High Court judge finds decision by planning inspector that appeal was not properly made was wrong 

An inspector failed to properly consider the position of a company that had entered liquidation while pursuing a planning appeal, the High Court has found.

Mrs Justice Lang in herjudgment allowed the appeal brought by Taytime on one of two grounds argued against the Secretary of State for Levelling Up, Housing and Communities.

Taytime appealed under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision to dismiss its appeal against the refusal of planning permission by Maidstone Borough Council for development at Monks Lake, Marden.

A neighbouring landowner had told the inspector that Taytime’s appeal was not correctly made and thus was not capable of being lawfully determined under section 78 TCPA 1990.

Lang J said the basis of the decision was that the application for planning permission, and the appeal against refusal of planning permission, were both made by Monk Lakes, which in July 2021, filed for creditors voluntary liquidation and therefore could not pursue the appeal on its own behalf.

One joint liquidator wrote to the Planning Inspectorate to say Taytime had been appointed to take over full responsibility for the appeal.

But the inspector concluded: “It is now Taytime pursuing the appeal, as the appellant and not as an agent” which was impermissible. Taytime then appealed on the basis that it was the appointed agent for Monk Lakes.

The first ground of challenge was that the inspector's decision that the appeal was not properly made was plainly wrong as that Monk Lakes validly made the appeal before liquidation proceedings began. MLL had not been dissolved and the appeal had not been withdrawn.

Taytime argued that if the inspector was not satisfied it was validly acting as Monk Lake's agent, the statutory procedure in section 79(6A) TCPA 1990 for the dismissal of a planning appeal for want of prosecution should have been followed.

That would, it said, have given Monk Lakes, through its liquidators, an opportunity to avoid the appeal being dismissed because it was not being pursued.

It also said it had been procedurally unfair to dismiss the appeal without first notifying Monk Lakes, through the liquidators, and seeking their confirmation as to whether or not they wished to proceed with the appeal.

Lang J allowed these three grounds and said the inspector could and should have addressed the lawfulness of the appeal by dismissal for want of prosecution procedure in section 79(6A) TCPA 1990.

This provides that if an appellant is responsible for undue delay in an appeal, the Secretary of State may give notice that the appeal will be dismissed unless the appellant takes steps to expedite the appeal.

She rejected though a related argument that Monk Lakes through its liquidators, lawfully assigned the cause of action in the appeal to Taytime.

Lang J concluded that on a proper interpretation of section 78(1) TCPA 1990, “it is clear that only the applicant for planning permission may appeal against a refusal of planning permission.

"There is no ability for a third party to pursue an appeal under [this] section. Therefore, no power to assign can be derived from the wording of section 78 or any other provision in the TCPA 1990.”

She dismissed though an argument that the inspector erred in law in concluding that Taytime was not acting as Monk Lake's agent and failed to give adequate reasons for his conclusion that Taytime was not acting as an agent for Monk Lakes, or that "it is now Taytime pursuing the appeal, as the appellant and not as an agent”.

The judge said it was clear Taytime and its shareholder had been aware of the inspector’s reasons, which had been adequately explained.

Mark Smulian