Taytime Ltd v Secretary of State for Levelling Up, Housing and Communities

Hearing dates: 22 February and 19 March 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 7 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Claimant (“Taytime”) applies, under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), to quash the decision, dated 21 November 2022, made by an Inspector, appointed by the First Defendant (“the Secretary of State”), to dismiss an appeal against the refusal of planning permission by the Second Defendant (“the Council”) for development at Monks Lake, Staplehurst Road, Marden, Kent TN12 9BS (“the Site”).

The Third Defendant is a neighbouring landowner whose property has been adversely affected by development at the Site. He participated in the planning appeal as an Interested Person.

Upon an application by the Third Defendant, the Inspector decided that the appeal “was not correctly made and thus is not capable of being lawfully determined” under section 78 TCPA 1990 (Decision Letter/paragraph 9 (“DL/9”)).

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 Limited (“MLL”). Subsequently, on 15 July 2021, MLL filed for creditors voluntary liquidation and therefore it could not pursue the appeal on its own behalf. One of the Joint Liquidators (Mr Beat of Quantuma Advisory Ltd) wrote to the Planning Inspectorate (“PINS”) on 22 September 2021 (“the Liquidators' Letter”) stating it had appointed Taytime “to take over full responsibility for the above-listed planning appeal”. The Inspector concluded, on the evidence before him, that “it is now Taytime pursuing the appeal, as the appellant and not as an agent” which was impermissible.

On 28 December 2022, this claim for statutory review was filed by “Taytime Limited as the appointed agent for and on behalf of Monk Lakes Limited”.

The grounds of challenge are as follows:

i) Ground 2(i).

a) The Inspector's decision that the appeal was not properly made was plainly wrong as it was agreed that MLL validly made the appeal before liquidation proceedings began. MLL had not been dissolved and the appeal had not been withdrawn.

b) Therefore, if the Inspector was not satisfied that Taytime was validly acting as MLL's agent, the Inspector should have followed the statutory procedure in section 79(6A) TCPA 1990, for the dismissal of a planning appeal for want of prosecution. This would have given MLL, through its Liquidators, an opportunity to take steps to avoid the appeal being dismissed because it was not being pursued.

c) It was also procedurally unfair to dismiss the appeal without first notifying MLL, through the Liquidators, and seeking their confirmation as to whether or not they wished to proceed with the appeal.

d) In the alternative, MLL, through its Liquidators, lawfully assigned the cause of action in the appeal to Taytime.

ii) Ground 2(ii).

a) The Inspector erred in law in concluding that Taytime was not acting as MLL's agent. The Liquidators' Letter of 22 September 2021 validly appointed Taytime as agent, pursuant to its powers under paragraph 12, Part 111 of Schedule 4 to the Insolvency Act 1986 (“IA 1986”).

b) The Inspector failed to give adequate reasons for his conclusion that Taytime was not acting as an agent for MLL, or that “it is now Taytime pursuing the appeal, as the appellant and not as an agent”.

Permission was refused on Grounds 1 and 3.

On 24 January 2023, the Secretary of State and the Council filed their respective Acknowledgments of Service indicating that they did not intend to contest the claim. In the draft consent order later submitted to the Court, the Secretary of State accepted that the claim should be allowed on the second limb of Ground (2)(ii) only, namely, that the Inspector failed to supply adequate reasons for his conclusion that Taytime was not acting as the appointed agent for MLL, and so the decision should be quashed on that basis. The Council adopted the same approach. At the oral permission hearing, the Secretary of State's counsel also conceded that, even if the Inspector correctly concluded that Taytime was not acting as MLL's agent, he failed to supply adequate reasons for dismissing the appeal when MLL remained an active company and the appeal had not been withdrawn.

The Third Defendant was granted permission to be joined as a party in the proceedings by my order dated 24 March 2023. Following an oral permission hearing, Sir Ross Cranston (sitting as a Judge of the High Court) granted permission on Ground 2(ii) only. He refused permission on all other grounds. Sir Ross Cranston also substituted “Taytime Limited” as the Claimant, in place of MLL pursuant to CPR 3.3(4), without prejudice to the issues in the claim (paragraph 26 of Sir Ross Cranston's judgment).

