Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities & Ors

A planning decision-maker must interpret policy according to its wording. General encouragement to reuse existing resources does not create a presumption against demolition. A Secretary of State departing from a planning inspector’s recommendation must explain clearly why the inspector’s material reasoning is rejected. The decision-maker must also assess consistently the benefits lost if permission is refused. Carbon policies must be read as a whole: operational-carbon offsetting requirements cannot be extended to embodied carbon without textual support.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s refusal of permission for a mixed office and retail redevelopment at the western end of Oxford Street. The inspector had recommended permission, finding no viable and deliverable refurbishment alternative and concluding that the scheme’s public benefits outweighed its heritage and carbon harms.

The Secretary of State disagreed on policy interpretation, alternatives, planning balance, vitality and viability, embodied carbon and heritage settings. The claimant advanced six grounds of challenge.

1. Grounds 1–4 allowed. Paragraph 152 of the National Planning Policy Framework encouraged reuse but did not create a strong presumption against demolition. The Secretary of State unlawfully treated it as imposing such a presumption.
2. The Secretary of State could reach a different planning judgment from the inspector, but had to explain why. He failed to address the inspector’s central reasoning that structural problems and the combination of the buildings would deter meaningful refurbishment. Bare assertions were insufficient.
3. The decision letter failed to explain the apparent inconsistency between giving limited weight to harm caused by refusal and significant weight to benefits that would be lost if no scheme proceeded.
4. The Secretary of State also failed to explain adequately why harm to Oxford Street and the wider West End would be limited.
5. Ground 5 succeeded in part. The Secretary of State wrongly stated that there was no dispute that redevelopment would involve much greater embodied carbon than refurbishment. He also misinterpreted London Plan policy SI 2: its offsetting provisions concerned operational, not embodied, carbon.
6. Ground 6 failed. The heritage reasoning was adequate. The Summerskill House appeal approach was not a legal test.
7. The refusal decision was quashed.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The Secretary of State’s refusal decision of 20 July 2023 was quashed.