Taytime v Maidstone Council
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 21 June 2023 |
| Neutral Citation | [2023] EWHC 1522 (Admin) |
| Docket Number | Case No: CO/4860/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1522 (Admin)
Sir Ross Cranston
Sitting as a High Court Judge
Case No: CO/4860/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Streeten & Chantelle Staynings (instructed by Assersons) for the Claimant
Ashley Bowes (instructed by GLD) for the First Defendant
James Maurici KC & Simon Jones (instructed by Richard Max & Co) for the Third Defendant
Hearing date: 13 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 21 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is both a decision on the validity of these proceedings and one on the claimant's application for permission to apply for statutory review under Section 288 Town and Country Planning Act 1999. It was ordered in for an oral hearing by Lang J, who also granted Mr Padden's application to be joined as the third defendant.
The Secretary of State's Inspector decided in November 2022 to dismiss an appeal in relation to land at Monks Lake, Staplehurst Road, Marden, Kent, which I will call “the land” in this judgment.
The issues are whether Taytime Ltd (“Taytime”) could advance the appeal before the Inspector – the Inspector said it could not since it was not acting as the appointed agent for Monk Lakes Ltd (MLL) – and whether in turn it can advance the current challenge before the Planning Court.
Background
The land is owned by Taytime. There is a long planning history associated with it. The original planning application in 2011 was made to Maidstone Borough Council (“the Council”) by MLL and by Mr & Mrs Harrison, who are the principals behind both Taytime and MLL. An aspect of the application for planning permission was before the Administrative Court in early 2014: R (Padden) v Maidstone BC [2014] EWHC 51 (Admin).
On 12 March 2020 the Council refused an application by Mr & Mrs Harrison for part retrospective and part prospective planning permission for the land. For the purposes of the EIA and ES the consultants were commissioned by Taytime. Taytime was named as the project managers.
There was an appeal. The planning appeal form for the Planning Inspectorate (“PINS”) dated 11 September 2020 named MLL as the appellant, with the agent named as the Pegasus Group. There was no reference to Taytime.
The following year, on 15 July 2021, MLL the members of MLL passed a resolution that it be wound up voluntarily. Duncan Beat and Andrew Watling of Quantuma Advisory Ltd were appointed liquidators.
On 22 September 2021 Mr Beat, wrote, as liquidator for MLL, to the Planning Inspectorate (“the September 2021 Letter”):
“I am writing to appoint Taytime Limited…to take over full responsibility for the above listed planning appeal. Taytime Limited owns the land to which the original planning application and subsequent appeal relates, and I am satisfied that it is best placed to manage that process from this point forward as Monk Lakes Ltd (In Liquidation) has no interest whatsoever in this land. The representatives of Taytime Limited believe that the application should have been placed in their name in the first place, they were the party that instructed Pegasus Planning and James Pereira of Francis Taylor Building Chambers for the submission of the appeal and they have an Asset Purchase Agreement in place for the rights to any planning permission, application or appeal associated with their land.”
The following week, on 27 September 2021, the liquidators entered into an indemnity agreement by means of deed between themselves on the one part and Taytime and its sole director on the second part (the “Deed”).
The Recitals state that the planning application was submitted in the name of MLL rather than Taytime in error. Recital E reads as follows:
(E) On the basis the planning application should have been in the name of Taytime and that Monk Lakes Limited had (and has never had) any interest therein, the Liquidators have agreed to permit Taytime to adopt the planning appeal against the decision 11/1948 provided that they are indemnified as to any costs expenses damages and adverse costs arising therefrom.
The Deed defined appeal as “an appeal against decision 11/1948” of the Council.
The operative parts of the Deed provided that the liquidators consented to Taytime having conduct of the appeal at its expense, and in consideration of that Taytime and the sole director indemnified them against any costs, expenses, damages, and claims.
In November 2021 PINS wrote in relation to the appeal before the Inspector that it had considered the status of MLL but that unless the appeal was withdrawn, or MLL was dissolved, “the Inspector will continue to determine the appeal”.
The parties prepared for the appeal. The Statement of Common Ground (SoCG), dated December 2021, was signed by Taytime, not MLL.
The Inspector's decision
Some twelve months later, in October 2022, the Inspector conducted a hearing and made a site visit. In his decision letter dated 21 November 2022 he determined that the planning appeal was not correctly made and thus not capable of being lawfully determined under section 78 of the Town and Country Planning Act (“the 1990 Act”). He reasoned:
a. Section 78 explicitly limits the right to appeal against planning decision to the ‘applicant’: DL [3];
b. The original planning application was made by MLL which had subsequently entered into liquidation proceedings. However MLL had not been dissolved and could, in principle pursue the appeal as the appellant: DL [4];
c. “It is now Taytime pursuing the appeal, as the appellant, and not as an agent” DL [5]. That paragraph reads in full:
“5. However, the liquidator, Quantuma, has submitted a letter, dated 22 September 2021, appointing a separate company, Taytime Ltd (Taytime), to take over full responsibility for the appeal. The letter also confirms that Pegasus Planning (the agents) and James Pereira KC (the legal representative) are instructed by Taytime, not MLL. It was also verbally confirmed at the hearing by some of the consultant team that they had been instructed by Taytime and not MLL. In addition, the Statement of Common Ground (SoCG), dated December 2021, has been signed by Taytime, not MLL. The appellant has offered to re-sign the SoCG this time by MLL, but this would not change the existing document, which is what has been submitted in support of the appeal. I do not view Taytime as an agent for MLL. The appointed agent is the Pegasus Group, as set out in the appeal form, and supporting documents. The combination of the Quantuma letter and the instruction of consultants by Taytime demonstrate that it is now Taytime pursuing the appeal, as the appellant, and not as an agent. Taytime could not be viewed as an agent for MLL. The appointed agent was the Pegasus Group, as set out in the appeal form and supporting documents.
d. MLL is listed as the appellant on the appeal form but this has now been overtaken by events. While the persons behind both MLL and Taytime (Mr and Mrs Harrison) were the same, the applicant was explicitly listed as MLL and Mr and Mrs Harrison were no longer empowered to act for MLL as a result of the insolvency proceedings DL [6];
e. For all...
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