The government “misunderstood and misapplied” planning policy when it blocked the renovation of Marks & Spencer’s Oxford Street flagship store, the High Court has heard.

marks spencer marble arch

Orchard House, Marks & Spencer’s contested site at London’s Marble Arch

Marks & Spencer and Michael Gove, secretary of state for levelling up, housing and communities, have been in a long-running dispute over plans for the retailer’s Oxford Street store.

Gove had blocked plans to replace the Marble Arch building with a new shop and office block in July last year, and M&S’ legal team is calling for the “unusual decision” to be overturned.

Marks & Spencer has brought legal action against the government, Westminster City Council and Save Britain’s Heritage after its wishes to flatten Orchard House on Oxford Street, was rejected.

M&S claims the redevelopment of the store is “of fundamental importance” to the future of the West End, and applied to the council in 2021 for permission to demolish Orchard House and build a nine-storey building with retail space, a cafe, a gym and an office.

Gove has said the building should be refurbished rather than demolished as it could negatively affect nearby heritage assets such as Selfridges.

He refused planning permission in July 2023, overruling a government planning inspector who gave his approval in February 2023.

The inspector, David Nicholson, said demolition was the only option as the building was not “suited to meeting the needs for the site”.

He added that blocking the plans would likely lead to the store closing down, which would harm the area, while Gove later said there was “no compelling justification” for demolition.

Misunderstandings and presumptions

In written arguments at the High Court, Paul Shadarevian KC, representing the Department for Levelling Up, Housing and Communities (DLUHC), said: “The secretary of state was entitled to say that in the circumstances of this case, there should be a strong presumption in favour of reusing buildings.

“It is abundantly apparent that the secretary of state both understood the inspector’s conclusions and gave adequate reasons for disagreeing with them.”

Russell Harris KC, representing M&S, said in his written argument that this was a “legally faulty misunderstanding” of national planning policy and that “no such presumption” in favour of reusing or refurbishing buildings existed.

He added that if demolition was banned, the refurbishment could create the same or higher carbon emissions and said the store “would close” in its current form due as it is “significantly under trading”.

The barrister said: “There is nothing more here than a general positive encouragement of the conversion of existing buildings, which itself is entirely different from the wholesale, deep refurbishment which is at issue in this case.

“It has nothing that could be described as a presumption, let alone a strong presumption.”

The hearing is due to conclude on Wednesday before Mrs Justice Lieven.