Morbaine Ltd & Anor v First Secretary of State & Ors

These are applications by the third defendant, Lear Management Ltd (“Lear”), made in two closely related claims, the first brought by Morbaine Ltd (“Morbaine”), the second by Ms Abigail Roberts (“Ms Roberts”). The applications seek (in each case) either that the claim be struck out pursuant to CPR Part 3.4(2) on the ground that the claim form (issued under Part 8) and claim disclose no reasonable grounds for bringing the claim or, in the alternative, that summary judgment pursuant to CPR Part 24 be entered against the claimant on the ground that the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why the claim should be disposed of at a trial.

The two claims, which are almost identically worded, are challenges brought by Morbaine and Ms Roberts under section 288 of the Town and Country Planning Act 1990 (“the Act”) to the grant by the first defendant, the First Secretary of State (“the Secretary of State”), of planning permission in favour of Lear for the development of a site at Waterloo Road/York Street, Century Street/New Street, in Hanley, Stoke-on-Trent (“the application site”). The permission granted was for “the erection of 4 (Class A1) non-food retail units [totalling 15,378 sqm], leisure unit (Class D2) [totalling 4,552 sqm], hotel (Class C1) [100 bedrooms] and 2 restaurants (Class A3), with new section of ring road and associated works”. The grant was subject to 29 conditions.

The proposed development was subject to a public inquiry held over eight days between 26 November 2002 and 6 December 2002, following the calling-in of the planning application by the Secretary of State from the second defendant, Stoke-on-Trent City Council (“the Council”), which is the local planning authority. By her report dated 27 January 2003 (“the IR”), the inspector appointed to hold the inquiry recommended to the Secretary of State that planning permission be granted subject to the imposition of various conditions and the completion of a number of section 106 agreements. On 23 December 2003, the Secretary of State issued an interim decision letter (“the IDL”) indicating that he was minded to grant planning permission for the development. He stated that he was deferring the decision on the application to provide the parties with the opportunity to comment on the proposed conditions and on certain other matters. Following further written representations on these matters, the Secretary of State granted planning permission for the development by a decision letter (“the DL”) dated 8 March 2004. The terms of the IDL formed a part of the DL.

The application proposals were supported by the Council. They were also supported by a local residents association and by a housing association involved in a project which assisted people living in the vicinity of the application site. Written representations in support of the application proposals were also received from two Members of Parliament.

Two parties at the inquiry, Chartwell Land Ltd/Norcross Estates Ltd opposed the proposal as did Helical Retail Ltd/Holdcroft Properties Ltd (“Helical”). Chartwell/Norcross, which were concerned with schemes at Tunstall (about three miles north of Hanley), pursued their objections through the inquiry but have not challenged the grant of planning permission. Helical was concerned to safeguard its own development proposals for an out-of-centre site (“the Helical site”) in respect of which it had (as I was told) the benefit of an option agreement with the site owners. In the course of the inquiry, Helical withdrew its objection. Written representations opposing the proposals were received on behalf of an organisation called The Potteries Shopping Centre Partnership Ltd.

Section 288 of the 1990 Act, under which the challenges are brought, states, so far as relevant, that:

“(1)

If any person -

…

(b)

is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds -

(i)

that the action is not within the powers of the Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

…

(3)

An application under this section must be made within six weeks from … the date on which the action is taken.

(4)

This section applies … to any such action on the part of the Secretary of State as is mentioned in subsection (3) of … section [284 of the 1990 Act].”

The actions referred to in subsection (4) include decisions on planning applications that have been called in under section 77 of the 1990 Act. See section 284(3)(a).

By their respective claims, Morbaine and Ms Roberts each seek an order quashing the decision of the Secretary of State to grant planning permission. Each raises the same three grounds of challenge. Shortly stated, they are (1) that in assessing the purported employment benefits of the proposal, the Secretary of State failed to have regard to his policy, set out in paragraph 3.25 of PPG6 (dealing with the assessment of the employment benefits of retail development), in that he took no account of the possibility of off-setting job losses elsewhere, for example in Hanley; (2) that the Secretary of State failed properly to apply the sequential test, established by paragraph 1.11 of PPG6, when concluding that an edge-of-centre site at Longton was not sequentially preferable to the application site and that the identified benefits of the proposed development were sufficient to outweigh his concerns about the approach taken by the inspector to that test; and (3) that the Secretary of State failed to have regard to his policy, set out in paragraph 3.24 of PPG6 (that retail proposals should not be justified simply as a mechanism to bring vacant or derelict sites into development), in that he failed to consider whether Lear’s proposals would help to support the vitality and viability of existing centres, as required by that policy.

The grounds of Lear’s applications that the court should strike out the claims or dispose of them summarily are briefly as follows: (1) neither claimant is an “aggrieved person” within the meaning of section 288 and/or the proceedings are an abuse of the process of the court; (2) the applications were not served within the requisite time period and time should not be extended; and (3) the grounds of challenge have no reasonable prospect of success and there is no other reason for the claim to proceed to a full hearing.

