The Heritage Decision Lottery: Stonehenge and the M&S building

Posted on: August 14, 2023 by

The month of July saw two opposing planning decisions being made with one thing in common: their subject and focus being designated heritage assets; Stonehenge and the proposed tunnel within its vicinity and the Marks and Spencer building on Oxford Street, London. Both of them highlight the complexity of dealing with heritage assets within the existing planning framework in England.

On 14 July the Transport Secretary Mark Harper granted the Development Consent Order (DCO) giving the go-ahead for the controversial plans to place part of the road running south of Stonehenge into a tunnel in order to alleviate the congestion on this stretch of the A303. A previous DCO had been granted in 2020, which was challenged legally through a successful application for judicial review of the decision-making process in 2021. This resulted in the DCO being quashed and reverting back to the decision maker, i.e. the Secretary of State for Transport. As was covered in our blog at the time, the big risk was that the same decision could be arrived at. And this is exactly what has happened.


The previous DCO was quashed with the judge ruling that the Minister did not have before him “legally sufficient material to be able lawfully to carry out the heritage balancing exercise required“. The Minister had also failed to consider alternatives to the scheme, such alternatives that would have resulted in significantly less impacts on Stonehenge, the World Heritage Site and other known and unknown archaeology. Throughout the first legal challenge it became apparent how much the advice and evidence gathered resulted in conflicting opinions with Historic England, the statutory consultee and body responsible for conserving Stonehenge, agreeing to the proposal, while others were vehemently against it.

The Planning Inspectorate examiner’s report clearly states that substantial harm to the WHS would result from the tunnel. However, in his decision letter Mark Harper has said that the harm suffered by the heritage assets will be less than substantial, and that the proposed mitigation measures will be sufficient to minimise the harm to the WHS.

Stonehenge is a scheduled ancient monument and its designation and protection is conferred by the Ancient Monuments and Archaeological Areas Act 1979. The WHS is a UNESCO designation. Both of these determine that they are of the highest importance or ‘significance’ in heritage terms and therefore deserve the highest level of careful protection. A quick look at Historic England’s National Heritage List shows that the whole of the WHS is peppered with scheduled ancient monuments, deserving of equal protection, as well as an unknown amount of other archaeological information. When substantial harm to the significance of a designated heritage asset will result, consent should be refused unless it can be demonstrated that the substantial harm or loss of significance is necessary in order to deliver substantial public benefits that outweigh that loss or harm (as per paragraphs 5.133-5.134 of the National Policy Statement for National Networks (NPSNN)). Undesignated heritage assets, such as the archaeology in between all the scheduled monuments is also deserving of protection as stated in paragraph 5.124 NPSNN.

Harper’s letter states that he is satisfied that the scheme has been designed to accord with NPSNN policies and that no conflicts arose. It also says that he has considered the alternative proposals, and while these would avoid some harm, “the disadvantages of these alternatives, such as the extra cost and the delay in realising the social, economic and heritage benefits, are not enough to achieve the reduction in harm to heritage assets and other harms identified“.

The project has been estimated at £1.7 billion, and will likely go up given the current financial climate. The substantial public benefits Harper describes are: growths in jobs, housing and tourism which would be facilitated by the resulting better and faster transport link between the south east and the south west.

Less than a week after the DCO for the Stonehenge tunnel was announced, Michael Gove, the Secretary of State for Levelling Up, Housing and Communities refused planning permission to demolish and redevelop the Marks and Spencer (M&S) store at 465-472 Oxford Street. A planning application to demolish and redevelop this purpose-built 1920s building (and two modern buildings linked to it), had been submitted in 2021, with City of Westminster Council and the Greater London Authority approving the scheme and permission being subsequently granted. However, Gove called in the plans in June 2022, meaning he wanted the application to be referred to him for decision. Following the subsequent enquiry, the planning inspector agreed with the proposed scheme, but Gove has u-turned on all of these.

Marks & Spencer


His decision was based on three points: adverse impact on heritage assets, embodied carbon emissions resulting from demolition compared to retention and whether the public benefits would outweigh the heritage harm or adverse carbon consequences.

