessing the damage to Oxford Street should the retailer pull out of the area.
“His failure to adequately explain his approach to the loss of those benefits on refusal of the application is palpable,” she wrote.
During the earlier hearing, government barrister Paul Shadarevian KC had argued: “The Secretary of State was entitled to say that in the circumstances of this case, there should be a strong presumption in favour of reusing buildings.”
“It is abundantly apparently that the Secretary of State both understood the inspector’s conclusions and gave adequate reasons for disagreeing with them.”
However Russell Harris KC, representing M&S, called Mr Gove’s decision a “legally faulty misunderstanding” of national planning policy.
