The High Court ruling overturning Michael Gove’s decision to deny M&S permission to redevelop its Oxford Street store shows that a framework setting out the conditions for redevelopment is urgently needed

Last week’s High Court decision to overturn Michael Gove’s refusal to allow M&S permission to redevelop its Oxford Street store is perhaps most notable for exposing the extent of the malaise afflicting our planning system. In a case that has dragged on for six years, the secretary of state overruled the decisions of Westminster council and the mayor of London, who agreed that the redevelopment could go ahead.

He also went against the advice of his planning inspector, who said that refusing the development would lead to substantial harm to the viability of Oxford Street and the surrounding area.

Tom Lane

Vast amounts of time and money have been spent only for the High Court to find that Gove failed on five out the of six grounds behind the appeal. Lawyers said that he had misunderstood several clear areas and facts regarding planning policy.

In essence, Gove based his decision on the belief that there should be a strong presumption in favour of retaining existing buildings even though there is no such wording in the NPPF. So what could happen next?

A strong presumption in favour of retaining existing buildings has the potential to stymie development and preserve places in aspic

Gove could revise the NPPF to include a strong presumption in favour of retaining existing buildings and apply to the court to have the decision overturned. But this is unlikely to happen before the next election, and nor should it as incorporating this wording into the NPPF is not to be undertaken lightly.

A strong presumption in favour of retaining existing buildings has the potential to stymie development in some places and preserve places in aspic, which many would agree is not desirable or even the best approach to reducing carbon emissions.

The reality is that prioritising the reuse rather than demolition of buildings is now front and centre in the minds of many of the big developers which is the most positive outcome from the M&S case. But a “thou shalt not redevelop” mentality is unhelpful as many buildings are not suitable for repurposing thanks to limited floor-to-ceiling heights or poor structural condition. And there are buildings where the added amenity and potential to boost the economic fortunes of an area should outweigh the arguments in favour of retention.

What the M&S case demonstrates is that there must be some clarity regarding what development is acceptable. Incorporating a presumption in favour of retaining buildings in the NPPF is all well and good, the key is to get the balance of retention versus redevelopment right and ensure that the rules and guidelines accompanying this provide clarity for the industry.

Without this, net zero decision making could become a postcode lottery, with the risk of development moving to areas where planners look more favourably on redevelopment. Indeed, this is already happening: Westminster council recently unveiled proposals that will require developers to explore retrofit before demolition and apply embodied carbon targets to all new buildings based on LETI benchmarks. Housing will be given more leeway than other types of development and there will be a carbon offset price of £880 a tonne.

Meanwhile the City of London is revising its city plan and is also proposing a retrofit first policy, but it is not applying embodied carbon targets. Instead developers need to consider the whole-life carbon impacts for all the options for a development site to establish the most sustainable and suitable approach. The carbon offset price is £90 a tonne, nearly a tenth that of its immediate neighbour.

There will be many smaller developers who are unaware of whole-life carbon assessments let alone know how to carry one out

Revisions to the NPPF should be accompanied by a framework which encourages developers to examine the upfront and whole-life carbon impacts of development in a consistent way. The London Plan already requires developers of large schemes to submit whole-life carbon assessments at planning stage. But this is unique to London; there will be many smaller developers who are unaware of whole-life carbon assessments let alone know how to carry one out.

>> Also read: Building the Future Commission findings: Powering down the road to net zero

Embodied carbon and whole-life calculation should be introduced as a requirement before a presumption in favour of retaining existing buildings is introduced into the NPPF because it will require developers to consider this at design stage in places outside London.

The government announced that it was going to consult on the regulation of embodied carbon towards the end of last year. It would do well to look at Part Z, which was developed by the industry with widespread support. This sets out how upfront and whole-life carbon could be measured and ultimately regulated.

Changing the NPPF to incorporate a presumption in favour of building retention must be accompanied by investment in planning. There is already a serious shortage of planners, leading to unacceptable delays and requiring planners to assess applications on carbon grounds in addition to all the other considerations will make this worse.

Planners will need appropriate training to understand the impacts of carbon during construction, operation and how to balance this against other considerations such as amenity and value. More planners will be needed to compensate for the extra time spent determining applications. Further fee increases are likely.

Nudging developers towards building retention should be accompanied by other measures to encourage this. Carbon taxes tipping the balance towards retention are a useful tool providing these are set at a sensible level that does not stymie viability. Equally, reuse should be incentivised by equalising VAT on refurbishment and new-build.

Implementing embodied carbon regulation, upskilling planners then subsequently updating the NPPF to gently nudge developers towards building reuse will take far more time than is left in the life of the current government. If Gove is serious about reducing the carbon impacts of the built environment across the country, he should focus on that rather than hastily revising planning law to save face.

Thomas Lane is technical editor at Building