It is by no means easy to state exactly what is meant by “aggrieved” as it appears in section 288. Mr Steel QC, appearing with Mr Tabachnik for Lear, drew my attention to Times Investments Ltd v Secretary of State for the Environment & anr (1990) 61 P&CR (a challenge brought under the predecessor section to section 288), in which the Court of Appeal cited a dictum of Ackner J in Turner v Secretary of State for the Environment (1974) 28 P&CR 123 referring to “any person who, in the ordinary sense of the word, is aggrieved by the decision …”. I did not, with respect, find that of much assistance. That said, the expression clearly extends at one end of the spectrum to a person who owns or has an interest in a property affected by the decision in question. It was also common ground that it can include the so-called “public interest litigant”. At the other end of the spectrum it does not extend to someone who is no more that an interfering busybody. In Attorney-General of Gambia v N’Jie [1961] AC 617 at 634 Lord Denning said (albeit in a very different context):

“The words ‘person aggrieved’ are of wide import and should not be subject to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.”

In Lardner v Renfrewshire Council [1997] SLT 1027 (a decision of the first division of the Court of Session), in which the question arose whether the appellant was a person “aggrieved”, in that case, by a determination of a local planning authority to adopt a replacement local plan, the Lord President, Lord Rodger, (delivering the opinion of the court) cited the above passage from N’Jie and said (at 1029) this:

“The appellant is not a person whose own property is directly affected by the adoption of the local plan. On the other hand we readily accept that, as someone who lives near the site and uses it, he is not ‘a mere busybody’. It may be that, had the appellant lodged an objection to the plan and appeared at the inquiry, he would have fallen into the category of an ‘aggrieved person’ if he could have averred a genuine grievance of the kind contemplated by the section [section 232 of the Town and Country Planning (Scotland) Act 1972]. The difficulty for the appellant in this case, however, is precisely that he did not object at the proper time and did not take part in the public inquiry at which issues relating to the draft plan were explored. Counsel accepted that the appellant’s failure to use the prescribed statutory procedures caused serious difficulties for the appellant in now arguing that he is aggrieved …

The appellant in this case … is a member of the public who has an interest in what happens to the site because it is near him and he uses it, but on the other hand he did not avail himself of the opportunities which Parliament has afforded for participating in the process for adopting the local plan. We do not suggest, of course, that someone who has not objected to a draft plan or taken part in an inquiry can never be ‘a person aggrieved’. On the other hand, there is a difference between feeling aggrieved and being aggrieved: for the latter expression to be appropriate, some external basis for feeling ‘upset’ is required - some denial of or affront to his expectations or rights …. The particular circumstances of any case require to be considered and the question must always be whether the appellant can properly be said to be aggrieved by what has happened. In deciding that question it would usually be a relevant factor that, though no fault of counsel, the appellant has failed to state his objection at the appropriate stage of the procedure laid down by Parliament since that procedure is designed to allow objections and problems to be aired and a decision then to be reached by the Council. The nature of the grounds on which the appellant claims to be aggrieved may also be relevant.”

In R (Kides) v South Cambridgeshire DC [2003] JPL 431 (an application for judicial review of the defendant council’s decision to grant planning permission where, although there is no requirement to show that he is an “aggrieved” person, the applicant for relief must demonstrate a sufficient interest) Jonathan Parker LJ, with whom Laws and Aldous LJJ agreed, said at paragraphs 132 to 134:

“132.

That leaves the issue of standing. As to that, it seems to me that there is an important distinction to be drawn between, on the one hand, a person who brings proceedings having no real or genuine interest in obtaining the relief sought, and on the other hand a person who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest.

133.

I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest.

134.

It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds.”

Against that background I consider the particular circumstances of the two claimants.

Morbaine is a commercial property development company based in Widnes. It specialises in the acquisition of sites with a view to their development for commercial purposes. Morbaine lodged no objection to the planning application, took no part in the inquiry and has no proprietary interest in any land affected by the proposed development. Indeed, according to the witness statement of Mr John Finlan who is one of its directors, Morbaine only became aware of Lear’s proposals for the application site on 11 February 2004, ie between the issue of the IDL on 23 December 2003 and the issue of the DL on 8 March 2004. It came to hear of them in the course of negotiations with the owners of the Helical site. Those negotiations arose following a meeting in December 2003 between Mr Finlan’s father and Mr Terry Holdcroft, the chairman of one of the owners of the Helical site. According to Mr Finlan, the owners were unhappy with Helical’s progress in developing their site. A meeting was subsequently arranged between a representative of the site owners and Mr Finlan, together with Morbaine’s in-house planning consultant (Mr Barris Liptrott), “to see if there was anything we could do to bring the development [of the Helical site] to fruition”. It was at a subsequent meeting, held on 11 February, at which Mr Finlan and a co-director from Morbaine put forward proposals for the Helical site, that Morbaine first came to hear about Lear’s proposed development of the application site. Morbaine’s proposals for the Helical site subsequently led to the negotiation of “heads of terms” between Morbaine and the site owners. By the time of the hearing before me, those terms had been more or less agreed although they had not yet been signed. Expressed to be “subject to contract”, they envisage that the parties will enter into contracts at some future date for Morbaine’s acquisition of the Helical site subject to a variety of conditions (for example the obtaining of detailed satisfactory planning permission and an unconditional agreement with so-called end user(s)).

