Gove over Gov?

Not just a Building, it's an M&S Building

Aside from the result, it feels less than ideal that the Michael Gove, Secretary of State, can call-in an application for their own decision-making. Why bother with the local Council, London Mayor, legal processes, millions of pounds of expense and the expert Planning Inspector (David Nicholson) if one political person can decide the outcome?

Then there is the result, an overrule. Gove cites carbon (dressed up as a heritage issue), when his and the Inspector’s report fail to conclude whether the new building would use less carbon than a refurbishment. What was the point of an inquiry if he disagrees and ignores the conclusions and recommendations of his appointed expert Planning Inspector?

Just like the LPA, I’m all about retrofit first, not retrofit only. And anyone who has read this newsletter before will know I’m keen for the circular economy and in particular material reuse. But we must acknowledge that carbon is just one element of a very complex planning balance. This was a 50/50 decision and I imagine there would have been “shock” whichever way the result went. This whole debacle reinforces my view that every site, every building and every project is different. Unfortunately for M&S, their scheme seems to have attracted far too much attention and has now become an unwilling symbol of retrofit only.

Yes, we have to be more sustainable in our developments and I do believe the industry has now realised there is much that can be done to reuse existing buildings rather than just tear them down. I’m not (I’m sure like most people sharing an opinion) in the detail enough to say whether M&S’s presentation of a refurb alternative was credible or lacking detail. I also see the many representations which suggest that a refurbishment ‘must be possible’. I’m sure one is, but is it viable, how different are the carbon numbers and does it represent the best use of this land for the next 60+ years? I don’t know, but isn’t that the job of the Council, the Mayor and the Inspector to opine on?

Uncertainty for an industry is never a good thing, especially when it comes to government policy. One statement following the refusal said that we should now progress with nationwide guidance to support this decision - this just goes to show that things are being done in the wrong order.

Our industry needs confidence to invest and support growth and this is not a positive signal. We need a strong “Gov” with clear policy and no virtue signalling, not just a “Gove”.

---

Here’s how this all played out… quite the saga, including numerous Mayoral U-turns on whether he would or would not intervene.

• Application on 2nd July 2021, with resolution to grant on 23rd November 2021

• Following the period of Mayoral U-turns, it was finally called-in by the Secretary of State on 20th June 2022, with inquiry held between 25th October and 4th November 2022 (report issued 1st February 2023)

• After some delay, Secretary of State (Michael Gove) refusal issued on 20th July 2023.

You can read the full decision notice here, but I’ve summarised the key elements below. Both Gove and the Planning Inspector refer to “Main Issues”, so I’ve captured both their views under these headings.

First though, here’s an overview of the Planning Inspector’s conclusion:

The proposed scheme is likely to prevent the closure of the M&S store and the potential loss of a flagship store. The existing buildings are unsuitable for the site's needs, and meaningful refurbishment is unlikely. Without the proposed development, substantial office development would also be improbable in the foreseeable future.

If the scheme is not approved, the closure and partial vacancy of the store would contradict the development plan and raise concerns about Oxford Street's vitality and viability. The benefits of the proposed scheme, including preventing the closure of the store and supporting the development plan, outweigh the identified harms to heritage and the UK's transition to a zero-carbon economy.

The main material consideration that heavily weighs against the scheme is the extent of embodied energy required for a new building, which would result in more carbon emissions than after achieving a net-zero grid. Policy in this area is still evolving, and the Secretary of State can use their judgment to assign greater weight to this consideration than indicated by current policy alone.

In conclusion, considering all the material considerations, the proposals align with the development plan, and permission for the scheme should be granted.

---

“Main Issues” Summary

Heritage Impacts

Inspector:

Selfridges is considered a significant building with Grade II* status due to its architectural quality. Orchard House, currently providing a sympathetic backdrop to Selfridges, would be demolished. The scheme would be neutral regarding the replacement of other buildings (Neale House and 23 Orchard Street) as they are already at odds with Selfridges.

