Is the M&S Oxford St demolition refusal a climate crisis turning point?

The suggestion the decision is on the grounds of sustainability is nonsensical. With retrofit not an option – despite us reviewing 16 different options – our proposed building would have ranked in the top 1 per cent of the entire city’s most sustainable buildings. It would have used less than a quarter of the energy of the existing structure, reduced water consumption by over half and delivered a carbon payback within 11 years of construction. 

‘Building owners will think twice before needlessly knocking down reusable buildings’

Last month, communities secretary Michael Gove made what many are calling a ‘watershed decision’ by blocking Pilbrow & Partners’ controversial plans to demolish and replace Marks & Spencer’s flagship Oxford Street store.

‘Our proposed building would have ranked in the top 1 per cent of the entire city’s most sustainable buildings’

‘There is almost nothing in the National Planning Policy Framework (NPPF) about how to factor carbon reporting into the planning system. And while local plan policies dealing with the issue are starting to emerge – particularly in London – they are very much in the early stages of development.’ 

Source:Pilbrow & Partners, Justin Piperger Photography and Wadsworth3D

It also prompted Financial Times business columnist Helen Thomas to brand Gove’s ruling ‘anti-business’ and both ‘arbitrary and confusing’ in the ‘absence of proper policy’.

So what did Gove say in his letter of refusal? And how open to challenge are these arguments? Moreover, what does this high-profile decision mean for development in Britain, both in terms of mood music and actual planning precedent? 

We cannot let Oxford Street be the victim of politics and a wilful disregard of the facts. At a time when vacancy rates on what should be the nation’s premier shopping street are 13 per cent higher than the average UK high street, the secretary of state has inexplicably taken an anti-business approach, choking off growth and denying Oxford Street a modern, sustainable, flag-bearing M&S store. 

Baldwin makes a good point. Gove’s decision is less of a turning point and more the latest major signpost in a climate-based agenda for circular-economy solutions, which is moving faster than the development cycle and government policy. No wonder this is proving perilous for M&S and others who go down the route of demolition.

For and against – how have the two sides reacted to Gove’s M&S decision?

But even if a challenge is launched – and at the time of going to print, M&S had not confirmed either way – winning is quite another matter. The retailer would have to show some legal flaw in Gove’s decision. And, putting the embodied carbon arguments to one side, refuting his reasoning on heritage will likely be difficult because of the element of subjectivity.

Observers believe M&S is likely to go down this road, given its furious reaction to the blocking of its flagship development plan.

‘This is a big moment in policy terms,’ says Dehon. ‘The secretary of state has given power to paragraph 152 – it’s a policy whose time has come.’ 

Talking to architects, especially in London, we are hearing that the majority of enquiries about large commercial schemes are now for retrofit as opposed to demolition and new-build in a way that was not happening 18 months ago.  

M&S now has until the end of August to seek a judicial review in the High Court. In theory, this could lead to a court case towards the end of the year and a final verdict next spring.

‘[I do] not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable’

It’s too early to say whether or not they will change their proposals but there’s no doubt that compared to where we were before the call-in, heritage and retrofit are now central in the mix, and decision-makers and building owners will think twice before needlessly knocking down reusable buildings.

Visualisation of Pilbrow & Partners’ M&S Oxford Street proposal looking east

However, Du Croz cautions that residential development may potentially be less affected than other sectors, given planning requirements that might compete with retention such as those concerning space standards, daylight, amenity and fire safety.

‘Many of us support retention and retrofit but if these principles are to have a significant bearing on development, they should be supported in planning policy – the NPPF, local plans and in this case, the London Plan.’

Stuart Machin, chief executive, Marks & Spencer


‘It’s just disappointing that Gove chose a piece of case law to make a political statement rather than embedding it in policy, if that’s what he wants the industry to prioritise going forward,’ she says.

As has the Barbican Quarter Action (BQA) campaign, which is trying to sway the City of London away from demolishing the 1970s Bastion House and the former Museum of London buildings, and towards retrofitting them instead.  

