Marks & Spencer gearing up for start of High Court challenge on Oxford Street ruling

The long-running saga over Marks & Spencer’s plans to redevelop its flagship Oxford Street store will kick back into gear tomorrow when the landmark case heads to the High Court.

The retailer is challenging Michael Gove’s decision six months ago to reject the controversial Pilbrow & Partners-designed scheme on environmental and heritage grounds following a closely watched public inquiry.

The two day hearing will see M&S go up against the communities secretary and Save Britain’s Heritage, the campaign group which put forward a crowdfunded team to lead the case against the scheme at the public inquiry in 2022.

Gove’s decision to ignore his planning inspector’s recommendation for approval has become highly influential among objectors to demolish and rebuild schemes, frequently quoted by campaigners during planning consultations.

But it was robustly criticised by the boss of M&S, Stuart Machin, who called the communities secretary “utterly pathetic” for blocking the redevelopment and claimed the move had left the retailer’s future on Europe’s largest shopping street in doubt.

The proposals would have seen the demolition of three buildings currently occupied by M&S, including the 1929 Art Deco Orchard House, and the construction of a 10-storey replacement store and office block.

Sacha Berendji, M&S operations director, has now argued Gove’s ruling had made it “impossible” for developers to interpret planning policy and could be a “disaster” for the transition to net zero.

“We will set out our case for why the secretary of state’s decision to block our proposed redevelopment of our Marble Arch site – which ignored advice from the independent planning inspector and support from Westminster city council, the London mayor and Greater London Authority – misinterpreted and wrongly applied planning policy, with every one of the six counts we raised approved by the Court to proceed to this hearing,” Berendji said.

“When our proposal to bring one of London’s most sustainable and energy efficient buildings into the heart of the West End is rejected and other schemes with lower sustainability benefits are going ahead, it makes it impossible for developers to interpret planning policy, freezing investment and leading many to ask ‘why bother’, which is a disaster for the economy and the transition to Net Zero.”

Members of Save Britain’s Heritage are expected to be at the court on Tuesday and Wednesday to support Gove, although it is understood that only lawyers will be speaking.

The group’s director Henrietta Billings said that Gove had made the “right decision”, adding that it was important for the campaigners to hold firm and maintain their position.

“The M&S Oxford Street case captured the public’s imagination and attracted widespread media interest,” Billings said.

“It put carbon firmly at the heart of the debate and challenged the UK’s disposable attitude to buildings. It was the first time a planning inquiry had sustainability and heritage as its joint focus – two fundamentally important issues that go hand in hand and are mutually re-enforcing.”

The case had hinged on whether a full rebuild or a refurbishment of the existing store would be more sustainable, with the retailer arguing the greater energy efficiency of the new building would offset the embodied carbon emitted by a rebuild.

Statements backing Save’s case at the inquiry were submitted by more than 30 people, including actor and campaigner Kristin Scott Thomas, broadcaster Griff Rhys Jones, London Eye designer Julia Barfield and author Bill Bryson. The group raised more than £20,000 from members of the public to fund its legal costs for the case.

Rhys Jones has called the decision “very sensible and sound” and “an ecological victory”. 

Michelle Ludik, an architect and specialist in adaptive reuse at global firm HOK, has said: “It is absolutely a milestone in changing minds and turning heads about the climate impact of demolition of existing buildings and of course a victory for the importance of retaining heritage in our built environment.” 

Steve Tompkins, Haworth Tompkins founder and co-founder of Architects Declare, said: “We can’t afford to carry on demolishing decent, solid buildings when there are feasible alternatives. 

“I hope [the Secretary of State’s] decision points to a wider realisation by government that our whole industry needs to prioritise low-carbon retrofitting to drive down construction emissions, particularly in this pivotal decade.”

M&S, which has occupied Orchard House and two attached buildings for nearly a century, had received approval from Westminster council in 2021 for the redevelopment.

The plans were later backed by London mayor Sadiq Khan, but were called in by Gove in 2022.