In his witness statement Mr Finlan said that the proposed development for the application site:

“…was of a similar size to our proposed site [ie the Helical site] at Clough Street. We were very concerned that their substantial proposals for non-food retail could have a serious impact on the number and quality of potential tenants who would have a requirement in the Hanley area of non-food and leisure use. The fact was that the Secretary of State had indicated that he was minded to permit the Lear scheme. This meant that Lear were in a more advanced position than the Clough Street site, in relation to which planning permission had not (and still has not) been obtained … Accordingly I had Barris Liptrott have a look at the Secretary of State’s Decision Letter of 8 March 2004 and he subsequently advised me that he was very concerned about some aspects of the decision and felt that they could be open to a legitimate legal challenge …”

A little later in his witness statement Mr Finlan said this:

“It is quite normal practice in the commercial property world for developers to take such legitimate steps as they are entitled to to protect their commercial interests. Morbaine have commenced these proceedings because they are aggrieved that as a result of the Secretary of State’s decision, a very attractive commercial opportunity may be lost to … [Morbaine]…”

It also appears that Mr Finlan has approached the owner of the application site with a view to Morbaine purchasing that site as well. In that regard, Mr Finlan has stated that, although he had instructed Morbaine’s solicitors to issue the current proceedings in order to protect Morbaine’s interests (as he described them) in the Helical site, he explained to a director of the owner of the application site that he was interested in acquiring that site at a price higher than that which Lear had agreed to pay for it. Mr Finlan stated that the purpose of controlling and/or owning the two sites, which, as he acknowledged, would be in direct competition with each other if both had planning permission for the same uses, would be that he could then control both sites and “maximise the development opportunities”.

Mr Corner QC, appearing with Mr Walton for Morbaine and Ms Roberts, submitted that there is nothing improper in Morbaine bringing a claim under section 288 to further its own commercial interests. He referred me to R v Canterbury CC and others, ex p Springimage Ltd (1993) 68 P&CR 171. In that case, in which the applicant sought judicial review of the defendant council’s grant of planning permission for a retail development, Mr David Keene QC (sitting as a deputy judge of the High Court) stated that “if the commercial interest of a person may realistically be affected by a decision in a way not common to the general run of the public, then that provides not only a particular interest on the part of the person concerned, but also a sufficient one for the purposes of judicial review”. Mr Corner pointed out that, in that case, the applicant’s interest was pursuant to an option to purchase nearby land the prospects of obtaining planning permission for the development of which (and therefore the prospects of the development itself) were affected by the planning permission under challenge. So also here he said: Morbaine is pursuing its commercial interest and that interest is realistically affected by the grant of permission for the application site.

But that case, in my view, is very different from the present. In that case the applicant for relief had objected to the planning application and had lodged representations to that effect with the local planning authority. Its interest in the nearby land already subsisted at the time that the planning application was made to which it objected.

Here by contrast Morbaine, a complete stranger to the application site and to the area affected by Lear’s development proposals, happened by chance upon the Helical site at about the time or shortly after the IDL was published, which, of necessity, was long after the planning inquiry into Lear’s development proposals had ended and the inspector had produced her report. Without any commitment to, let alone any proprietary or other enforceable interest in, any land affected by a grant of permission for the application site, Morbaine sees an opportunity to further its own commercial interests through the acquisition of another site if, by means of a successful challenge under section 288, it can upset the grant of planning permission for the application site. In my judgment, commercial opportunism of that nature falls short of the interest (the “real or genuine interest in obtaining relief” which the Court of Appeal had in mind in Kides) which must be shown to give it standing to complain. It is remote from any denial of or affront to a person’s expectations or rights to which Lord Rodger referred in the Lardner decision. It follows that Morbaine does not qualify as a person “aggrieved” by the decision of the Secretary of State to grant planning permission for Lear’s proposals for the application site.

Ms Roberts is a local resident who, with her partner, occupies a property very near to if not actually adjacent to the application site. In November 2001, shortly after Lear had submitted its planning application to the Council, Ms Roberts lodged with the Council written objections to the application based upon traffic, pollution and noise. She took no further part in the planning process affecting the application and lodged no representations in writing to the Secretary of State. Nevertheless, I accept that she continued (and continues) to object to the proposed development. On the face of it, she qualifies as an “aggrieved” person, notwithstanding that she did not appear at the inquiry. I do not accept Mr Steel’s submission that, because the grounds of objection appearing in her claim form are different from the points raised by her in her letter to the Council in November 2001, she cannot on that account properly be described as “aggrieved” by the grant of planning permission.

It is necessary, however, to examine more closely the circumstances in which Ms Roberts came to mount her challenge. I read from paragraphs 9 and 10 of her second witness statement:

“9.

In February this year I was approached by a Mr Robin MacMillan, a representative of Morbaine Ltd who asked me if I was still aggrieved with the proposals by Lear Management to the rear of my property. I advised Mr MacMillan that I was, indeed, still aggrieved and he told me that Morbaine Ltd was also aggrieved as the Lear Scheme affected a scheme which they were working on elsewhere in Hanley.

10.

Robin MacMillan confirmed to me that it was open to me to object to the grant of permission for the Lear Scheme and that Morbaine had identified good grounds to object to it. Robin MacMillan explained to me that Morbaine would be willing to fund my objection. He explained that it would be necessary for me to make a witness statement and to assist Morbaine with the preparation of the objection. He offered me £1000 to enter into an Agreement to assist Morbaine. I agreed with his proposal and accordingly I entered into an agreement with Morbaine on 6^th March 2004. Thereafter I received a claim form from Morbaine’s solicitors which I read, signed and returned to them in order that they could commence proceedings on my behalf in London.”

The agreement to which Ms Roberts refers was in evidence. Described as a “collaboration agreement” it recites that Ms Roberts (described as “the Objector”) and Morbaine believed that “the planning permission was wrongly granted” (in fact no permission had by then been granted, merely the issue of the IDL). It goes on to recite that proceedings (described as “JR Proceedings”) challenging the grant of planning permission would be successful, that Ms Roberts wished to commence such proceedings but was unable to, owing to the cost, and that Morbaine had offered and Ms Roberts had accepted financial assistance to do so. The agreement then provides as follows:

“1.