While Lem Bingley, editor of the AJ’s sister title Property Week, wrote that the lesson of Gove’s decision was ‘don’t diss retrofit’, others fear continuing uncertainty will have a chilling effect on development, particularly in the capital.

But there is one existing section of the NPPF that may yet prove to have long-term significance: Paragraph 152.

‘This could have been sorted out if the NPPF had been updated to cover this issue but instead we have a great deal of uncertainty in London.’

‘If nothing else, the M&S appeal decision highlights the urgent need for a clear national planning policy position on the issue as soon as possible,’ she says. 

Aside from its actual impact on the planning system, Gove’s decision will have undoubtedly influenced property developers and investors as they weigh up the risks and returns of various types of development. How many of them will have seen the headlines in national newspapers, including the Daily Mail, The Guardian, the FT and the Daily Telegraph?

Museum of London / Bastion House, City of London – Powell & Moya (1977) Risk: Total demolition

Henrietta Billings, director, SAVE Britain’s Heritage

Gove’s decision – which overruled the planning inspector following a two-week public inquiry late last year– infuriated M&S. Its chief executive Stuart Machin called the move ‘pathetic’ and ‘nonsensical’, given the scheme’s earlier planning approvals, and renewed his threats to leave the site. 

Gove’s reasoning extended to the embodied carbon impact and construction waste involved in the plan, something raised by the AJ’s RetroFirst campaign and by SAVE expert witness and net zero expert Simon Sturgis at the inquiry.

The ripple effect extends well beyond Oxford Street. Towns and cities up and down the country will feel the full effects of this chilling decision, with decaying buildings and brownfield sites now destined to remain empty as developers retreat. The secretary of state has signalled he is more interested in cheap-shot headlines than facts and if it weren’t so serious it would be laughable.

Paragraph 152 deals with how the planning system should ‘support the transition to a low carbon future’. Among other things, it says the system should ‘encourage the reuse of existing resources, including the conversion of existing buildings’. 

The project, which won planning permission from Westminster City Council in November 2021, would have replaced the 1929 Orchard House and two adjoining buildings opposite the world-famous Selfridges with a larger 10-storey office and retail building. 

BQA co-chair Averil Baldwin believes there are ‘strong parallels’ between the M&S proposals and those for the Barbican building – a further reason for the City ‘to do the right thing [and] live up to its own declared sustainability policies’ – and thinks it echoes a ‘national shift in favour of retaining and repurposing buildings’. 

On embodied carbon specifically, Gove said the construction of the new-build replacement would ‘impede the UK’s transition to a zero-carbon economy’, despite acknowledging that some of the impact would be mitigated by carbon offset payments secured under the project’s section 106 agreement.

‘That’s the big take away for the development community – there must be full consideration of alternatives to demolition and that’s also something to which local authorities need to be alive.’

When 42 of the 269 shops on what should be our nation’s premier shopping street sit vacant, disregarding the expert opinion and approval of the appointed planning inspector and playing to the gallery by kiboshing the only retail-led regeneration proposal is a short-sighted act of self-sabotage and its effects will be felt far beyond M&S and the West End. It is particularly galling given there are currently 17 approved and proceeding demolitions in Westminster and four on Oxford Street alone, making it unfathomable why M&S’s proposal to redevelop an aged and labyrinthian site that has been twice denied listed status has been singled out for refusal.  

In his letter, Gove said he agreed with the inspector that this meant there ‘should generally be a strong presumption in favour of repurposing and reusing buildings’.

The sense we are getting from planning consultants is that on big schemes involving demolition, in the West End in particular, developers were keen to consider the outcome of the M&S decision before finalising their plans. 

Estelle Dehon KC, a prominent public law barrister specialising in planning and environmental law, believes part of Gove’s verdict – his underlining of the importance of this paragraph – could have a huge impact.

Unsurprisingly, the decision has already been embraced by campaigners battling against demolition-led schemes. 