Visual changes would cause less than substantial harm to the settings and significance of the designated heritage assets. The loss of Orchard House and the prominence and distraction caused by the proposed replacement would be the primary factors contributing to this harm.

Overall, the proposed development would have a slightly harmful effect on the settings of designated heritage assets, including Selfridges and other areas within the vicinity. However, the harm is considered to be less than substantial, and the impact on other designated heritage assets in the area would be limited.

Orchard House, though not exceptionally remarkable, is considered a respectable building with good quality Portland stone cladding. However, alterations over time have affected its character, including the removal of balconies and statues, resulting in a loss of architectural articulation. While the loss would be a little sad for those familiar with it, its harm is deemed moderate, given the vast number of listed classical buildings in London.

Hesketh House stands within the Portman Estate Conservation Area and is connected to the appeal site by a bridge over Portman Mews South. Removing the unsightly bridge and reinstating the end wall is considered an enhancement to Hesketh House and the Portman Estate Conservation Area, as well as to the setting of Selfridges.

Other NDHAs (Non-designated Heritage Assets) in the area, including 11-25 Granville Place, 7-9 Portman Street, and 1-2 Portman Mews South, are located at a sufficient distance from the parts of the site with heritage interest, and the presence of other large and tall buildings in the area means there would be no heritage harm to their settings.

Historic England and SAVE suggested that Oxford Street might be worthy of consideration as a Conservation Area, potentially including Orchard House. However, the Inspector rejects this idea, stating that Oxford Street is not a Conservation Area, and the considerations that would apply in such a scenario are not part of the current inquiry.

Westminster City Council argued that the proposals would improve the appearance of the site and the public realm. The Inspector acknowledges the potential heritage benefits of restoring an East-West connection along Granville Place and the general improvement to the public realm, which would positively impact the settings of heritage assets.

Gove:

Gove agrees with the Inspector's findings regarding the impact on designated heritage assets. The scheme would have no direct effect on these assets, but it would cause harm to their significance derived from their settings. The height and appearance, especially the cornice, would be prominent and distracting from Selfridges' facade and negatively affect the settings of Stratford Place, Mayfair, and Portman Estate Conservation Areas.

The harm to the setting of Selfridges and the designated heritage assets would be less than substantial but still significant. He gives very great weight to the harm to designated heritage assets and disagrees with the Inspector's weighting assessment. He also considers Orchard House, although not listed, to be a NDHA with significant value and importance in the context of Selfridges.

He agrees with the Inspector's assessment of limited weight for other NDHAs, the possibility of an Oxford Street Conservation Area, and demolition without rebuilding. However, he recognises some heritage benefits of the proposed scheme, such as providing a coherent backdrop to Selfridges, removing unsightly additions, and enhancing the public realm. These heritage benefits carry moderate weight.

Net Zero Transition

Inspector:

Highlights the urgent need to address climate change and reduce greenhouse gas emissions, particularly embodied carbon. The scheme involves demolishing recent and structurally sound buildings and constructing a larger new building with two levels of basements, which would result in substantial embodied energy and exacerbate climate change.

M&S argued that the new building would use less carbon over its life than a refurbishment, but this was contested, and different assumptions were used for the calculations. The timing of the development concerning the planned decarbonisation of the electricity grid is also considered, with a suggestion that delaying the project might reduce embodied energy.

There would be substantial harm due to the demolition's embodied energy, and there should be a strong presumption in favour of repurposing and reusing buildings. The consideration of whether an alternative scheme is realistically available is discussed as part of the overall sustainability assessment.

Gove:

He carefully considered the Inspector's analysis and the arguments regarding sustainability and carbon emissions. There was agreement that the scheme would involve much greater embodied carbon than refurbishment. The understanding of whole life-cycle assessments and carbon calculations is still developing, leading to disagreement over the lifetime carbon usage for the proposals and refurbishment.