The M&S building is not listed and so is not a designated heritage asset. However, many consider the building to be of historic and architectural merit, a prime example of 1920s architecture as a purpose-built department store. The heritage harm resulting from the scheme is focused on an unlisted building and nearby listed buildings and the Conservation Area. Like the NPSNN, the National Planning Policy Framework (NPPF) includes provision stipulating that undesignated heritage assets also deserve protection; the test for justifying harm is the same as that in the NPSNN.

When granting planning permission, City of Westminster Council did note the negative heritage impact; however, Gove did not agree with them in their statement that the public benefits would outweigh the harm. He also disagreed with their approach to assessing the embodied carbon and viable alternatives. As with any such situation, Gove’s decision has been criticised by many, as well as welcomed by others.

Reaching planning decisions is never an easy exercise, whether it includes heritage assets or not. It is an extremely difficult balancing exercise, requiring adherence to various policies, often conflicting ones, reliance on many expert reports and technicalities. While it is obvious that one cannot compare the planning process involving three buildings versus a tunnel across part of a WHS, both decisions bring up interesting issues surrounding the treatment of harm on designated and non-designated heritage assets and the policies surrounding embodied carbon and net-zero emissions.

Assessing significance of a heritage asset might seem a fairly straightforward concept, but it becomes more complex when many assets must be considered together. Understanding and assessing the value of undesignated archaeological assets that are still below the ground and not even discovered yet can be even more difficult to explain and justify. One could also argue that the problems become more complex when the same terminology and tests are applied to both archaeology and buildings or other above ground visible structures. The M&S building is very visible and commands an impressive presence, while the vast majority of the undesignated archaeology within the WHS is not visible. Prior to the commencement of the tunnel’s construction, an extensive programme of archaeological investigations would take place, ensuring that any finds and their context as well as environmental finds are recorded and an extensive programme of public engagement would also be included. While some would argue that this is an opportunity to increase our knowledge of this extraordinary prehistoric landscape, others consider that the means do not justify the aim – and both positions are correct and entirely justifiable. The resulting social media storm amongst archaeologists following the announcement of the DCO perfectly highlights the divisions in thinking amongst archaeologists, despite the fact that all have at their core a passion for understanding, studying and preserving the past. The M&S building could be fully recorded prior to its demolition providing a full and comprehensive archive of its existence; it also exists in countless photographs taken by millions of people. To some this would be a sufficient record of its existence, to others its loss and the resultant change in streetscape and relationship to other nearby buildings which chart the urban development would be inexcusable. Again, both sides are valid in their opinions and views.

The carbon footprint of the proposed tunnel was not part of the decision-making process (as far as we know), but since the DCO’s announcement the topic has arisen. The report from National Highways states that the scheme would increase carbon emissions by 2.5m tonnes over its lifetime; whether or not this figure includes the carbon emissions resulting from its construction and all the archaeological work which would have to take place beforehand is not known, but if it does not then these additional figures could be eyewatering. Government policies are pushing for less reliance on vehicles and road usage; there are also policies focusing on maximising and adapting existing infrastructure. Gove’s decision seems to have relied heavily on re-using the existing building through alternative uses which would have resulted in a lower carbon footprint. However, the manner in which whole-life carbon assessments are undertaken is not clear and improvement is needed. This is clear when considering both the scenarios being discussed here.

Which approach should be taken and whether one policy should be weighted more than the other, is an unknown factor.

A whole other discussion could be centred around the definition and measurement of public benefits. But that will be a future discussion. What is evident is that all the crucial factors in each of these decisions are highly subjective and emotionally charged. They are also extremely political, and this is probably the most difficult to reconcile with.

Image Credits:

Stonehenge, 2007, Gareth Wiscombe via Wikimedia Commons CC 2.0 – File:Stonehenge2007 07 30.jpg – Wikimedia Commons.

Marks and Spencer Oxford Street, Gary Rogers, Geograph via Wikimedia Commons CC 2.0 – File:Marks and Spencer – – 1466040.jpg – Wikimedia Commons.