Application for planning permission for the Marks and Spencer building, Orchard House, Oxford Street, London

In July 2023 an application for planning permission for the Marks and Spencer building, Orchard House, Oxford Street, London, was refused by levelling-up-secretary Michael Gove (Case ref 3301508, 20 July 2023).

The called-in application was for planning permission for demolition of the three existing buildings and for construction of a ‘two-basement, ground-plus-nine-storey’ mixed-use development (Use Class E), comprising retail, cafe and restaurant, office and gym, with a new pedestrian arcade, public realm works and associated works.

The planning inspector had recommended that planning permission should be approved. The secretary of state disagreed, and refused the application. He agreed with the inspector that the proposed new development would cause harm to the setting of the nearby Grade II* listed Selfridges building, but not on the weight that the inspector had attributed to that harm.

The inspector described the development as prominent and distracting to the main Selfridges elevation, when compared to the deferential and subservient character of the existing building, giving this harm moderate weight only. The secretary of state disagreed with the weight apportioned to this harm, giving great weight to the ‘less than substantial’ harm. The apportionment of weight is determined by the decision maker and is supported by the statutory duty (Planning [Listed Buildings and Conservation Areas] Act 1990), and paragraph 199 of the National Planning Policy Framework, which requires that great weight should be given to the conservation of heritage assets.

The secretary of state considered that the weight given to the harm of the setting of the listed building should be greater than that suggested by the inspector and at the upper end of ‘less than substantial’. He considered that the setting of three conservation areas, Stratford Place, Mayfair and Portman Estates, would have various degrees of ‘less than substantial harm’, and that some elements of the scheme would have even lower impact or a neutral impact.

Nonetheless, the finding of harm to the setting of the listed building, and to a lesser extent the setting of the conservation areas, gave rise to a strong presumption against planning permission being granted, and the harm carried great weight, contrary to the inspector’s approach. The secretary of state reassessed the inspector’s analysis of Orchard House as a non-designated heritage asset (NDHA), stating that although it was rejected for listing by Historic England, that did not mean that it was without significance or merit, both as an NDHA and in terms of streetscape and the setting of Selfridges.

Despite Historic England rejecting the spot-listing request relating to Orchard House, the secretary of state agreed with Historic England’s comments that ‘Orchard House is a prominent NDHA which contributes positively to the settings of Selfridges… and the historic retail character of Oxford Street, and that it possesses architectural and historic interest’. Referring to group value and strong similarities between Orchard House and Selfridges, Historic England stated that the proposed development appeared to be a missed opportunity to retain, reuse and adapt the high-quality elements of the site. The secretary of state agreed with this, noting that Historic England did not object to the scheme.

While it is not unusual for a secretary of state to go against an inspector’s recommendation, what is important is the status given to an NDHA and its importance in its own right, as well as part of a group and of the street scene. The emphasis on retaining, reusing and adapting the building is further highlighted in the subsequent paragraphs of the decision, relating to the UK’s transition to a zero-carbon economy; noting that the inspector acknowledged that the carbon emissions would be much greater for demolishing a building than refurbishing. The secretary of state stated that where a building is structurally sound and in a location of the highest accessibility, strong reason would need to be demonstrated for demolition and redevelopment.

This article originally appeared as ‘The secretary of state disagrees’ in the Institute of Historic Building Conservation’s (IHBC’s) Context 178, published in December 2023. It was written by Alexandra Fairclough, conservation officer for Cheshire East, a lecturer and a member of the IHBC legal panel. A former planning inspector, she was called to the bar in 2009, and before that was IHBC law and practice coordinator.