UDRO's take: the real consequences of the M&S saga for Britain

Oxford Street's M&S flagship store has been subject to years of controversy, following proposals for its demolition

Following years of legal battles, a High Court judgement and a change of government, Marks & Spencer (M&S) has finally been given the green light to demolish its art deco/‘Néo-Grec’ flagship store on Oxford Street, London. The Urban Development Reform Organisation (UDRO) argues this decision reflects deep flaws and dangers in the national planning system, as well as a short-sighted and disconcerting approach to heritage by the current UK government.

A timeline of the dispute

M&S applied for permission from Westminster City Council in 2021 to demolish Orchard House, a building the household name retailer had owned since 1930. Orchard house was built between 1929-1930 by the distinguished architectural practice of Trehearne and Norman – a firm behind many of the beloved buildings on London’s Regent Street.

M&S’s 2021 application, submitted during the COVID-19 lockdown, was initially approved by Westminster City Council. However, this was met with considerable objection by SAVE Britain’s Heritage who commissioned a report by Simon Sturgis to investigate the carbon emissions of the proposed scheme. Unsurprisingly, it concluded that the carbon dioxide emitted from the proposed demolition would contravene climate policy on the local as well as the national level. Nevertheless, the Mayor of London gave his permission for the plans to go ahead in April 2022.

Two months later, an intervention came from the Secretary of State for Levelling Up, Housing & Communities, Michael Gove, stipulating that approval of the scheme was his prerogative, in accordance with Section 77 of the Town and Country Planning Act 1990. A report was commissioned, which was undertaken by David Nicholson RIBA IHC between October and November 2022. Mr Gove disagreed with the Inspector’s recommendation of approving the application, and on 20th July 2023 officially refused to grant planning permission.

M&S contested Gove’s decision in the High Court, and the High Court ruled in M&S’s favour on 1st March 2024, concluding that Mr Gove had misapplied the National Planning Policy Framework (NPPF) in relation to the repurposing of buildings and policy in relation to the offsetting of the embodied carbon in the demolition and re-construction of the building, failed to adequately explain his reasoning that that proper consideration had not been given to alternatives and that the wider West End would not be impacted if demolition were not to proceed, and was inconsistent in acknowledging the public benefits of the proposal but not the harm to the area (caused by a vacant site) if the proposal were to be refused. 

As a result, the Secretary of State was required to evaluate M&S’s proposal once more. In the meantime, the UK underwent a change of government in the wake of Labour’s victory in July 2024. Therefore, the decision of whether to grant permission befell to the equivalent Secretary of State in the new government, renamed as Secretary of State for Housing, Communities and Local Government, Angela Rayner. Ms Rayner agreed with the Inspector’s original recommendation that permission should be granted, and on 5th December 2024, after four years of (literal) trials and tribulations, it was announced that Marks and Spencer’s iconic store will indeed be demolished.

In her decision letter, Ms Rayner makes particular note of the observation the Inspector made in his report in 2022 that the Secretary of State is entitled to use their judgement in how much weight to give to climate considerations, given climate change policy is still developing. However, this should not mean that the Secretary of State is immune from criticism in how they apply the law, as Mr Gove discovered in the High Court.

A minor inconsistency with major repercussions

When addressing the environmental setbacks of the proposal, Ms Rayner immediately acknowledges the embodied energy (the energy that a building emits in its lifetime) from the proposed demolition of not just one, but three buildings, and the construction of an even larger building in its place. However, she quickly proceeds to note M&S’s argument that any refurbishment of the building, instead of a demolition, would lead to more carbon over the life of the building due to a refurbishment’s reliance on an inefficient building envelope. She even agrees with a report commissioned by M&S to analyse SAVE’s alternative refurbishment scheme, that the uncertainty of the embodied carbon impact of SAVE’s scheme would apply to any other refurbishment scheme. 

Regardless of the veracity of the claim, Ms Rayner’s subsequent conclusions that harm from embodied carbon is an outcome of either type of scheme, and that any differences in embodied carbon are purely theoretical, due to there being no alternative scheme proposed, seems incompatible. If one cannot quantify the difference in potential harm that each scheme could cause, surely one cannot group the two schemes together under the general banner of inevitable harm. This inconsistency, however slight, betrays a great deal behind Ms Rayner’s rationale. Indeed, the lack of balance in her judgement only becomes further evident.

cui bono?