The Objector agrees following a written request from Morbaine to commence and thereafter prosecute JR Proceedings on terms specified from time to time by Morbaine and pursuant to this the Objector agrees to execute and be party to such documents proceedings and other like matters as Morbaine may in their absolute discretion determine.”

Clause 2 sets out an indemnity by Morbaine against all costs and liabilities which Ms Roberts may incur in complying with clause 1. Clause 3 then provides that (subject only to the provisions of clause 2 in relation to any costs already incurred):

“Morbaine may at any time terminate this Agreement and thereby require the discontinuance of the JR Proceedings.”

Clause 4 provides for the £1000 payment and clause 5 is a confidentiality provision.

It is plain that by that agreement Morbaine has purchased (for that is what the £1000 payment to her and the indemnity involve) Ms Roberts’ willingness to mount a claim under section 288 in case there should be a challenge, as there has been, to its own standing to bring proceedings under the section. It is seeking indirectly to achieve through Ms Roberts what it fears the court might find that it is not entitled to do directly in its own name. For her part, in entering into the compact, Ms Roberts has surrendered entirely to Morbaine the right to decide whether and for how long any challenge is to be made, the basis upon which the challenge is to proceed and all other matters concerned with the prosecution of the challenge. Moreover, it is plain that, but for Morbaine’s approach to her and the indemnity provided by the collaboration agreement, Ms Roberts would not herself have mounted her challenge.

In my judgment there is much to be said for the view, advanced by Mr Steel, that, given these circumstances, Ms Roberts’ claim amounts to an abuse of the court’s process and, accordingly, falls to be struck out on that ground alone. (It is true that Lear’s application does not identify abuse of process as a ground for dismissing Ms Robert’s claim but Mr Steel’s skeleton argument raises the argument and I see no reason why, despite Mr Corner’s objection, the point may not be taken, if necessary of the court’s own motion). Over and above the suggestion of an abuse of process, I see much force in Mr Steel’s further submission that, given the circumstances, it is difficult to regard Ms Roberts as a person “aggrieved” by the decision of the Secretary of State to grant planning permission for Lear’s proposed development of the application site. I should add that, in view of the terms by which she has bound herself to do Morbaine’s bidding, it would be irrelevant to this view of Ms Roberts’ standing that, as she asserts in her third witness statement, she is aware of Morbaine’s wish to purchase the application site and develop it itself (her stance having hitherto been that any substantial retail development is objectionable on grounds of noise, traffic and pollution) or that she entered into the collaboration agreement because it would allow her to challenge the Secretary of State’s decision. Nor would it be relevant that, if she were to repudiate the collaboration agreement and pursue her own separate grounds of objection, Morbaine might have difficulty in enforcing its terms. The fact is that she has entered into that agreement and, thus far at any rate, seems happy to abide by and take advantage of its terms.

But I do not need to come to any conclusions on Ms Roberts’ standing, which I find to be a difficult point, since I have come to a firm view that there is no substance in any event in the grounds of challenge on which Morbaine and Ms Roberts each rely. Before coming to those grounds I must deal with the second of the three matters on which Lear relies for obtaining a summary dismissal of Morbaine’s and Ms Roberts’ claims, namely the delay in effecting service of their claims.

To be brought in time, a challenge under section 288 must be made within six weeks of the date when the action challenged is taken. See section 288(4). The deadline in the instant case was 19 April. In order to meet that deadline, Morbaine and Ms Roberts needed, by that date, to have filed their claims at the Administrative Court and to have served them on the Secretary of State and the Council. See CPR schedule 1, RSC Order 94 rule 2(1), (2) and (3). Curiously, service on Lear, as the successful applicant for the development sanctioned by the impugned action, is not a requirement.

Filing at the Administrative Court was on time, but only just: it was effected on 19 April, the very last day of the six week period. But service on the Secretary of State and the Council was out of time. I was told and accept that the claims were sent under cover of letters dated 22 April and that the letters were posted first class. Assuming that they were put into the post on 22 April, deemed service on the Secretary of State and the Council was effected on Monday 26 April. See CPR Part 6.7. As it happens, the evidence indicates that the covering letters, and therefore the claims, were not actually received by the Council until 27 April and the Secretary of State until 28 April. That would suggest that it took five days for the letters to be delivered. But I proceed on the footing that service was effected on 26 April.

It is common ground that the court has power to extend the time for service. It is not, however, for this court, on the hearing of Lear’s applications, to grant an extension of time: there is no cross-application before the court by Morbaine and Ms Roberts for that relief and, in any event, in the absence of the Secretary of State and the Council (as the parties to be served), neither of which has chosen to take part in the hearing of Lear’s applications, it is not appropriate to proceed as if such an application were before me. The question rather is whether, given the need for service in due time on those persons, the circumstances are such that the court should or should not overlook the delay.

In R v Secretary of State for the Environment ex p Parry [1998] COD 17 (an application to extend time within which to serve proceedings challenging a decision to upgrade a footpath to a bridleway), Scott Baker J said that in exercising the discretion to extend time the court should have regard to three matters: (1) the explanation proffered for the delay, (2) the length of the delay and (3) whether prejudice had been caused to any other party. Another factor, he said, was what he referred to as “the paramount consideration of the interests of justice, namely whether it could be said, by looking at the materials before the court, what prospect of success the applicant had”. He also went on to observe that “it would only be in rare circumstances, in cases involving public bodies and administrative law, that the court’s discretion was likely to be exercised to extend time”.

