Marks and Spencer Oxford Street row: Court told Michael Gove ‘misunderstood and misapplied’ planning policy

Tuesday 13 February 2024 4:00 pm

The Secretary of State for levelling up “misunderstood and misapplied” planning policy when it rejected Marks and Spencer Oxford Street demolition scheme, a judge heard.

Today, the High Court heard a judicial review by Marks and Spencer over the Secretary of State for levelling up , Michael Gove MP, decision to refuse planning permission for the construction of its flagship building on Oxford Street.

The retail giant sought planning permission to demolish its flagship store at 456-472 Oxford Street in order to construct a new 10-storey mixed-use building comprising retail, café, restaurant, offices and a gym.

Back in 2021, Westminster City Council granted Marks and Spencer’s application followed by the Mayor of London confirming that he would not seek to dismiss the application .

Despite that, the following year the Secretary of State for Levelling Up was called in to review the application, which was spearheaded by a campaign by charity SAVE Britain’s Heritage. This charity is also named as the second defendant on today’s judicial review hearing.

There was a public inquiry held between October to November 2022 by senior architect and heritage qualified inspector David Nicholson. He sent his 109 pages report to the Gove on 1 February 2023, recommending approval of the scheme.

However, a few months later, Gove published his anticipated decision, ruling against Marks and Spencer’s planning application.

Michael Gove. Photo: PA

The retail giant took he decision to court, as they believe the “decision is fundamentally important to the spatial development of London as a whole and, in particular, to the future of Oxford Street and the West End as an internationally important retail and office location.”

Marks and Spencers barrister, Russell Harris KC of Landmark Chambers, questioned Gove’s “unusual conclusion” in his argument to the court today.

He had arguments against Gove’s decision across six grounds which he outlined to Mrs Justice Lieven today.

The judge joked to the courtroom when looking at a map of the site that she “rarely get beyond Selfridges.”

Harris KC started off his argument this morning outlining what he deemed as ground one as the “error of law” which argued that when Gove made his decision, he “misunderstood and misapplied planning policy” as contained in the National Planning Policy Framework.

Another one of his points was in reaching his decision, Gove disagreed and rejected almost all of Nicholson’s findings. However, his duty when doing that, is to explain “fully and clearly” why he disagreed with the expert. His grounds two to four covered this point.

In ground four, the senior barrister pointed out in court that the inspector found on the evidence that “refusing the application would probably lead to the closure of the store, the loss of Marks and Spencer from the Marble Arch end of Oxford Street and substantial harm to the vitality and viability of the area.”

He explained to the court that the inspector concluded that any heritage harm would be outweighed by the public benefits particularly to Oxford Street and the West End of London.

When questioned by the judge about why this is Marks and Spencer’s flagship shop, the barrister explained this is the chain’s first store. “Goes to show I haven’t been in it,” the judge joked.

The barrister went on to outline that the Secretary of State’s concluded that the extent of harm to the vitality and viability of Oxford Street as a result of a refusal would be limited.

Harris KC said this finding had no evidential basis and is inadequately reasoned as a matter of law.

Overall on grounds two to four, he argued that Gove failed to lawfully explain himself across grounds two to four, resulting in errors of law.

Westminster City Council made it known to the court this morning that they are remaining neutral in this dispute.

Tomorrow, the Secretary of State barrister Paul Shadarevian of Cornerstone Chambers and SAVE’s barrister Matthew Fraser of Landmark Chambers are expected to present their argument to the court. This hearing will run until Wednesday with Mrs Justice Lieven decision set to come at a later date.

A spokesperson for secretary of state for levelling up said it would not be appropriate for us to comment on this case while proceedings are ongoing.

Marks and Spencer was contacted for comment.

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