The argument that the embodied energy emanating from the proposed redevelopment would be lower if it were delayed until the decarbonisation of the grid is upheld. As stated in her decision letter, this is due to all aspects of construction undertaken using renewable energy instead of fossil fuels. She sets this consideration against the planning policy context which favours the maximised office space and retail space that the proposed redevelopment would generate, and since the store is currently assessed as failing, the benefits to the public realm in the case of redevelopment would outweigh any loss of heritage and be a much better prospect than an empty store. In other words, she sets the harm of the proposal, i.e. the significant carbon emissions, against the public benefits of the proposal, and by extension, the harm of not enacting the proposal.

All parties agree that maintaining the status quo in relation to this building is unsustainable with decreasing trading and footfall. What UDRO argues, however, is that a façade retention would resolve all the structural issues in the building while retaining a heritage symbol in the Art Deco style. This was ruled out by the Inspector, primarily on the grounds that the embodied carbon savings would be immaterial, and Rayner seems to endorse this perspective when summarising that harm in terms of embodied carbon would flow from either a refurbishment or redevelopment, although she does not address the idea of a façade retention specifically.

Nevertheless, a façade retention would unlikely lead to more embodied carbon than demolition. The only actual “harm” that would arise from specifically a façade retention would be, as the Inspector also pointed out in his report, the lower operational energy performance, presumably caused by the retained, inefficient building envelope that M&S warned about in their submissions.

Similarly, when one examines further the actual benefits of a redevelopment, the overall picture becomes less definitive. M&S claimed during the 2022 inquiry that the planned provision of office space above the retail floors would attract the headquarters of a global company. They argued that the prime location would appeal, particularly as it stands just outside the Portman Estate Conservation Area. This assessment is certainly glowing, perhaps idealistic. In this post-pandemic era, the demand for employees to work from home persists, far longer than anyone could have predicted in 2022 when the inquiry was originally held and the UK was arguably still transitioning from lockdown to normality, albeit in its latter stages. Would this same global company still be interested in investing after the length of time that has since elapsed due to the delays from the dispute? The delivery and occupation of office spaces above and the creation of new retail floorspace on the ground floors below are intertwined, a view which the Inspector adopted in his assessment of the likelihood of refurbishment being undertaken by another developer. This certainly calls into question the public benefits that Ms Rayner outlined in her judgement. Ms Rayner cites evidence produced by M&S that the need for first-class office spaces in the West End has increased in this intervening period. Nevertheless, it remains to be seen whether the offices will be occupied, and, if so, to what extent and for how long upon their completion.

It is the theoretical benefits of the proposal which should be weighed against the actual harm the proposal will enact. Even if one accepts that the difference in embodied carbon under this proposal, as opposed to a refurbishment, is negligible, the loss of an architectural gem from a bygone era is undeniable. Although the building was rejected for listing, it still contributes value as a non-designated heritage asset. Its removal would deprive future generations of the chance to enjoy and wonder at its beauty. A façade retention would preserve this asset, and the only cost that this would incur would be an inefficient energy infrastructure which would have been counteracted by a carbon offset fund that would be required anyway in the case of redevelopment, as per policy SI 2 of the London Plan, although the latter would presumably be at a lower cost to M&S. Ms Rayner’s short-sighted, over-simplified approach which justifies the excessive carbon in the proposal fails to properly scrutinise the benefits promised by the scheme and overlooks both the hidden and obvious benefits of a refurbishment-type scheme. The only certain winners of this proposal are M&S who would save money in running of the store in the long-term to the detriment of the public in more ways than one. This unconscious bias towards M&S is not limited exclusively to this part of the judgement.

Mental gymnastics and tenuous justifications

The Secretary of State notes in her judgement the new Policy 43 of the Westminster City Plan that came into effect on 1st July 2024, in the intervening period between Mr Gove’s formal decision and Ms Rayner’s formal decision. One of the stipulations in this emerging policy is that Whole Life Carbon Assessments (WLCAs), submitted when the proposed scheme involves demolition, must follow the updated RICS guidance. Ms Rayner, however, relieves M&S of this requirement on three grounds. The first basis is that the guidance on WLCAs set out in the development plan i.e. the London Plan does not require an updated WLCA in this instance, and the second is that the transition from the former to the current RICS system is not addressed in the new standards.