In the earlier case of Regalbourne Ltd v East Lindsey District Council [1993] COD 297 (an application for an extension of time in which to lodge appeals to the High Court against decisions of a Valuation and Community Charge Tribunal), the Court of Appeal (Sir Thomas Bingham MR, and Kennedy and Evans LJJ) stated that in the absence of agreement the court normally needed to be satisfied that there was an acceptable explanation for the delay, that in the absence of an acceptable explanation the question of prejudice was unlikely to arise and that, even if there was an acceptable explanation, the court might refuse to exercise its discretion to extend time if the delay was substantial or, if to do so, would cause significant prejudice to the respondent. It went on to say:

“In any event, as in the interests of good administration the law required that public law challenges to decisions of tribunals should be made within a limited timescale, the courts would always be reluctant to extend time in such a situation …”

What are the circumstances here? Already by 6 March, the date of the collaboration agreement, both Morbaine and Ms Roberts were of the view, presumably on the basis of the IDL, that the grant of planning permission for Lear’s proposals would be wrong and that a challenge to its lawfulness would be successful. See recital 3 to that agreement. The DL followed two days later. By 17 March at the latest Morbaine was in receipt of it. Morbaine is a substantial and well established company. It was in receipt of expert planning advice (Mr Barris Liptrott and, later, planning counsel). It cannot therefore be said that Morbaine and Ms Roberts were without the resources, or lacked the time within which, to ensure that their challenges were duly served. There is no good reason why that did not happen. It is true that the delay was no more than a week. It is true also that no real prejudice has flowed from that short period of delay. But I am required in the interests of good administration - this being a public law challenge - to consider whether there are any circumstances to overcome the court’s reluctance to disregard the late service of the claims. I do not regard the relatively short period of delay and the absence of prejudice as, in themselves, a sufficient reason. I might have taken a different view if the grounds of challenge raised points of importance or matters of real substance. But, as will shortly appear, they do not.

It follows that, whether or not Morbaine and Ms Roberts are to be regarded as “aggrieved” persons, and irrespective of any question as to their respective standing, the circumstances do not, on the information before me, excuse the late service by them of their claims.

The ground of challenge based upon paragraph 3.25 of PPG6

Paragraph 3.25 states that:

“The local job creation benefits from retail proposals should be carefully assessed, as there may be off-setting losses elsewhere in the area when trade is diverted and, as in the case of food retailing, losses in other sectors, such as processing, packing and distribution.”

Mr Corner submitted that, although the inquiry explored the employment consequences of Lear’s proposals for the application site and its immediately surrounding area, no attention was given, either by the inspector or by the Secretary of State, to any off-setting job losses elsewhere in the area even though there was evidence that, as a result of the proposed development, trade would be diverted. Relevant to this, he submitted, was the inspector’s finding (at IR 15.37 to 15.38) that the application proposals would result in the creation of 500 jobs and the indirect creation (the so-called “multiply effects”) of a further 170 jobs and that they would be of considerable significance in retaining the existing plant at the nearby Fuchs Lubricants site and safeguarding the employment prospects of its workforce. Yet, in an earlier passage (at IR 15.22), the inspector drew attention to a retail impact assessment according to which “the worst case cumulative impact [of the application proposals] is on Hanley itself at 8.6%”. Mr Corner pointed out that the Secretary of State accepted the inspector's conclusions on the number of jobs that would be created and the effect on the Fuchs plant (see IDL 45) by the proposed development but failed, both in his IDL and in his DL, either to mention paragraph 3.25 or to take account of the possibility of off-setting job losses elsewhere in the area as the result of trade diversion in consequence of the development. He submitted that this was a failure by the Secretary of State to have any or any adequate regard to his own policy as set out in that paragraph of PPG6.

He reminded me that, under section 77(4) of the 1990 Act, the Secretary of State is obliged, when determining a planning application, to take into account, inter alia, “other material considerations”, including, where relevant, policies contained in planning policy guidance notes (such as PPG6). He also reminded me that where the circumstances suggest, as he contended they did here, that a relevant policy has been ignored or where there is a real doubt as to how that policy has been applied, the court may intervene, if necessary by quashing the decision.

He went on to submit that the mere fact that the Secretary of State refers in the IDL and the DL to having taken PPG6 into account (for example at IDL 14) is not sufficient. It cannot be assumed that he has had paragraph 3.25 in mind. Indeed, he said, the reverse is arguably the case given that, although the employment consequences of the application proposals were investigated, nowhere in either the IR, or the IDL, or the DL, is there reference to the possibility of job losses.

While not doubting the duty of the Secretary of State to take his own planning policy guidance notes into account when determining a planning application, I regard this criticism of the Secretary of State’s decision as wholly without substance. It seems tolerably clear that there was no evidence before the inquiry of any offsetting job losses elsewhere. At the most, there was evidence of a few job losses from potentially extinguished uses on the application site itself. Despite the fact that there was opposition to the application proposals, in particular from Chartwell Land/Norcross Estates, which were legally represented at the inquiry and presented wide-ranging criticisms of the proposals (they are summarised at considerable length in section 9 of the IR), it is noteworthy that those organisations did not suggest that there would be off-setting job losses. Nor did the Council which, although in favour of the proposals, raised as an issue before the inquiry the impact of the proposals on the viability and vitality of Hanley and other centres. (The Council’s case at the inquiry is set out in section 8.) In these circumstances the Secretary of State (and the inspector for that matter) can scarcely be criticised for making no express findings on off-setting job losses elsewhere when there was no evidence to suggest that there would be any.