Asked about what advice she is now giving to developer clients, she adds: ‘You have to be able to demonstrate clearly from the beginning that you took alternatives to demolition very seriously. M&S was unable to show that, and SAVE brought that out well at the inquiry.

It’s an argument echoed by Katy Davis, head of planning in the London office of property consultancy Carter Jonas.

So if the decision does stand, what effect will it have on the development community? Will it really make a difference, given the continuing absence of clear policies on embodied carbon and the circular economy at a national level?

‘This could have been sorted out if the NPPF had been updated but instead we have a great deal of uncertainty’

After a two-year process where our proposals were supported at every stage, our investment in 2,000 jobs, building one of the most sustainable buildings in London, improving the public realm and creating a flagship store, is now effectively in the deep freeze. 

His letter stated: ‘[I] consider that the harm to designated heritage assets in this case carries very great weight [namely the setting of Selfridges, and the harm to the settings of the Stratford Place conservation area, the Mayfair conservation area and the Portman Estate conservation area] … Overall [I] consider that, notwithstanding the alterations, Orchard House has significant value in its own right and in its context.’

Setting out his reasons for refusal in a lengthy letter, Gove acknowledged there were several benefits to the M&S scheme, including employment and regeneration. However, he said the project, and the loss of the unlisted Orchard House, would cause significant harm to surrounding heritage assets at Marble Arch, such as the neighbouring Grade II*-listed Selfridges building and surrounding conservation area.

‘The M&S decision highlights the urgent need for a clear national planning policy position’

However, over the course of almost two years, the project became a cause célèbre for the retrofit-first movement after the AJ and SAVE Britain’s Heritage highlighted the proposal’s impact not just on heritage but on climate as well, including the new-build’s release of almost 40,000 tonnes of embodied carbon into the atmosphere.

‘A judicial review might well be coming,’ says author and columnist Peter Bill, a former editor of Estates Gazette. ‘I imagine they [M&S] will attack Gove personally for what they called a “whimsical” decision. If you look at what he has been saying on various decisions, he flips back and forth on sustainability.’

Source:Robert Evans

Visualisations of Pilbrow & Partners’ rejected proposal

‘This all adds additional power to the argument for retrofit-first but what a way to run a planning system,’ says New London Architecture co-founder Peter Murray. ‘Here you have a project which has met the requirements of the local authority [Westminster], the mayor of London and the planning inspector.

His letter said: ‘[I do] not consider that the applicant has demonstrated that refurbishment would not be deliverable or viable and nor has the applicant satisfied the secretary of state that options for retaining the buildings have been fully explored, or that there is compelling justification for demolition and rebuilding.’

Meanwhile, the industry continues to face a ‘policy vacuum’ on embodied carbon and carbon reporting, according to Nicola Gooch, a solicitor at environmental and viability law firm Irwin Mitchell. 

Five weeks on from the secretary of state’s decision is very early days but already we are seeing it cited by amenity societies in their responses to major schemes involving the demolition of unlisted buildings outside conservation areas, and reuse alternatives.

Source:Pilbrow and Partners

Gove himself suggested in his letter that he did not expect his decision to act as a precedent. He also disagreed that climate matters should necessarily ‘trump’ other factors, such as financial investment and viability. 

She adds: ‘Michael Gove’s statement that this case “is not going to set a precedent” is a hollow comment. Of course, architects, planners and developers will take this into account when deciding between rebuild or retrofit in the future.’

Those fighting DSDHA’s proposals to flatten and replace Selkirk House – a mothballed 17-storey former Travelodge hotel near the British Museum in London – have already drawn comparisons between their battle and the M&S situation.

Victoria Du Croz, head of planning and partner at the law firm Forsters, agrees that this is precedent-setting. ‘We are likely to see more and more local authorities including reuse of buildings policies in their local plans,’ she says. ‘Accordingly, the impact of the decision could, in theory, be nationwide and across all sectors.’