Section 289 TCPA Appeals to the Court of Appeal Are Governed by the CPR 52.6 (First-Appeal) Permission Test

Case: Dharmeshkumar v Secretary of State for Housing, Communities and Local Government & Anor [2026] EWCA Civ 247

Court: England and Wales Court of Appeal (Civil Division)  |  Date: 10 March 2026

1. Introduction

This decision resolves a procedural question of real importance in planning enforcement litigation: when an appellant seeks permission to appeal to the Court of Appeal from a High Court decision under s.289 Town and Country Planning Act 1990 (“TCPA 1990”), is that Court of Appeal stage treated as a “first appeal” (CPR 52.6) or a “second appeal” (AJA 1999 s.55 / CPR 52.7)?

The appellant, Mr Amin Dharmeshkumar, owned a Wembley office building converted into twelve flats. The London Borough of Brent (“LBB”) served an enforcement notice alleging a material change of use without permission. A Planning Inspector dismissed the main enforcement appeal grounds, finding the scheme was not built in accordance with approvals and that amended permission had not been secured; a partial costs award was made in Mr Dharmeshkumar’s favour. Mr Dharmeshkumar appealed to the High Court under s.289 on points of law and lost. He then sought permission to appeal to the Court of Appeal under s.289(6).

The Court of Appeal (Lewison LJ having directed a preliminary hearing) addressed only the threshold test it must apply when deciding whether to grant permission to appeal to itself under s.289(6).

Key issue: Does the Court of Appeal apply the CPR 52.6 permission test (real prospect of success / other compelling reason) or the stricter CPR 52.7 “second appeals” test (real prospect + important point of principle or practice, or other compelling reason)?

2. Summary of the Judgment

The Court held that an application for permission to appeal to the Court of Appeal under s.289(6) TCPA 1990 is governed by CPR 52.6, not CPR 52.7. In consequence, the relevant permission test is the “first-appeal” test: permission may be granted where the appeal has a real prospect of success or there is some other compelling reason for the appeal to be heard.

The Court rejected the Secretary of State’s submissions that (i) CPR 52.7 applies even if AJA 1999 s.55 does not, or (ii) the Court should nonetheless adopt a “heightened scrutiny”/second-appeal approach by discretion (including by analogy with Cart).

Lady Justice Elisabeth Laing and the President of the Family Division agreed.

3. Analysis

3.1 Statutory and procedural architecture (why classification matters)

  • Planning enforcement “code”: Part VII TCPA 1990 provides for enforcement notices (ss.171A, 173, 174) and an appeal to the Secretary of State/Inspector (s.174), with the notice generally suspended pending “final determination” (s.175(4)).
  • Section 289 TCPA 1990: provides a point-of-law appeal to the High Court (with permission), and then a further appeal to the Court of Appeal (also with permission), expressly allowing permission to be granted by either the High Court or the Court of Appeal (s.289(6)).
  • AJA 1999 s.55 and CPR 52.7: constrain “second appeals” to the Court of Appeal where the High Court/County Court/Family Court has itself decided an appeal; permission is for the Court of Appeal alone and subject to a stricter test.

The practical stakes are clear: the “second appeal” filter is substantially tighter and would reduce the availability of Court of Appeal scrutiny in planning enforcement cases—unless Parliament has in fact imposed that tighter filter.

3.2 Precedents cited (and how they shaped the outcome)

(a) The implied-repeal and “specific v general” line of authority

  • Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited [2001] QB 388

    This was foundational for two propositions relied on in the present case:

    • Parliament’s express choices matter: where Parliament intended AJA 1999 to displace earlier appeal-permission provisions, it did so expressly (e.g. its treatment of s.375(2) Insolvency Act 1986), and did not generally do so by implication.
    • Resistance to implied repeal: particularly where the later measure is general (AJA 1999 s.55) and the earlier regime is specific (the earlier appeal-permission provision).

    In Dharmeshkumar, the Court treated Henry Boot as a strong indicator that s.289(6) survived AJA 1999 s.55 intact (including the High Court’s continuing power to grant permission to appeal to the Court of Appeal).