But even if the Secretary of State ought to have had, but failed to have, the particular provisions of paragraph 3.25 in mind when reaching his decision, the question is whether there is a real possibility of a different conclusion being taken on a reconsideration of the matter by him if, as I am invited to do, I were to quash his decision. In this connection, the court, if persuaded that the decision maker failed to have regard a matter to which he should have had regard, will only interfere by exercising its discretion to quash the decision where there is a real possibility that the matter in question (here, it is paragraph 3.25) could have made a difference to the decision reached. (See Bolton Metropolitan Borough Council v Secretary of State for the Environment ex p Greater Manchester Waste Disposal Authority (1990) 61 P&CR 343.) Since there was no evidence of any off-setting job losses and, per contra, the Secretary of State was of the view (see paragraph 40 of the IDL) that, even on the worst case, the development would not harm the vitality of Hanley City Centre or their neighbouring town centres, there can, in my judgment, be no real possibility that the Secretary of State would come to a different conclusion.

For these reasons I am not persuaded that there is any arguable merit in this ground of challenge.

The ground of challenge based upon the proper application of the sequential approach

The so-called “sequential approach” is laid down by paragraphs 1.10 and following of PPG6. The relevant paragraphs are as follows:

“1.10

In drawing up their development plans, local planning authorities should, after considering the need for new development, adopt a sequential approach to selecting sites for new retail development. Both local planning authorities and developers selecting sites for development should be able to demonstrate that all potential town centre options have been thoroughly assessed before less central sites are considered for development for key town centre uses. If, however, there is no need or capacity for further developments, there will be no need to identify additional sites in the town.

1.11

Adopting a sequential approach means that first preference should be for town centre sites, where suitable sites, or buildings suitable for conversion are available, followed by edge-of-centre sites, district and local centres and only then out-of-centre sites in locations that are accessible by a choice of means of transport.

1.12

The Government recognises that the approach requires flexibility and realism from local planning authorities, developers and retailers. Developers and retailers will need to be more flexible about the format, design and scale of the development, and the amount of car parking, tailoring these to fit the local circumstances. Local planning authorities should be sensitive to the needs of retailers and other town centre business and identify, in consultation with the private sector, sites that are suitable, viable for the proposed use and likely to become available within a reasonable period of time.”

It will be observed that, in applying the approach, preference is not accorded to a particular site merely because it occupies a town centre location whereas the others do not (or an edge-of-centre location where the others are all out-of-centre sites). As paragraph 1.12 makes clear “the approach requires flexibility and realism” and involves identifying sites that are “suitable, viable for the proposed use and likely to be come available within a reasonable period of time”. The underlying philosophy is that, all else being equal, town centre sites are first in order of preference.

In applying the approach, a factor which comes into play is the concept of “disaggregation”. This refers to the possibility of accommodating elements of the proposed development in one or more other sequentially preferential locations and assessing whether, by so doing, the same benefits can be achieved as would be achieved by locating the whole of the proposed development on a single site.

The inspector had concluded that the application site was edge-of-centre. In considering whether the site satisfied the sequential approach she concluded that there were three other sites that might accommodate the proposed development either in whole or in part. Those sites were the so-called “East/West Precinct” (which lay between the application site and Hanley town centre), a site at Longton and a site at Tunstall East. In respect of the Longton site the inspector concluded that it was “edge-of-centre and … not sequentially preferable to the application site” and that “it could not accommodate the proposed development as a whole because of the existing commitment to develop a food store”. See IR 15.19.

The Secretary of State did not wholly agree with the inspector’s conclusions. He disagreed with her view that the application site was edge-of-centre. Instead, he came to the view (IDL paragraph 27) that, taken as a whole, it was out-of-centre. It is this finding, coupled with his acceptance that Longton was edge-of-centre, that provides the focus for this ground of challenge.

The relevant passage in the IDL, to be found at paragraphs 35 and 36, is as follows:

“35.

The Secretary of State has considered the evidence before him on the sequential assessment carried out by the applicant. The Secretary of State does not agree that the whole of the site is edge-of-centre for the reason set out in paragraphs 27 and 38 to 39 of this letter. Nevertheless, he agrees that apart from the application site there are three main sites which are capable of accommodating the proposed development in whole or in part. He further agrees with the Inspector that the sites at Longton and Tunstall East are not sequentially preferable to the application site and he also agrees that retail proposals should be located as close to the sub-regional centre as possible … The Secretary of State agrees with the Inspector that the City Centre site at the East/West Precinct is a sequentially preferable location and that it is capable of accommodating elements of the application proposal. However, the Secretary of State is also aware that the East/West Precinct is not currently available … He also agrees that there are other town centre sites that could be available to accommodate a hotel, casino and health club as separate entities …

36.

