Oxford Circus crossing London

M&S on winning its High Court challenge in embodied carbon case

On 1 March 2024, M&S won an important legal victory in their bid to redevelop their flagship Marble Arch Store, an Art Deco building on London’s Oxford Street.

The High Court has quashed the Secretary of State’s (“SoS”) controversial refusal of the M&S redevelopment.

Mrs Justice Lieven asserted that the SoS Michael Gove misinterpreted the National Planning Policy Framework (NPPF), effectively rewriting the policy to include a “strong presumption in favour of repurposing buildings” where no such presumption exists.


In 2021 M&S applied to demolish and upgrade its flagship store. M&S’s proposals were supported by the local council, the Mayor and an Independent Inspector.

In June 2022, the application received a number of objections, notably from Save Britain’s Heritage. As a result, the SoS called in the application for his own determination under section 77 of the Town and Country Planning Act 1990. In July 2023, the SoS refused to grant permission for the redevelopment, arguing it would “fail to support the transition to a low carbon future and would overall fail to encourage the reuse of existing resources including the conversion of existing buildings”.

The decision underlined the need for the property sector to consider carbon emissions and publicised the concept of embodied carbon (meaning the Co2 emitted from the production of construction materials) and its impact on planning decisions.

In late August 2023, M&S announced it would be challenging the validity of the SoS’s decision by statutory review.

M&S brought forward 6 grounds of challenge to the SoS’s refusal and successfully appealed to Judge Lieven to quash the decision on 5 of those grounds, set out below.

  1. Lieven asserted the SoS misinterpreted paragraph 152 of the NPPF when he said there is a “strong presumption in favour of repurposing buildings”. The judge claimed that the SoS had effectively rewritten the policy. She added that, while paragraph 152 contains some encouragement for the reuse of buildings, it does not contain anything that comes close to a presumption. In her conclusion, Judge Leiven commented the importance of noting “that where the NPPF wishes to create a presumption, or suggest or direct refusal if certain conditions are not met, this is made clear on the face of the NPPF”.
  2. The SoS failed to provide sufficient reasons for disagreeing with the Inspector on whether there were viable and deliverable alternatives to the scheme. The Inspector concluded in her inspection report that the structural issues and layout of the site would deter any meaningful refurbishment. The Court felt that in his decision letter the SoS did not “grapple with this issue” and held that that he could not simply assert his disagreement with the Inspector but needed to provide sufficient reasons for doing so. The Court concluded that in the absence of this information, it is impossible for the Court to determine the rationality or lawfulness of the SoS’s decision.
  3. The Court held that the SoS failed to grapple with implications of refusal and loss of public benefit by refusing the application against the heritage impacts. The Inspection Report raised the possibility that without significant intervention to the property the store may be used by multiple trades including “American candy and luggage type stores.” The Inspector highlighted the potential conflict this would create with the aspirations of the Development Plan and the “wider vision for the retail heart of London”. The Court concluded that a reader of the report would be “left in a position of understanding that the loss of the benefits would be highly material”. In her judgment, Lieven found it difficult to understand the SoS’s reasoning for giving this consideration so little weight in the decision process and therefore found in favour of M&S on this ground.
  4. The SoS simply stated that, in refusing the application, the harm to the vitality and commercial viability of Oxford Street, “would be limited”. He did not explain why he reached this conclusion. The Court regarded this issue as one of the most important considerations in the application. The Court stated that “it is obvious to any informed reader of the Inspection Report that significant harm to the vitality and viability at the western end of Oxford Street will have implications across the centre because of the loss of investment across the designated town centre”. Further, the SoS did not provide any reasoning to contradict the Inspector’s findings of significant harm, which the Court felt was necessary to justify his assertions.
  5. Finally, Lieven found that the SoS misapplied the London Plan, referring to their interpretation as “transparently wrong”. She claimed that the net zero-carbon reference within the policy is concerned with operational carbon impacts, and not construction carbon impacts. Lieven arrived at this conclusion as the words “net zero” were defined in the policy documents, limiting the scope of interpretation. Her comments were that “any other interpretation of the policy would be both nonsensical, and contrary to the obvious words.” The SoS incorrectly understood that the requirement for carbon offsetting applied to embodied carbon and not just operational carbon. The judge inferred that had the SoS correctly understood the policy he might have come to a different conclusion.

In summary, the High Court decision may prompt relief among developers looking to redevelop rather than retrofit. Nonetheless, the judgment highlights the need for clearer guidance and national policy on reusing, rather than demolishing, buildings.

To discuss any of the issues raised in this article, or similar Specialist Real Estate issues, please contact someone from our Real Estate team.

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