Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities

This challenge concerned Marks and Spencer’s flagship London store. In July 2023, the Secretary of State refused planning permission for its demolition and replacement with a new mixed office and retail store. The claimant brought a public law challenge. On March 1, 2024, the High Court upheld that challenge, thus quashing the refusal of planning permission. Matter is remitted to the Secretary of State for redetermination. The High Court upheld five of the six grounds of challenge, including: (1) Misinterpretation of NPPF paragraph 152 (2) Failure to explain departure from Inspector’s conclusions on alternatives (3) Heritage balancing errors (4) Lack of evidential basis on vitality/viability assessments (5) Misapplication of embodied carbon policy One ground of challenge concerned the Secretary of State’s finding that there was a "strong presumption in favour of repurposing buildings", which was “reflected” in the following paragraph of the National Planning Policy Framework: "152. The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure." The Secretary of State had misinterpreted this policy, and so erred in law. Whilst there was some encouragement for the reuse of buildings, there was nothing close to a presumption. (Judgment, paragraphs 54 to 57.) A further ground related to the Secretary of State’s approach to "embodied carbon". Again, the Secretary of State had misinterpreted planning policy, this time in the London Plan. That policy stated “Major development should be net zero” and included a carbon offsetting requirement. However that related to the operational phase. It did not relate to the embodied carbon in the construction phase. The Secretary of State had misinterpreted the policy on this point, and in the process appears to have become “thoroughly confused”. The court stressed the importance in making clear that this case was not about whether or not it would be appropriate or justified to have such a policy in the light of the climate emergency. Such a judgement is not the function of the court. The issue for the court was whether the Secretary of State erred in law by misinterpreting policy. (Judgment 113 to 124.)