Morbaine Ltd & Anor v First Secretary of State & Ors

In a planning challenge under Town and Country Planning Act 1990, a claimant must show a genuine interest in obtaining relief. Commercial opportunism, without a proprietary or enforceable interest connected with the affected site, is insufficient to make a claimant a person aggrieved. The court may refuse to overlook late service in a public-law challenge where there is no good explanation and the grounds have no real prospect of success, even if the delay is short and causes no demonstrated prejudice. A decision-maker’s failure expressly to mention a relevant planning policy does not justify quashing where the policy was not materially engaged or where reconsideration could not realistically produce a different result.

Morbaine Ltd and Abigail Roberts challenged the Secretary of State’s grant of planning permission under section 288 of the Town and Country Planning Act 1990 for a substantial mixed-use development in Hanley. Lear Management Ltd applied to strike out or obtain summary judgment on the grounds that the claimants lacked standing, service was late, and the substantive grounds had no real prospect of success.

The challenges alleged failures to apply PPG6 policies concerning employment effects, the sequential approach to site selection, and the use of retail development to regenerate vacant or derelict sites.

1. Disposition. Lear’s applications succeeded. Judgment was entered against both claimants under CPR Part 24. The claims had no real prospect of success; Morbaine also lacked standing, and both claims had been served out of time.
2. Standing. A commercial developer who had no proprietary, enforceable or other established interest in land affected by the permission, and who sought to promote its commercial opportunity by overturning a rival development, was not a person aggrieved under section 288. This was commercial opportunism rather than a genuine interest in obtaining relief. Ms Roberts appeared initially to qualify as a local resident with a genuine grievance, but her standing was not finally decided because the claims failed on the merits.
3. Late service. The court had power to extend time, but the claimants had offered no good explanation for serving the Secretary of State and the Council one week late. In a public-law challenge, the shortness of the delay and absence of real prejudice were insufficient, particularly where the grounds lacked substance. The court relied on the factors identified in R v Secretary of State for the Environment ex p Parry [1998] COD 17 and Regalbourne Ltd v East Lindsey District Council [1993] COD 297.
4. Policy challenges. There was no evidence of offsetting job losses engaging PPG6 paragraph 3.25. The Secretary of State’s treatment of the sequential approach was reasonably intelligible and, even assuming an error concerning the Longton site, the identified employment and regeneration benefits meant that reconsideration could not realistically produce a different result. Paragraph 3.24 was not materially engaged because the retail development was not being used simply to bring a derelict site into development. In any event, the strongly expressed regeneration findings made a different outcome unrealistic.
5. Costs were subject to detailed assessment, with £35,000 payable on account. Permission to appeal was refused by the judge; the time for seeking permission from the Court of Appeal was abridged.