Save Smallbrook, R (on the application of) v Birmingham City Council
[2024] EWHC 2535 (Admin)
Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities & Ors
1 March 2024
[2024] EWHC 452 (Admin)
High Court
Marks & Spencer wanted to build a new store. The government said no, citing environmental and heritage concerns, even though an expert had recommended approval. A judge ruled that the government didn't properly explain its decision and misinterpreted rules about building sustainably. The government's decision was overturned on several key points.
Key Facts
- •Marks & Spencer (M&S) challenged the Secretary of State's (SoS) refusal of planning permission for a nine-storey development on Oxford Street.
- •Westminster City Council initially approved the application, but the SoS called it in for a public inquiry.
- •The inquiry inspector recommended granting permission, emphasizing the public benefits despite environmental concerns.
- •The SoS refused permission, citing concerns about heritage impact and embodied carbon, disagreeing with the inspector on several key points.
- •M&S argued the SoS misinterpreted national planning policy regarding the presumption of repurposing buildings and the consideration of alternatives.
- •The SoS's decision letter contained several alleged errors of fact and misapplications of policy.
Legal Principles
Duty to give reasons when disagreeing with an inspector's recommendation.
R (Cumbria CC) v Secretary of State for Transport [1983] RTR 129, Horada v Secretary of State for Communities and Local Government [2016] PTSR 1271, SSCLG v Allen [2016] EWCA Civ 767
Court's power to intervene in cases of misinterpretation of policy, not just misapplication.
Tesco Stores Limited v Dundee City Council [2012] UKSC 13, St Modwen Development Limited v Secretary of State for Communities and Local Government and Others [2017] EWCA Civ 1643
The meaning and effect of planning policies should be clear, even without explicit use of terms like 'presumption'.
R (Asda Stores) v Leeds City Council [2021] EWCA Civ 32
The weight given to various planning considerations is a matter of planning judgment for the decision-maker.
R (Asda Stores) v Leeds City Council [2021] EWCA Civ 32
Outcomes
Grounds One, Two, Three, and Four succeeded.
The SoS misinterpreted the NPPF regarding the presumption of repurposing buildings, failed to adequately explain his disagreement with the inspector's conclusions on alternatives and the impact of refusal, and inconsistently weighed the benefits and harms.
Ground Five partially succeeded.
The SoS made an error of fact regarding the lack of dispute about embodied carbon and misapplied policy regarding carbon offsetting.
Ground Six was dismissed.
The SoS provided adequate reasoning on the heritage impact, although more detail could have been included.
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