Taytime appealed against the partial refusal of permission. In an order dated 13 November 2023, Stuart-Smith LJ granted permission to Taytime to rely upon Ground 2(i) as advanced in the Statement of Facts and Grounds at [29]–[32]. The Order also stated “This permission to advance and rely upon Ground 2(i) is limited to reliance upon the facts and reasons advanced in support of that ground (i) in the SFG and/or (ii) at the hearing before Sir Ross Cranston….”.

Pursuant to an order of the Court dated 13 December 2023, Taytime filed a “Replacement Statement of Facts and Grounds' on 22 December 2023. The Third Defendant filed Detailed Grounds of Resistance on 19 January 2024.

Factual background

Since 2008, four companies have been concerned with the Site and/or the recreational fishing business. The owner of the Site is Taytime. The operator of the business was MLL until it went into liquidation. Since then, the business has been operated by another company, called Monk Lakes Fishery Limited. The owner of the business is Merrymove Limited (“Merrymove”).

Mr Harrison has had a controlling interest, as shareholder, in all the companies. Mrs Harrison has been a Director of three of the companies and has been actively involved in the management of the business, on behalf of the companies.

Taytime. The Site was purchased in 2008 in the name of Taytime. Taytime holds an asset purchase agreement for the rights to any planning permission, application or appeal associated with the Site. According to its last published accounts, it holds net assets worth £15,020. The sole director of Taytime is Mr W. Kinsey-Jones who manages the fishery business. He is paid £275 per week by Taytime. Mr Harrison is the sole shareholder in Taytime and so has a controlling interest.

Mrs Harrison states in her first witness statement, at paragraphs 3 and 4:

“3. I also handle Taytime Limited's …. business administration and finance, and have also been dealing with all planning issues.

4. At all relevant times I have conducted the planning process on behalf of MLL and Taytime.”

I was informed at the hearing that Mrs Harrison is not an employee of Taytime, and that she performs these functions as its agent.

MLL. It appears that Mr Harrison (and possibly Mrs Harrison) purchased MLL from the previous owners. Mr Harrison was a director of MLL until it went into voluntary liquidation on 15 July 2021. On MLL's notice of special resolution, dated 16 July 2021, Mr Harrison is described as the Chair of Board of Directors. Mrs Harrison was a director of MLL from 2008 to 2009. MLL is owned by its parent company, Merrymove. Mrs Harrison states that, at all relevant times, she conducted the planning process on behalf of MLL.

Monk Lakes Fishery Limited is owned by its parent company, Merrymove. Mrs Harrison is the sole director. According to its 2022 accounts, it has assets of £65,504. It purchased MLL's assets on 27 July 2021 and now operates the business.

Merrymove Limited is the parent company and shareholder of MLL and Monks Lakes Fishery Limited. According to its last published accounts, it has assets of £12,118. Mrs Harrison is the sole director of Merrymove. Mr Harrison is the sole shareholder in Merrymove.

In R(Padden) v Maidstone BC v Guy Harrison, Emily Harrison, Monk Lakes Limited and Taytime Limited [2014] EWHC 51 (Admin), HH Judge Mackie KC, sitting as a Judge of the High Court, summarised the history as follows:

“3. On 17 September 2003 planning permission was granted by the Council, on the application of the then owners Mr & Mrs Hughes, for development at what is now known as Monk Lakes for:

“Change of use of land and physical works to create an extension in the fish farm, to form an area for recreational fishing. The application involves the formation of ponds and lakes, the erection of a building and the formation of a car park, the existing access to Staplehurst Road is to be improved…”

4. The 2003 Permission was subject to various conditions including the submission for approval of various pre-commencement details. These details were not submitted for approval. Instead the then owners of the land commenced, what it is common ground between the Claimant and the Council, were unauthorised works at Monk Lakes to create additional recreational fishing lakes not in a form...