The principles surrounding the ability of a company in liquidation to pursue or assign its right of appeal from a planning application in England have recently been reaffirmed. What considerations are relevant to a planning application if the applicant company is in a voluntary liquidation?

Right to Appeal

Under section 78 of the Town and Country Planning Act 1990, only the applicant for planning permission has the right to appeal against a refusal, non-determination, or approval with unwanted conditions.

Liquidators

The authorised insolvency practitioner or official receiver appointed to manage the winding-up of a company must exercise commercial judgment while adhering to their statutory obligations. They have the discretion to decide whether to pursue a planning appeal, but they ought to bear in mind that this is a right that may only be exercised in the name of the company.

The Planning Court has recently reaffirmed in Taytime Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 1053 (Admin)  that a right to appeal under section 78 TCPA cannot be assigned, as if it were a cause of action. The case cited B. Johnson & Co (Builders) v Minister of Health [1947] and Mead Realisations v Secretary of State for Levelling Up, Housing and Communities [2024].

Changing the applicant

If a company in liquidation would like to change the identity of an applicant for an ongoing planning application this too may present difficulties. Section 327A TCPA requires strict compliance with application procedures i.e. the starting point is that local planning authority must refuse non-compliant applications. This means that changes to those details, not least the identity of the applicant for planning permission, may prompt the authority to require a reboot of the application process from scratch – including a new fee. Authorities taking a more practical approach may offer some flexibility depending on the extent of change and the stage at which the application has reached.

Practical Implications

Liquidators must carefully consider whether to pursue planning appeals, balancing commercial judgment with statutory duties. That may require reviewing the prospects of success. The inability to assign appeal rights means liquidators cannot transfer this responsibility to another party.

Changing the applicant on a planning application may present difficulties. If changing the name of the applicant is not possible because of the stage at which the application has reached, it may be a case of determining the value in awaiting a determination or pursuing an appeal. That also involves a realistic reassessment of ongoing costs and prospects. An alternative approach may be to consider the scope for a transfer of rights in the application materials and supporting documents prepared or submitted in support of the planning application to a willing buyer.

Other regulatory regimes

Any business or project making a planning application or appeal is likely operating subject to other regulatory schemes that enjoy or require associated consents for the use of existing or proposed development. Consideration should be given to how environmental permits or other regulatory licenses, consents and constraints, which are part and parcel of the business, are to be managed, transferred or surrendered.

Navigation of the intersection of planning and environmental laws and company liquidation requires a thorough understanding of the relevant legal principles. Liquidators must exercise careful judgment, and any changes to planning applications must comply with stringent procedural requirements.

Need advice?

Matt Gilks is a Partner in the Planning & Environment team at Lester Aldridge, an independently ranked, six-strong team advising national and regional developers on all legal aspects of planning. Matt is an experienced planning and environment solicitor, specialising in applications, appeals, judicial reviews, and transactional work. Contact Matt or any of the team at online.enquiries@LA-law.com.