TayTime Limited v Secretary of State for Levelling Up, Housing and Communities & Ors

On a statutory review of a planning appeal, the High Court exercises a limited supervisory jurisdiction. It may correct legal error, irrationality, failure to consider relevant matters or procedural unfairness, but it may not reconsider the planning merits or substitute its own decision.

Only the applicant for planning permission may appeal under section 78 of the Town and Country Planning Act 1990. Where the applicant remains extant but its agent is found not to be pursuing the appeal on its behalf, the appeal should not be dismissed outright without first determining whether the applicant, acting through its liquidators, intends to pursue or withdraw it. The statutory procedure for dismissal for undue delay may be used. A liquidator cannot wholly delegate control of company proceedings, and a section 78 planning appeal is not an assignable cause of action.

TayTime Limited challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s dismissal of a planning appeal. The appeal had been lodged by Monk Lakes Limited, which subsequently entered voluntary liquidation. The liquidators appointed TayTime to take full responsibility for the appeal. The inspector concluded that TayTime was pursuing the appeal as appellant rather than as agent, and dismissed it because TayTime was not the applicant.

The claim raised whether the appeal had been validly made, whether it was being lawfully pursued, whether section 79(6A) should have been used, whether the liquidators could assign the appeal, and whether the inspector had adequately reasoned his agency conclusion.

1. Outcome. The application under section 288 of the Town and Country Planning Act 1990 succeeded on Ground 2(i), save in relation to assignment. Ground 2(ii) was dismissed.
2. Scope of review. Section 288 provides a supervisory jurisdiction. The court considers legal error, irrationality, relevant considerations and procedural impropriety. It does not conduct a second appeal on the merits or substitute its own assessment for that of the inspector ([2024] EWHC 1053 (Admin), paras 47–54).
3. Section 78 appeal. Only the applicant for planning permission may appeal against refusal under section 78. Monk Lakes Limited had validly lodged the appeal and remained in existence. The inspector was entitled to find, on the evidence before him, that TayTime was acting on its own behalf rather than as Monk Lakes’ agent. The evidence included the liquidators’ appointment letter, TayTime’s control of the appeal documents and its direct financial interest in the Site (paras 93–98, 135–142).
4. Error in dismissing the appeal. Having found that TayTime could not lawfully pursue the appeal as appellant, the inspector should have established whether Monk Lakes, acting through its liquidators, intended to pursue or withdraw it. Dismissing the appeal outright was premature and unfair. The inspector also conflated whether the appeal had been correctly made with whether it was being lawfully pursued. Section 79(6A) provided an appropriate procedure for addressing undue delay or failure to progress the appeal (paras 99–102).
5. Agency and insolvency. Agency requires authority to act on behalf of a principal and ordinarily involves the principal retaining control. A liquidator may delegate specific tasks, including litigation, but cannot wholly delegate statutory powers or surrender ultimate control. The liquidators’ letter amounted to an impermissible wholesale delegation, and TayTime was rationally found to be acting for itself (paras 62–72, 74–82, 135–142).
6. Assignment. The statutory right of appeal under section 78 was not a cause of action within section 436(1) of the Insolvency Act 1986 and could not be assigned to TayTime. The decision in Muorah concerned a different right of appeal and did not establish otherwise (paras 103–111).
7. Reasons. The inspector’s reasons were brief but intelligible and adequate. They enabled the parties to understand the conclusion and disclosed no substantial prejudice. Ground 2(ii) therefore failed (paras 143–145).

This was a first-instance statutory review under section 288 of the Town and Country Planning Act 1990. The challenged inspector’s decision dated 21 November 2022 dismissed the section 78 planning appeal. Permission was granted on limited grounds by orders of Sir Ross Cranston and Stuart-Smith LJ.