Press release: Crunch court hearing for M&S Oxford Street case

Michael Gove’s landmark ruling is challenged by M&S on procedural grounds

12th February, 2024

M&S Oxford Street will be back in the spotlight tomorrow when the landmark environmental and heritage case goes to the High Court. 

The two-day hearing will see the Secretary of State go up against Marks & Spencer after the retailer applied to challenge his decision on the high-profile case, in a further roll of the dice. 

Michael Gove ruled in July 2023 that M&S should not demolish its famous Marble Arch building to make way for a monolithic 10-storey office and retail block. His decision sent shockwaves through the development sector and is widely seen as having helped shift the dial on Britain’s knock-it-down-and-rebuild attitude. Developers are increasingly looking at upgrading and adapting buildings rather than reaching for the wrecking ball as the default option. And local planning authorities are starting to announce policies prioritising adaptation over demolition. These changes were partly triggered by the M&S case which drew wide attention to the fast-changing and highly technical science behind a building’s “whole-life carbon cost”. 

By M&S’s own calculations, the new building would have needlessly released 40,000 tonnes of CO2 into the atmosphere, the equivalent of driving a typical car 99,000,000 miles – that’s further than the distance to the sun. It would also have permanently harmed the historic setting of the “nation’s high street” and grade II*-listed neighbour Selfridges. 

SAVE Britain’s Heritage, backed by architects, engineers, environmentalists and architectural historians, argued at the inquiry that M&S’s proposal was both damaging and unnecessary because most of the retailer’s aims could be achieved through a comprehensive “retrofit” – bringing the building up to modern standards and adapting it for contemporary uses. 

Henrietta Billings, director of SAVE Britain’s Heritage, said: “We believe the Secretary of State made the right decision. SAVE will be in court to support him and to maintain our position.

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

SAVE has been campaigning for the re-use of buildings for almost 50 years. This case challenges the traditional silos of “heritage” and “sustainability” and has moved the debate forward by recognising that re-using buildings and treading carefully on the planet is a win-win scenario.

The two-week inquiry, in autumn 2022, pitted SAVE’s crowdfunded team against the might of M&S. Statements backing our case were submitted by more than 30 people, including actor and campaigner Kristin Scott Thomas, broadcaster Griff Rhys Jones and London Eye designer Julia Barfield. Other supporters included author Bill Bryson. More than 400 generous members of the public helped us raise more than £20,000 towards legal costs. 

In July the Secretary of State, Michael Gove, ruled in SAVE’s favour, rejecting the recommendation of his planning inspector. The landmark judgement was widely hailed as the right decision both for Oxford Street and the planet.

Griff Rhys Jones, who spoke at the public inquiry in support of SAVE’s case, called the decision “very sensible and sound” and “an ecological victory”. Michelle Ludik, an architect and specialist in adaptive reuse at global firm HOK, 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, founder of the Stirling Prize-winning architects Haworth Tompkins 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.”

Successful retrofit projects are being completed all the time, from a 1930s Edinburgh department store converted into a whisky visitor centre, to an 18th-century Shropshire flax mill reborn as sustainable workspace, and a tired 1980s office block in Chelsea that has been given new life with a pioneering “net zero” retrofit. Smithfield Market in Clerkenwell, abandoned for 30 years, is being repurposed as the new Museum of London. In the Welsh Streets in Liverpool almost 100 terraced houses were saved from demolition and adapted and updated as family homes. And just half a mile from Marble Arch, Ikea is upgrading and converting the grade II-listed Top Shop building at Oxford Circus into its new flagship city centre store. 

ENDS

Notes to editors

1 For more information contact Elizabeth Hopkirk at elizabeth.hopkirk@savebritainsheritage.org / 020 7253 3500

2 M&S’s request to challenge the Secretary of State’s decision in the High Court on six technical grounds was granted in November, meaning the court acknowledged the claim was “arguable”. The Secretary of State confirmed he would defend his decision and SAVE continues to stand by its position. Westminster Council and SAVE are listed as second and third defendants. We have submitted our defence and will be represented in court by our barrister Matthew Fraser of Landmark Chambers and solicitor Claire Saffer of Gunner Cooke. The SoS will be represented by Paul Shadarevian KC and Clare Parry of Cornerstone.

SAVE’s defence argues among other things: “The six grounds of claim do not read the decision of the Secretary of State and the report of the Inspector fairly and as a whole, in the ‘reasonably flexible way’ that is required …. The claim does not heed the repeated caution of the courts against the dangers of excessive legalism infecting the planning system, hypercritical scrutiny of planning decisions, and laborious dissection of reports and decision letters in an effort to find fault… In short, the Secretary of State was entitled in an exercise of planning judgment to disagree with the conclusions and recommendation of the Inspector, and he gave legally adequate reasons for doing so.” (From our defence, p500 of court bundle) 

3 The case will be heard at the High Court on the Strand, London, starting c.10.30am on Feb 13. The public are welcome to attend. Courtroom will be announced the afternoon before.

4 Developers are increasingly prioritising retrofit over demolition – partly driven by tenant demand for characterful buildings that align with their net zero commitments. And a number of local planning authorities are introducing policies requiring applicants to show they have given serious consideration to retrofit. Most prominent among these is the City of London Corporation which approved a record number of retrofit planning applications last year. In 2022 Westminster City Council set up a Retrofit Taskforce to drive retrofit planning policy and strategic initiatives across the borough.

5 More background on our website and in our report

6 SAVE Britain’s Heritage is an independent voice in conservation that fights for threatened historic buildings and sustainable reuses. We stand apart from other organisations by bringing together architects, engineers, planners and investors to offer viable alternative proposals. Where necessary, and with expert advice, we take legal action to prevent major and needless losses. Our success stories range from Smithfield Market in London and Wentworth Woodhouse stately home in Yorkshire, to a Lancashire bowls club and the Liverpool terraces where Ringo Starr grew up.