The Secretary of State considerers that, although a large number of sites were carefully examined by the applicant, the possibility of locating elements of the proposed development on different and more sequentially preferable sites in accordance with the guidance in PPG6, as clarified may not have been fully considered. However, in the Secretary of State’s opinion, the identified benefits of the proposed development, and in particular the employment and regeneration benefits the scheme would bring (see paragraphs 45 and 49 to 51 of this letter) are sufficient in this case to outweigh his concerns about the approach taken to the sequential test and it is therefore not necessary for him to reach a conclusion on this particular matter in order to determine the application.” (italics added)

What is said by Mr Corner is that, having found that the application site was out-of-centre (and not edge-of-centre as the inspector had concluded), the Secretary of State was in error in the italicised passage from paragraph 35 in stating, in agreement with the inspector, that Longton (which was edge-of-centre) was “not sequentially preferable”. It was, said Mr Corner, sequentially preferable: as an edge-of-centre site, Longton was clearly and obviously sequentially preferable to the application site which was merely out-of-centre. This error, he said, has had or may have had an impact on the Secretary of State’s overall conclusion regarding the sequential approach, as appearing in paragraph 36 of the IDL (and repeated in paragraph 47), where, after expressing a concern that the possibility of disaggregation might not have been fully considered, the Secretary of State concluded that “the identified benefits of the proposed development, and in particular the employment and regeneration benefits the scheme would bring … are sufficient … to outweigh his concerns about the approach taken to the sequential test” and that, as a consequence, it was not necessary for him to reach a conclusion on that matter in order to determine the planning application. It is not possible, said Mr Corner, to say that, if he had properly taken into account the fact that Longton was sequentially preferable to the application site, the Secretary of State would still have concluded that his concerns about the approach to the sequential test were outweighed by the identified benefits of the proposed development.

Mr Corner’s criticism depends upon showing that, when in paragraph 35 (in the italicised passage) the Secretary of State states that he agrees with the inspector that, inter alia, the Longton site is “not sequentially preferable”, he is using the expression “sequentially preferable” in terms of location alone and is not expressing a conclusion on preferability when viewing all the matters which fall to be considered in the application of the sequential approach.

Fairly read, when set against the corresponding passage in the IR to which the Secretary of State is referring, I do not consider that the Secretary of State was overlooking the fact that, whereas the inspector regarded the application site and the Longton site as both edge-of-centre, he, the Secretary of State, had come to the conclusion that the application site was in truth no more than out-of-centre.

It is to be noted that, in the italicised passage of paragraph 35, the Secretary of State agrees with the inspector not just that the Longton site is “not sequentially preferable” (to the application site) but also that the site at Tunstall East is not sequentially preferable either. In paragraph 15.20 of the IR, the inspector had in terms stated that “the site at Tunstall East … is not sequentially preferable to the application site”. The site at Tunstall East is a town centre site. It was common ground between Lear and Council that this was so. Neither the inspector nor the Secretary of State disagreed with this. In that limited (purely locational) sense, therefore, the site at Tunstall East was sequentially preferable to the application site and this was so whether, as the inspector had held, the application site was edge-of-centre or whether, as the Secretary of State had concluded, it was out-of-centre. Nevertheless the inspector had stated that the site at Tunstall East was not sequentially preferable to the application site and, in the italicised passage in paragraph 35 of the IDL, the Secretary of State agreed with that conclusion.

In my view, it is reasonably clear that in so concluding the inspector was using the expression “sequentially preferable” taking into account not simply location but also the other factors referred to in paragraph 1.12 of PPG6. I do not think that she was overlooking its sequential status as a town (or city) centre site. Likewise, in agreeing with the inspector's conclusion, the Secretary of State, in my view, was not overlooking this fact: he was accepting the inspector's overall conclusion that, notwithstanding its town centre location, the site at Tunstall East was not sequentially preferable to the application site. That being the position with regard to the site at Tunstall East, I see no basis to suppose that, when referring in the same sentence to the site at Longton, the Secretary of State was doing other than agreeing with the inspector’s judgment that, viewed overall (and not simply as a matter of location), Longton too was not sequentially preferable. In the same sentence, the Secretary of State goes on to agree with the inspector that “retail proposals should be located as close to the sub-regional centre [ie Hanley] as possible”. He then goes on to consider the third of the three alternative sites, the East/West Precinct, which, as he points out, is “a sequentially preferable location” (being situated between the application site and Hanley town centre, it was plainly, in terms of location, sequentially preferable) but goes on to say that, although capable of accommodating elements of Lear’s proposal, it was not currently available. He was making a judgment about the overall preferability of the East/West Precinct.

But even if, in the italicised passage, the Secretary of State was referring to sequential preferability in terms of location alone and was overlooking the fact that, as a result of his earlier finding that the application site was, contrary to the inspector's conclusion, out-of-centre and not (like Longton) edge-of-centre, it is clear that, since he was of the view that Lear’s proposed development had employment and regeneration benefits which could be lost if there were to be disaggregation of elements of the development, it cannot realistically be supposed that, if he had had fully in mind that Longton, capable only of accommodating a small part of the development, was, in terms of location, sequentially preferable to the application site, he would have reached a different judgment about the application. This is apparent from the first sentence of paragraph 36 of the IDL where the Secretary of State makes clear that, although of the view that the possibility of locating elements of the proposed development “on different and more sequentially preferable sites in accordance with the guidance of PPG6” may not have been fully considered, he was sufficiently persuaded about the benefits of the scheme and concerned about the possible loss of those benefits if disaggregation were to occur, to feel that it was not necessary to give further consideration to the possibilities of disaggregation.

It follows that I am not persuaded that there is any merit in this ground of challenge.

The ground of challenge based upon paragraph 3.24 of PPG6

Paragraph 3.24 states that:

“Retail development should not be used simply as a mechanism to bring vacant or derelict sites into development, unless it would help to support the vitality and viability of existing centres. Developments, especially those out of centre, may compete with town centres which may need investment for their own regeneration.”

Mr Corner submitted that, given the nature of the application site (ie in part vacant and in part derelict) and a contention by Lear at the inquiry that there was an urgent need to regenerate the site to avoid it lapsing into a derelict and abandoned eyesore, paragraph 3.24 was engaged. The Secretary of State failed, however, to apply that paragraph.