Regarding the extent of embodied energy, it was acknowledged that redeveloping now would result in more carbon emissions than after achieving a net-zero grid. However, the existing store is currently assessed as failing, and the scheme is supported by some current development plan policies aiming to support regeneration and economic development. Thus, the impact of embodied energy carries limited weight against the proposal.

He agrees with the Inspector that there are benefits of developing at a highly sustainable and accessible location, but no empirical evidence supports a reduction in development pressure elsewhere. Generally, there should be a strong presumption in favour of repurposing and reusing buildings, but the circumstances of each case must be considered, including how important it is to optimise the site's use and the availability of realistic alternatives. These factors are further discussed in relation to local and national policies and the harm arising from embodied energy.

Public Benefits

Inspector:

M&S has expressed that if permission is not granted, they will not continue to operate from the current store, potentially causing significant harm to the vitality and viability of Oxford Street and the West End. The scheme would also create employment opportunities, contribute to economic activity, and offer urban design benefits such as improved public realm and heritage enhancements.

The building's appearance is described as bold and striking, with high-quality detailing, making it a suitable neighbour to Selfridges. The proposed development would introduce new public spaces, enhance accessibility, and provide heritage benefits.

The advantages of the proposed development, such as employment opportunities, economic activity, and improved urban design, outweigh the potential harm to the historic environment and the UK's transition to a zero-carbon economy. The Inspector goes on to consider whether there are better ways that these benefits could be achieved.

Gove:

The Secretary of State agrees with the Inspector's assessment of public benefits, acknowledging the benefits to employment and regeneration through improved retail and office floorspace, as well as enhanced permeability, connectivity, safety, shopping experience, and public realm. These benefits are considered to collectively carry significant weight.

The scheme also attracts support from relevant local plan policies that link development density to infrastructure provision, promote a design-led approach optimising site capacity in well-served locations, and support economic growth through new and improved office floorspace.

Same Benefits with Less Harm?

Inspector:

The SAVE organisation argued for the viability of a comprehensive refurbishment scheme, presenting an alternative plan. However, the inquiry found that the refurbishment proposal faced numerous structural and functional challenges, making it unlikely to be viable or deliverable.

The Inspector concluded that there is no feasible alternative to the proposed redevelopment, and refusing the application would likely result in the closure of the store, causing harm to the vitality and viability of the area. Sustainability considerations, such as whole-life cost assessments and effects on carbon emissions, were acknowledged as important but were deemed impractical in this particular case due to the difficulties with the existing buildings. It was also noted that prolonging the life of a declining store through refurbishment would only delay its eventual closure.

Gove:

Gove has carefully considered the extent to which alternatives to demolition have been explored and whether the benefits of the proposed development could be achieved with less harm. The onus lies on the M&S to demonstrate that refurbishment is not deliverable or appropriate and that all reasonable alternatives have been considered.

The Inspector identified gaps and limitations in the evidence related to refurbishment consideration. While M&S argued that no refurbishment option was fully deliverable, the Inspector found it challenging to reach definitive conclusions on the matter. Various architects' evidence was not thoroughly analysed in relation to retrofitting existing buildings, and the Inspector considered SAVE's proposal without clear conclusions on its viability.

Gove does not find the M&S’s evidence persuasive, and due to insufficient evidence, concludes that it is not possible to determine whether a viable and deliverable alternative exists. They have not demonstrated that refurbishment is not viable, and the exploration of alternatives to demolition has not been adequately thorough.

While M&S stated that they would not continue trading if permission is refused, Gove disagrees with the Inspector's view that redevelopment is the only realistic option to avoid a vacant site. There is potential for harm to the vitality and viability of Oxford Street, but the extent of this harm would likely be limited, and the he attributes limited weight to this possibility.

Consistent with Development Plan and National Policies?

