High Court Decision Highlights Errors in Planning Policy Application and Reasoning in Marks and Spencer PLC v Secretary of State Case

Citation: [2024] EWHC 452 (Admin)
Judgment on

Introduction

Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities & Ors is a High Court decision that primarily engages with the tangents of planning law, specifically in regards to planning permission in the context of both heritage conservation and sustainability. This case provides key insights into the application of national planning policy regarding heritage assets and the transition to a zero-carbon economy, the balancing of public benefits against such policies, and the extent of required reasoning when deviating from an inspector’s recommendations.

Key Facts

Marks and Spencer PLC sought planning permission for a new mixed-use development on Oxford Street, London. The local planning authority, Westminster City Council, initially favored the project, but the Secretary of State called in the application, ultimately refusing it. The decision was challenged on several grounds including alleged errors regarding the “strong presumption” in favor of repurposing existing buildings, considerations of alternatives to demolition, and application of policy regarding carbon emissions and heritage assets, alongside a failure to properly assess the impact of the development’s refusal on the area’s economic vitality.

The court’s analysis centered on several key legal principles, notably:

  1. Misinterpretation of Policy: The court found that the Secretary of State erred in law by introducing a non-existent “strong presumption” in favor of repurposing existing buildings, misreading the National Planning Policy Framework (NPPF) and thus applying an incorrect policy test.

  2. Duty to Explain Departure from Inspector’s Recommendations: It was held that if the Secretary of State disagrees with an inspector’s conclusions, the Secretary of State is legally required to provide clear reasons for this divergence, as per the rulings in Horada and Allen.

  3. Assessment of Heritage Impact: In planning decisions, any harm to the significance of listed buildings or conservation areas requires careful assessment. While the Secretary of State gave considerable weight to the claimed harm to the setting of Selfridges, the court did not find this assessment to reach an unlawful level.

  4. Consideration of Carbon Emissions: There was a noteworthy misinterpretation of policy in the context of carbon emissions, with the Secretary of State incorrectly considering carbon offset payments for construction phase emissions under a policy that pertains to operational emissions.

Outcomes

The court allowed the challenge on several critical grounds:

  • Ground One: The Secretary’s assertion of a “strong presumption” in favor of repurposing buildings without corresponding evidence in the NPPF was found to be erroneous.

  • Ground Two: A failure to address the Inspector’s finding concerning the absence of a viable alternative scheme.

  • Ground Three: Inconsistently attributing limited weight to the potential harm of refusing the scheme while recognizing the significant weight of the scheme’s public benefits.

  • Ground Four: Failing to adequately reason the conclusions about the impact of the development’s refusal on the area’s economic vitality, as required by Development Plan policies.

The court dismissed:

  • Ground Six: The Secretary of State was deemed to have provided sufficient reasoning on the heritage asset issue and did not act unlawfully regarding the setting impact on Selfridges.

Conclusion

The High Court’s decision underscores the necessity for decision-makers to adhere closely to the wording and intent of existing planning policies, especially when deviating from recommendations of an experienced inspector. Additionally, it reaffirms the importance of thoroughly reasoned decisions in respect of alternates to proposed developments, particularly those with significant heritage and environmental implications. The case demonstrates the judicial system’s crucial role in ensuring planning decisions are lawfully made, reflecting a complex interplay between the protection of heritage assets and pursuing sustainable development goals.