It is true that there is no reference, in terms, either in the IR, or in either the IDL or the DL, to paragraph 3.24. The explanation for this is, in my view, readily evident. It is that the retail development of the application site was not being used simply as a mechanism to bring the site, so far as vacant or derelict, into development. That being so, there was no need to consider whether the retail development would help support the vitality and viability of existing centres. Be that as it may, it is manifest that the development proposals were viewed as bringing very substantial regeneration and other benefits to an area suffering from acute social and economic problems. The following passages from the IR and IDL make this abundantly clear.

In the strongly worded concluding section of her report, the inspector said this:

“15.47

… I consider that the application proposals meet the tests set out in PPG6 and that the proposals would meet its objectives. The proposed development would, in my view, sustain and enhance the City centre …

15.48

If, however, a different conclusion is reached on the retail merits of the case [ie whether the proposed development met the general requirements of the development plan and could also be justified when the retail/leisure elements were measured against the PPG6 tests], I consider that the other material considerations in this case and in this particular area are so strong that planning permission should be granted. The application site is assembled and the scheme could proceed in the short term. The overall scheme is viable and therefore regeneration benefits could be achieved without the use of public funds. A large number of jobs of a type required in the area would be provided as a result of the proposed development and existing development and investment at the Fuchs site [Fuchs Lubricant (UK) plc was the owner of the application site and its own business operations were centred to the south of the site] would be secured.

15.49

The proposed development would provide an environmental uplift. Such major investment would raise confidence and pride amongst both local residents and potential investors. The area would benefit immensely from a major new scheme being built on the edge of the City Centre in an important gateway location. Existing unattractive and outmoded industrial premises, derelict housing and inefficient and unattractive hostel accommodation would be replaced by modern development and facilities and the wider area would be physically and psychologically enhanced.

15.50

The mixed use development would enhance the City Centre and would provide facilities which would be open during the evening, increasing the attractiveness of the area and its evening economy. The proposals have been carefully and comprehensively considered by the City Council and the development has overwhelming local support and would bring considerable benefits to a wide area specifically targeted for regeneration. The regeneration would be the physical transformation of the site and surrounding area, the retention and creation of a large number of jobs suitable for people living in the surrounding area, the creation of a new hostel for the homeless and the refurbishment of two derelict houses on adjacent land to provide a social support centre for local residents.

15.51

These regeneration benefits to the wider area would be provided without the need for public funding thus freeing up public funds to be used elsewhere in the wider area. The need for these regenerative benefits is all too clear. The area is blighted by physical, economic and social problems and has not experienced the benefits of regeneration that have taken place in the conurbations to the north and south of the Potteries. I therefore believe that the need for a major development of this kind and the benefit which would result from it are considerable. I cannot envisage the regeneration being achieved by any other means or type of development within the foreseeable future. The opportunity of improving an area in such dire need of new investment and physical improvement should not be turned away.

15.52

In the absence of any demonstrable harm to any existing town centre, the positive effects of the proposed development would have on the regional centre [ie Hanley] and in view of the very considerable regenerative benefits which would accrue from the application proposals, I consider that planning permission should be granted.”

In the IDL the Secretary of State took up these comments in the following passages:

“49.

The Secretary of State has considered the Inspector's comments and conclusions at IR 15.46 to 15.52 on the need for the development and the benefits from it which would justify the grant of planning permission. The Secretary of State’s conclusion on need for development is set out in paragraph 34 of this letter [ie that “overall the PPG6 test has been met and need has been demonstrated in respect of the retail proposals”] … The Secretary of State understands that the proposed development is in a rundown area, that there are derelict properties on the application site and empty commercial properties adjoining it. He also understands that the proposed development is in a ‘red light’ area where drug use is common.

50.

The Secretary of State has given considerable weight to the employment benefits of the scheme, to the regeneration of Hanley and that of the application site itself. The Secretary of State agrees with the Inspector that the proposed development would provide an environmental uplift in an important gateway location [IR 15.49]. The proposal would also secure the provision of a new hostel for homeless people and additional community facilities by means of a section 106 Planning Obligation. He agrees with the Inspector that replacing outmoded industrial premises, derelict housing and the Granville Hostel with a modern development and facilities would enhance the wider area [IR 15.49]. He also agrees that it is a mixed-use development, which would enhance the city centre, providing facilities which would be open in the evening thus increasing the attractiveness of the area and its evening economy [IR 15.50].

51.

Had the Secretary of State reached a different view with regard to the proposal's compliance with the development plan and the need for the proposed development … he would, nevertheless, have come to the same conclusion on this application because, like the Inspector, he considers that there are other material considerations, namely regeneration and employment, which weigh very heavily in its favour.”

The fact that neither the inspector nor the Secretary of State in terms refers to paragraph 3.24 does not in the least detract from these conclusions. In any event, as with the first ground of challenge, the question at the end of the day is whether, even if the Secretary of State did overlook paragraph 3.24 (assuming that the policy in that paragraph was engaged), it is realistically possible, given the inspector’s very strongly worded conclusions with which the Secretary of State agreed, that he would come to a different view if his attention were specifically drawn to paragraph 3.24. I find it impossible to think that he would.

In view of my conclusions on the three grounds of challenge these claims have no real prospect of success. In any event Morbaine lacks standing and both claims were served out of time. The appropriate course is to exercise my power under CPR Part 24 and enter judgment against the claimants. I shall so order.