However, she then proceeds to deem the proposal to comply with the new RICS standards in any case as, in her view, the proposal delineates why and how it has differed, thereby acquitting the proposal of this new condition on three grounds, of which the last two are mutually exclusive. This is arguably in a similar vein to her earlier conclusions on the embodied carbon resulting from a refurbishment as opposed to a redevelopment. 

Nevertheless, when one also considers SAVE’s alternative conclusion that the proposal would also fail to meet any of the exceptions granted in the new policy overall, the proposal can be viewed as directly impeding the UK’s transition to Net Zero and violating the new ethos adopted by Westminster City Council to that very same end.

What is even more problematic in this regard is Ms Rayner’s flippant attitude, dismissing the changing practices and attitudes towards demolition on grounds that cannot be judged in any way other than as mere technicalities. The Secretary of State’s affording of the doubt in this case reaches its nadir at the end of her conclusions on embodied carbon in a manner that borders on oxymoronic.

The WLCAs set out in the previous RICS standard contain a certain Condition 21. What this entailed was an updated WLCA assessment prior to the commencement of demolition and continual updated assessments, setting the foundation for further whole life cycle carbon reduction. M&S in April 2024 proposed an amendment to their application, specifically an amendment to Condition 21, that would require M&S to provide a fixed embodied carbon outturn (the actual carbon emitted in contrast to the projected emission). M&S claims that this outturn will enable a 10% reduction in carbon emissions over the life of the building.

Nonetheless, SAVE has critiqued this 10% figure, and it certainly remains to be seen as to how exactly this will be achieved. Despite this uncertainty, Ms Rayner permits this assumption in her judgement and even cites this promised carbon outturn at the end of her overall conclusions on embodied carbon. Therefore, notwithstanding the environmental setbacks that this proposal will enact, which were acknowledged by the Secretary of State herself in the preceding paragraph, the Secretary of State applies an untested promise as a mitigating factor in her overall decision. Yet, as discussed in the previous section, various technicalities are utilised to absolve the proposal’s arguable breach of new environmental regulations. Ms Rayner is picking and choosing differing mitigating factors, either specific details or sweeping promises, that she applies in different parts of her judgement which, in most cases, unintentionally favour M&S.

The start of a trend

UDRO argues that the repercussions of this decision extend much further than Orchard House, although its loss must not be underestimated. Ms Rayner is confident in her assertion that the demolition of this structure will not set a precedent, and that each future decision will revolve around the specific facts of each case which, by its very nature, cannot be replicated.  This is a very naïve presumption, at best. The pedantic attitude adopted towards planning rules and regulations that simultaneously manages to be over-simplified in its approach will allow the destruction of a beautiful heritage relic, at the very heart of London, in an environmentally irresponsible manner. What is to prevent these very same rules and regulations from being ridden over roughshod (again?) for buildings that are perhaps less significant but just as important?

Furthermore, what is to prevent the government from undertaking a similar decision in the future? We are still in the early stages of this Labour Government with the next election only at the very end of this decade. A couple of months before the last election, a top Marks & Spencer director said that early indications from the Labour Party led him to conclude that Labour would be more inclined to support the redevelopment of their flagship store, were they to prevail in the upcoming election. How could a top Marks &Spencer official be so confident of Labour’s favourability towards their scheme when the appropriate Secretary of State had not yet been appointed, let alone been given the chance to examine the proposal, in an administration that had not yet existed?

How could a top Marks &Spencer official be so confident of Labour’s favourability towards their scheme when the appropriate Secretary of State had not yet been appointed, let alone been given the chance to examine the proposal, in an administration that had not yet existed?

The answer is borne out in this judgement. In this instance, there is an irony in the Labour Party appearing naturally predisposed towards multi-million corporations. Their instincts to protect the climate, which they expect the general public to abide by in their day-to-day lives, have been suppressed to accommodate big business.

UDRO notes the considerably hypocrisy this implies, and will continue to fight to protect the UK's social and architectural heritage.