Factual and Procedural Background
On June 4th, 2015, the Judge dismissed the Appellant's appeal under section 289 of the Town and Country Planning Act 1990 against the decision of an Inspector appointed by the First Respondent, who had dismissed the Appellant's appeal against an enforcement notice. The Judge granted the Appellant permission to appeal against this decision to the Court of Appeal. Subsequently, on June 29th, 2015, the First Respondent's solicitor informed the Judge that the Appellant had filed an Appellant's Notice with the Court of Appeal. The solicitor also contended that a High Court Judge in another case had found no power to grant permission to appeal to the Court of Appeal under section 289, as it would constitute a "second appeal" for which only the Court of Appeal may grant permission. The Judge invited written submissions from the parties on whether the High Court has jurisdiction to grant such permission and whether it can set aside any order granting it. The Judge has considered the submissions and decided the matter without a hearing.
Legal Issues Presented
- Whether the High Court has jurisdiction to grant permission to appeal to the Court of Appeal against its judgment or order in proceedings under section 289 of the Town and Country Planning Act 1990.
- If the High Court lacks such jurisdiction, whether it has the power to set aside any order in which it granted permission to appeal.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Clark (Inspector of Taxes) v Perks and related applications [2001] 1 WLR 17 |
Interpretation of section 55(1) of the Access to Justice Act 1999 regarding appeals from tribunals and the nature of "second appeals". |
Supported the view that section 55(1) applies to appeals from tribunals but does not deprive the High Court of jurisdiction to grant permission to appeal under section 289 of the 1990 Act. |
| Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388 |
Examined implied repeal principles and the effect of section 55(1) of the 1999 Act on statutory provisions granting High Court permission to appeal. |
Held that specific statutory provisions (including section 289(6)) were not repealed by implication; thus, High Court retains power to grant permission to appeal. |
| Smith International Inc v Specialised Petroleum Services Group Ltd [2005] EWCA Civ 1357, [2006] 1 WLR 252 |
Considered effect of section 55(1) of the 1999 Act on section 97(3) of the Patents Act 1977 regarding permission to appeal. |
Confirmed High Court’s power to grant permission to appeal was not repealed by implication; reasoning applied analogously to section 289(6) of the 1990 Act. |
| H v Lord Advocate [2012] UKSC 24, [2013] 1 AC 413 |
Established a strong presumption against implied repeal of specific statutory provisions by later general legislation. |
Supported the conclusion that section 289(6) remains effective despite section 55(1) of the 1999 Act. |
| R (Connaught Quarries Limited) v Secretary of State for the Environment, Transport and Regions [2001] EWHC Admin 76 |
Discussed applicability of Civil Procedure Rules to statutory appeals under section 289 of the 1990 Act. |
Indicated uncertainty but did not conclusively restrict High Court's jurisdiction to grant permission to appeal. |
| Lane v Esdale [1891] 1 AC 210; in re Housing and Working Classes Act 1890 [1892] 1 QB 609 CA |
Rule that a party has no right to appeal against a grant of permission to appeal. |
Supported the position that the First Respondent has no right to appeal the permission granted to the Appellant. |
| Kemper Reinsurance Co v Minister of Finance and others [2001] 1 AC 1 |
Clarified principles regarding appeals and costs. |
Referenced in support of awarding costs against the First Respondent. |
| Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370, [2013] JPL 1183 |
Considered principles regarding appeals and permission to appeal. |
Supported the reasoning related to the finality of permission to appeal and costs. |
Court's Reasoning and Analysis
The court began by examining section 289(6) of the Town and Country Planning Act 1990, which provides that no appeal to the Court of Appeal shall be brought except with the leave of the Court of Appeal or the High Court. The court addressed the contention that section 55(1) of the Access to Justice Act 1999 and CPR 52.13 effectively removed the High Court's power to grant permission to appeal to the Court of Appeal in such cases.
The court analyzed the legislative framework and relevant case law, including the Henry Boot case and Smith International Inc, concluding that section 55(1) of the 1999 Act did not repeal or amend the specific provision in section 289(6) by implication. The court emphasized the strong presumption against implied repeal, reinforced by the Supreme Court's decision in H v Lord Advocate.
Regarding CPR 52.13, the court noted that while some practitioners and commentators have suggested it restricts the High Court's power, no authority was cited to support this. The court reasoned that the Civil Procedure Rules Committee lacks power to amend primary legislation, and CPR 52.13 expressly states it is subject to any enactment setting out special provisions for particular categories of appeal, such as section 289(6). Consequently, CPR 52.13 does not deprive the High Court of its statutory power.
The court further held that an order granting permission to appeal which the High Court lacks power to grant would be a nullity. However, since the court concluded that the High Court retains the power to grant permission under section 289(6), the permission previously granted would not be revoked.
Finally, the court addressed costs, finding that the First Respondent effectively made an application to vary the order by seeking to revoke permission, thereby causing the Appellant to incur costs. The court ordered the First Respondent to pay the Appellant's costs in the sum of 300 plus VAT.
Holding and Implications
The court's final decision is that the High Court retains jurisdiction and power to grant permission to appeal to the Court of Appeal under section 289(6) of the Town and Country Planning Act 1990. Accordingly, the court declined to revoke the permission to appeal previously granted to the Appellant.
The direct consequence is that the Appellant may proceed with the appeal to the Court of Appeal based on the permission granted. The First Respondent was ordered to pay the Appellant's costs related to this matter. No new precedent was established beyond reaffirming the continuing validity of the High Court's jurisdiction in this context.