Judge: decision to halt demolition of flagship M&S store was “unlawful”

(IMAGE: M&S)

The retail giant had been granted permission to demolish and redevelop its multi-storey ‘Marble Arch’ department store by both Westminster Council and City Hall back in November of 2021.

Shortly afterwards however, the application was referred to the UK’s Secretary of State for Levelling Up, Housing and Committees, Michael Gove, who intervened.

After issuing a block on the project and ordering a report into the proposed works, Gove withdrew the project’s planning approval in July of 2023 - going against the recommendations of the report he ordered, which was carried out by the government’s own expert advisor.

While his refusal was based on a number of grounds, in his official Decision Letter of July 2023, Gove queried the “sustainability credentials of the new building”, claiming the project proposal had not demonstrated that the carbon reductions would fully offset the embodied carbon arising from this proposal.

This sparked outrage across both the UK’s business and demolition sectors, with the National Federation of Demolition Contractors (NFDC) saying the decision revealed “a total misunderstanding and implicit bias against demolition”, and M&S branding it as “a short-sighted act of self-sabotage by the Secretary of State”.

Following a lengthy legal battle, in which M&S challenged the Secretary of State’s decision on six grounds, that decision has now been overturned.

Mrs Justice Lieven of the High Court found in favour of Marks & Spencer, upholding five of their six complaints.

In the judgement statement issued by the High Court, Justice Lieven said: “It is clear beyond any rational doubt, and accepted by all parties before me, that the offsetting requirements in SI 2C are in relation to operational carbon, and not embodied carbon.

“This is because the reference to the Building Regulations necessarily includes a calculation based on the energy efficiency of the building in its operational phase, not the construction carbon impacts.

“However, in the DL [decision letter] the SoS [Secretary of State] appears to have become thoroughly confused on this point and has assumed that the requirement for carbon offsetting applied to embodied carbon and not just operational carbon.”

Commenting on the decision, Sacha Berendji, Operations Director at Marks & Spencer, said: “Today’s judgment couldn’t be clearer, the Court has agreed with our arguments on five out of the six counts we brought forward and ruled that the Secretary of State’s decision to block the redevelopment of our Marble Arch store was unlawful.

“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.”

The NFDC also commented, saying: “The NFDC is glad to see today’s High Court ruling, though it is unfortunate that the operations of a prime site in one of the UK’s flagship retail districts has been disrupted, delaying its much-welcomed carbon footprint improvements.

“We applaud the team at M&S and everyone involved in the project for championing a sensible mindset to sustainable redevelopment, which considers the entire life cycle of the site, rather than applying a “one-size-fits-all” approach.”

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