Taytime Limited as the appointed Agent for and on behalf of Monks Lakes Limited v Secretary of State for Levelling Up Housing and Communities & Ors

Authority to bring a statutory planning challenge must be established by reference to the instrument conferring it. Where that authority arises from a deed, the deed is construed narrowly and authority to conduct a planning appeal does not necessarily extend to a subsequent statutory review.

At the permission stage, a challenge is arguable if agency or insolvency issues could make an inspector’s conclusion legally erroneous, even where those issues have not been fully explored. A legitimate expectation requires a clear, unambiguous and unqualified promise. An indication that an appeal will continue does not create a legitimate expectation that it will continue if the appeal is invalid.

The Secretary of State’s Inspector dismissed a planning appeal concerning land at Marden, Kent. The original planning application and appeal named Monks Lakes Limited as applicant and appellant. After Monks Lakes Limited entered creditors’ voluntary liquidation, its liquidators wrote to the Planning Inspectorate appointing Taytime Limited to take over responsibility for the appeal. Taytime subsequently conducted the appeal.

The Inspector concluded that Taytime was pursuing the appeal as appellant rather than as Monks Lakes Limited’s agent, and dismissed the appeal as invalid. Taytime brought a statutory review, describing itself as appointed agent for Monks Lakes Limited. The issues were whether the proceedings were validly brought, whether the Inspector’s conclusion was arguably wrong in law, and whether a Planning Inspectorate letter created a legitimate expectation that the appeal would continue.

1. Validity and substitution. Taytime had not clearly established authority to bring the statutory review. The September 2021 letter referred to the planning appeal before the Inspector, while the deed defined the appeal as an appeal against the Council’s decision. Construed narrowly, that authority did not necessarily include a subsequent statutory review. Nevertheless, Taytime could arguably have brought the proceedings in its own right. The court therefore ordered substitution under CPR 3.3(4), without prejudice to the substantive grounds.
2. Ground 2. The Inspector had given adequate reasons for concluding that Taytime was pursuing the appeal as appellant rather than agent. The real issue was whether, as a matter of agency and insolvency law, Taytime remained Monks Lakes Limited’s agent. Difficult questions included the scope of a liquidator’s power to appoint agents and whether that power permitted delegation of matters requiring professional judgment, such as a planning appeal. Those issues had not been fully explored. At the permission stage it was sufficient that the challenge was arguable on those grounds. Permission was therefore granted on ground 2, with the argument to focus on agency and insolvency law.
3. Ground 3. The Planning Inspectorate’s statement that the Inspector would continue to determine the appeal was not a clear, unambiguous and unqualified promise. It indicated only that the appeal would continue for the time being. Any expectation could not be legitimate if the appeal was lawfully terminated because it was invalid. Ground 3 was therefore not arguable.
4. The claim was allowed only to the extent necessary to permit consideration of ground 2. Permission was refused on ground 3.

The judgment records that Lang J ordered the matter to an oral hearing and granted Mr Padden’s application to be joined as the third defendant. The present court then ordered substitution of Taytime as claimant and granted permission on ground 2 only.