M&S clears first hurdle in legal challenge to Gove’s Oxford St refusal

The levelling up, housing and communities secretary refused the controversial plans in July, rejecting Pilbrow & Partners’ 10-storey replacement scheme over heritage and design concerns, as well as its embodied carbon impact.

But the High Court has now given M&S permission to proceed with a judicial review against the government over the decision, The Telegraph reports. 

According to the newspaper, the substantive judicial review hearing is expected to take place next year.

For a successful challenge, M&S will have to prove to the courts not that the government’s decision was wrong, but rather that it made an error in its decision-making.

This could include convincing them that Gove missed material that was relevant – or else considered material that was irrelevant to the case.

M&S chief executive Stuart Machin confirmed the store’s intention to proceed with the claim.

He said: ‘We are pleased that the court has recognised the merits of our legal challenge on every single one of the six counts that we raised, and has approved our case to proceed to the next stage.’

Machin, who previously described Gove’s decision as ‘unfathomable’, said it was ‘bewildering’ that M&S was ‘again having to go through this after two years of support and approvals’.

He added: ‘We have been clear from the very start that the refurbishment of the existing store was not possible, so this is only the first step in the lengthy process of overturning the government’s senseless decision to reject our Marble Arch proposal – the only retail-led regeneration on Oxford Street.’

Gove overruled the planning inspector by rejecting the contentious redevelopment proposals on 20 July. 

Setting out his decision for refusal in a letter, Gove said the 10-storey replacement scheme conflicted with policies on heritage and design.

He also specifically highlighted the embodied carbon impact and waste involved in the plan, something raised extensively by the AJ’s RetroFirst campaign and by SAVE Britain’s Heritage at last year’s public inquiry into the proposal.

Although the plans had been approved by both Westminster City Council and London mayor Sadiq Khan, the application was called in by Gove last summer.

In his decision letter, Gove said he disagreed with M&S’s argument that there was no viable and deliverable alternative to demolition, arguing that the project was not compatible with the transition to a low-carbon future and the need to reuse existing buildings and materials. The new build would have released around 40,000 tonnes of CO2 into the atmosphere in terms of the immediate impact.

The letter said: ‘The secretary of state is not persuaded that it is safe to draw the same conclusion reached by the inspector, namely that “there is no viable and deliverable alternative” … which leads to the inspector’s overall conclusion that “there is unlikely to be a meaningful refurbishment of the buildings”.’

It went on: ‘He does 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.’

In response to the Gove’s decision, M&S chief executive Stuart Machin described the rejection as ‘unfathomable’, especially when other demolition-led developments around the site had been waved through. He added: ‘The suggestion the decision is on the grounds of sustainability is nonsensical.’

Pilbrow & Partners founder Fred Pilbrow also expressed shock at the decision, branding it ‘bizarre’. He told the AJ: ‘How can a planning system that charges no less than three separate authorities – Westminster City Council, the Mayor of London and now the planning inspector – to determine one application, simply overrule their unanimous conclusions?’

M&S previously vowed to abandon the flagship superstore if its Pilbrow & Partners-designed redevelopment plans were rejected.

The retailer’s ‘threat’ was made at the start of last autumn’s planning inquiry into the controversial scheme to replace three existing buildings with a 10-storey office and shopping development.

In an opening statement at the inquiry, read by lawyer Russell Harris KC on behalf of M&S, the company warned it would leave the site near Marble Arch if the planning application were rejected – and argued that this would have dire consequences for the local area.