  • Smith International Inc v Specialised Petroleum Services Group Limited [2005] EWCA Civ 1357; [2006] 1 WLR 252

    This was the closest analogue. Like s.289(6), the patents provision considered in Smith allowed permission to appeal to the Court of Appeal to be granted by either the lower court or the Court of Appeal. The Court in Smith rejected the idea that AJA 1999 s.55 could operate “on top of” that scheme, because doing so would “cancel or render meaningless” the lower court’s expressly conferred power.

    Dharmeshkumar applied Smith as effectively determinative of the statutory relationship: AJA 1999 s.55 does not apply to s.289(6) appeals. Critically, the Court then drew the further consequence: because s.55’s two features (Court of Appeal-only permission, and the second-appeal test) are “bound up together”, the second-appeal test does not apply either.

  • H v Lord Advocate [2012] UKSC 24; [2013] 1 AC 413

    Cited for the “strong presumption against implied repeal” in modern drafting. It reinforced the Court’s unwillingness to infer that AJA 1999 silently displaced the particular, long-standing s.289(6) permission structure.

  • Miaris v Secretary of State for Communities and Local Government [2015] EWHC 2094 (Admin); [2015] 1 WLR 4333

    A careful High Court analysis reaching “essentially the same conclusions” on the relationship between s.289(6) and AJA 1999 s.55. The Court of Appeal treated it as confirmatory authority, strengthening the sense of a settled approach.

(b) The “integral stage” character of s.289 in enforcement appeals

  • R v Kuxhaus [1988] QB 631

    Held that an enforcement appeal under s.174 is not “finally determined” while s.289 proceedings are on foot. This supported the Court’s characterisation of Part VII plus s.289 as a “detailed, largely self-contained code”. That characterisation matters because it supports treating s.289(6) as a deliberately crafted exception to the general “second appeal” regime.

(c) Authorities raised by the Secretary of State: why they did not carry the day

  • Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17

    Relied on by the Secretary of State to argue for a broad reading of “second appeals”. The Court of Appeal rejected that reliance: Clark addressed s.55(1) (and the then CPR equivalent) together, not CPR in isolation; and later authority—especially Smith International Inc v Specialised Petroleum Services Group Limited—held that the broad language in Clark was “too broad” insofar as it implied s.55 could override unrepealed, inconsistent permission provisions.

  • E I Dupont de Nemours & Co. v S.T. Dupont [2003] EWCA Civ 1368; [2006] 1 WLR 2293

    Cited to show that CPR provisions are not simply ignored where a statute contains special rules. The Court accepted this in principle, but held it did not assist: CPR 52 does not give judges a free hand to select between CPR 52.6 and 52.7 based on “appropriateness”. CPR 52.6 applies unless CPR 52.7 (or other carve-outs) applies; and CPR 52.7 was held to track s.55 and the 2008 Order, not to expand beyond them.

  • R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663

    The Court distinguished Cart sharply. Cart was about restricting a judicial review “safety valve” (review of Upper Tribunal refusals of permission) to avoid disproportionate resource use where Parliament had excluded a statutory appeal. By contrast, s.289(6) is an express, adequate appellate remedy that Parliament chose to provide without importing an “important point of principle” requirement.

  • Cooke v Secretary Of State For Social Security [2001] EWCA Civ 734; [2002] 3 All ER 279

    Offered for the notion of “robustness” or caution in specialist regimes. The Court found it a poor analogue to planning: the planning regime has an established High Court specialist list (Planning Court) and appellate treatment more closely comparable to statutory review under s.288, where appeals are treated as “first appeals”.

(d) Planning-law context authorities

  • R (Walsall Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2013] EWCA Civ 370; [2013] JPL 1183

    Cited for the proposition that s.289 appeals are confined to points of law and “akin to judicial review” in terms of permissible grounds—important to the Court’s analogy with s.288 statutory review and rejection of a heightened second-appeal filter.

  • R (Leeds City Council) v First Secretary of State [2004] EWHC 2477 (Admin)

    Used to explain the remedial consequence of a successful s.289 appeal: the court remits for re-hearing/redetermination rather than substituting a planning decision, supporting the “public law/statutory review” character of the jurisdiction.

