Marks and Spencer submitted a planning application for demolition of its Marble Arch flagship store, Orchard House and two adjoining buildings, and construction of a modern replacement back in July 2021.  It was controversial from the outset. 

Orchard House is an unlisted Art Deco building in a prominent corner position on Oxford Street and has been occupied by Marks & Spencer since the 30s.  Opposition to the scheme focussed on the heritage losses and impacts and environmental factors.  An application to list Orchard House was rejected by Historic England.  Marks & Spencer argued that the three buildings could not be suitably retro-fitted and pointed to the planned reuse of materials and more energy efficient replacement building.

The City of Westminster, the local planning authority, resolved to grant planning permission for the scheme in November 2021.  However, the Secretary of State for Levelling Up, Housing and Communities, Michael Gove, (SoS) “called-in” the application, meaning it was taken from the local planning authority’s’ hands and would be considered by a planning Inspector with the ultimate decision taken by the SoS.

The planning inquiry took place in late 2022.  The Inspector concluded that the Marks & Spencer proposals would be consistent with the heritage balance set out in the National Planning Policy Framework.  He found that the benefits would outweigh the less than substantial harm to the significance of any designated heritage asset and the loss of Orchard House as a non-designated heritage asset.  The Inspector found that the proposals would impede the UK’s transition to zero-carbon and that this should in theory weigh heavily against the scheme.  However, he also found that refurbishment of the building was not a viable option and that not granting planning permission would make partial vacancy of the buildings more likely, contrary to the development plan.  The Inspector recommended that the application be approved, subject to suggested conditions and legal agreement.

The SoS disagreed with the Inspector and determined to refuse the application in July 2023.  He found the scheme to be contrary to development plan policies on design and partially in conflict with policies on heritage. He considered that harm to designated heritage assets carried very great weight, which was not outweighed by the public benefits.  Marks & Spencer challenged the decision.

The challenge was heard by the Planning Court in February this year and the decision was handed down on 1 March.  The SoS’s decision was quashed on five of the six grounds raised by the Marks & Spencer.  The judgment catalogued various errors in the SoS’s reasoning.  He was found to have misinterpreted the NPPF and erred in law; failed to give adequate explanation for his disagreement with the Inspector on alternative schemes for the site; or for concluding that harm, should be scheme not proceed, be limited; and to have been “thoroughly confused” regarding the carbon issue.

So where are we now? With a flagship store that is not fit for purpose and an undecided planning application.  The decision was quashed, the SoS needs to take the decision again in light of the judgment. The saga goes on.  You can see why people criticise the pace of decision making in the planning system!