Inspector:

The proposed development would cause some harm to the setting of Selfridges, Stratford Place, Portman Estate, and Mayfair Conservation Areas, and the loss of Orchard House would also impact a NDHA. However, the public benefits of the scheme outweigh these harms, according to the National Planning Policy Framework (NPPF) guidelines.

Public benefits, particularly for Oxford Street and the West End of London, are substantial enough to justify the less than substantial harm to the heritage assets. Additionally, the inquiry considered whether an alternative scheme could provide similar benefits with less harm, but none such scheme was found to be feasible. Thus, the conclusion remains that the public benefits outweigh the harm caused to the affected heritage assets.

The scheme adheres to the development plan policies and, even if it hadn't, the NPPF heritage policies would still be a material consideration that could outweigh any conflict.

Regarding zero-carbon considerations, various policies aim to address climate change, carbon emissions, energy, and waste minimisation. The scheme generally impedes the transition to a zero-carbon economy, which should be a significant concern. However, some policies support commercial development on the site, with a mandate for maximising development and growth while considering sustainability.

The site's well-connected location, supported by infrastructure like the Elizabeth Line, allows for concentrated development in a highly accessible area, potentially reducing pressure for growth in less sustainable locations. This consideration adds substantial weight to the benefits of developing in such a sustainable location, mitigating some of the harm caused by increased carbon emissions.

Gove:

Gove considered the heritage impacts of the proposed scheme, finding that harm to the settings and significance of designated heritage assets would fall into the "less than substantial" category. However, the harm to certain heritage assets, including Selfridges and Orchard House, was given very great weight. In terms of non-designated heritage assets, the loss of Orchard House was attributed substantial weight.

Regarding compliance with development plan heritage policies, there was both partial accordance and partial conflict with relevant policies, and the scheme did not fully accord with them.

Regarding policies on minimising greenhouse gases, energy, reducing waste, supporting the circular economy, and design, the proposal partially complied with some aspects of these policies but conflicted with others, especially due to the impact on designated heritage assets. The proposal was found not to fully support the transition to a low-carbon future and the reuse of existing resources, which carried moderate weight against the scheme. The embodied carbon was also considered to carry moderate weight in this particular case.

Overall, he concluded that the public benefits of the proposal would not outweigh the harm to designated heritage assets and other considerations, leading to a failure to conserve the heritage assets appropriately. The scheme did not fully comply with relevant development plan heritage policies and other sustainability-related policies.

Other Matters

Inspector:

The store in question has experienced a decline in trade due to a lack of investment in the building. It is challenging to determine whether this decline is primarily caused by the building's shortcomings or under-investment over several years; likely, both factors contribute to it. The Volterra Report supports the need for the proposed scheme, but its findings mainly align with existing policies in the development plan.

M&S argued that the building could be demolished anyway, but the likelihood of that happening without a new planning permission is doubtful. The potential for a demolition policy in WCC's next City Plan is considered, but it is given limited weight as it is still in the early stages. Concerns about setting a precedent for future developments and the impact on climate change are legitimate, and two options are presented: recommending refusal to discourage unnecessary demolition and redevelopment, or explaining the complexities of the connected buildings, making refurbishment unviable.

The Inspector favours the latter option, but acknowledges that fear of precedent could be a material consideration for the Gove to dismiss the application. Refusing the application would limit the store's expansion, contradicting recently adopted development plan policies aimed at improving Oxford Street and the surrounding areas. While there are some heritage benefits and sustainability advantages in the proposed scheme, considerable weight is given to the overall benefits that align with the development plan.

Gove:

Gove considered the Inspector's comments about the principle that reducing climate change should generally take precedence over other matters. The Secretary of State acknowledged that climate change policy is continuously evolving and that his decision on the weight given to climate change considerations is specific to this case. He also addressed the Inspector's concern about setting a precedent, stating that any future decision-makers would thoroughly consider the specific facts, development plan policy matrix, the Inspector's report, and the evidence presented in this case, making it unlikely to directly influence other cases.