  • Binning Property Corporation Limited v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 250; [2019] J.P.L 844

    Cited for the proposition that permission to appeal to the High Court under s.289 may only be granted by the High Court—reinforcing that Parliament has drawn carefully calibrated permission rules within this specific scheme.

3.3 Legal reasoning (step-by-step)

  1. Start with the text: s.289(6) plainly allows permission to appeal to the Court of Appeal to be granted by either the High Court or the Court of Appeal.
  2. Recognise the conflict with AJA 1999 s.55: where s.55 applies, only the Court of Appeal can grant permission and the second-appeal filter applies.
  3. Apply Henry Boot and Smith: s.55 does not “superimpose” on, and does not impliedly repeal, specific unrepealed provisions like s.289(6). Parliament made express repeal choices in AJA 1999; s.289 was not among them.
  4. Consequential logic (“bound up together”): s.55’s Court-of-Appeal-only permission rule and its second-appeal test are inseparable features of the same legislative control mechanism. If s.55 does not apply, the second-appeal test does not apply via s.55 either.
  5. Reject “CPR-only” expansion: CPR 52.7 was held to replicate the s.55 / 2008 Order architecture; it cannot be used to impose a second-appeal test on a route that the statute treats differently—especially given CPR 52.1(4)’s subordination to “special provisions”.
  6. Reject discretionary “heightened scrutiny”: absent a demonstrated need (and in light of close analogy to s.288 statutory review and judicial review appeal routes), the Court declined to invent a bespoke higher permission threshold for s.289(6) cases.

3.4 Impact

  • Planning enforcement appeals: Appellants seeking to go from the High Court to the Court of Appeal under s.289(6) face the CPR 52.6 threshold, not the more stringent “important point of principle or practice” limb of CPR 52.7(a). This should marginally increase the availability of appellate scrutiny in fact-sensitive enforcement disputes where the alleged error of law is significant but not “systemic”.
  • Procedural clarity and reduced satellite litigation: The decision removes uncertainty generated by attempts to characterise s.289(6) as “second appeal” terrain merely because the High Court was acting in an appellate capacity.
  • Wider appellate-law significance: The judgment reinforces a general principle: where Parliament has left in place a specific permission-to-appeal scheme allowing permission from either tier, courts should be slow to import “second appeal” constraints via general provisions or procedural rules.
  • Ongoing role of High Court permission: Since the High Court can grant permission under s.289(6), the Court’s reasoning also avoids incoherence: it would be untenable for High Court permission to be governed by a different (lower) standard than the Court of Appeal when both are empowered to grant the same permission.

4. Complex Concepts Simplified

  • “First appeal” v “second appeal” tests:
    • CPR 52.6 (first-appeal test): permission if the appeal has a real prospect of success, or some other compelling reason to hear it.
    • CPR 52.7 (second-appeal test): permission only if the appeal has a real prospect of success and raises an important point of principle or practice, or there is some other compelling reason.
  • “Implied repeal”: the idea that a later Act silently overrides an earlier Act. Modern courts presume this does not happen unless Parliament’s intention is clear—especially where the earlier rule is specific and the later one is general.
  • Why s.289 looks like “judicial review”: although labelled an “appeal”, it is limited to errors of law, and a successful challenge typically results in remission for re-determination, not the court substituting its own planning decision.
  • “Self-contained code” in planning enforcement: Part VII TCPA 1990 plus s.289 sets out a coherent mini-system for enforcement notices and appeals, including how notices are suspended and how court proceedings interact with that suspension.

5. Conclusion

Dharmeshkumar establishes that permission to appeal to the Court of Appeal under s.289(6) TCPA 1990 is governed by CPR 52.6, not the “second appeals” restriction in CPR 52.7. The Court reached this conclusion by applying strong authority on the relationship between specific statutory appeal-permission schemes and the general second-appeal reforms in AJA 1999 s.55, rejecting attempts to reintroduce second-appeal stringency through procedural rules or discretionary “heightened scrutiny”.

The judgment therefore preserves Parliament’s chosen structure for planning enforcement appeals: a point-of-law challenge to the High Court (with permission) and a further appeal to the Court of Appeal (with permission), without an additional requirement that the case raise an “important point of principle or practice”.