Factual and Procedural Background
The applicants, two local authorities referred to as Company A and Company B, sought permission to appeal a High Court order dated 10 May 2012 made by Judge Eder. The order refused their applications for permission to appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act"). The appeals related to decisions by two planning inspectors who allowed appeals by the second and third respondents under section 174 of the 1990 Act, quashing enforcement notices issued by the two local planning authorities. The High Court judge had found the applications for permission to appeal not arguable. The applicants then sought to have the Court of Appeal determine whether it had jurisdiction to hear their applications for permission to appeal.
Legal Issues Presented
- Whether the Court of Appeal has jurisdiction to hear an appeal against a High Court judge's refusal of permission to appeal under section 289 of the Town and Country Planning Act 1990.
- Whether the decision in Wendy Fair Markets Limited v Secretary of State for the Environment [1995] 159 LGLR 769 remains binding and applicable.
- Whether the statutory appeal process under section 289 complies with Article 6 of the European Convention on Human Rights, particularly regarding the sufficiency of judicial control.
- Whether the applicants could invoke exceptions to the binding precedent under Young v Bristol Aeroplane Company Limited [1944] 1 KB 718 to depart from Wendy Fair.
Arguments of the Parties
Applicants' Arguments
- The refusal by the High Court judge to grant permission to appeal under section 289 constitutes a "judgment" or "order" for the purposes of section 16 of the Senior Courts Act 1981, thus permitting appeal to the Court of Appeal.
- The binding authority in Wendy Fair should be revisited due to developments such as the introduction of subsection (4A) of section 289 and the Civil Procedure Rules requiring permission to appeal from the High Court to the Court of Appeal.
- The policy reasons for the leave requirement in section 289(6) are less forceful now, given procedural safeguards and the ability of the Court of Appeal to filter unmeritorious appeals.
- Section 289(6) should be interpreted purposively to allow appeals against refusals of leave to appeal.
- The appeal process under section 289 may be incompatible with Article 6 of the European Convention on Human Rights, as it does not provide sufficient judicial control or a second judge to review refusals of permission to appeal.
Respondents' Arguments
- The decision in Wendy Fair remains binding and correctly holds that no appeal lies to the Court of Appeal against a High Court judge's refusal of leave to appeal under section 289.
- The legislative scheme deliberately distinguishes between appeals requiring leave and those that do not, reflecting Parliament's intention to restrict unmeritorious appeals.
- Subsection (4A) of section 289 is a partial but insufficient safeguard against abusive appeals, justifying the continued need for the leave requirement under subsection (6).
- The filter mechanism under section 289(6) is consistent with Article 6 and does not deprive the High Court of jurisdiction but regulates access to its procedures.
- Wendy Fair and subsequent authorities have not been shown to be per incuriam or otherwise undermined by subsequent legal developments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Wendy Fair Markets Limited v SSE [1995] 159 LGLR 769 |
Refusal of leave to appeal under section 289 does not constitute a judgment or order appealable to the Court of Appeal. |
Held binding and decisive on jurisdictional issue; refusal of permission to appeal under section 289 is final and not subject to appeal. |
| Young v Bristol Aeroplane Company Limited [1944] 1 KB 718 |
Sets out categories in which the Court of Appeal may depart from its own previous decisions. |
Applied to determine whether Wendy Fair could be revisited; court found no basis to depart from it. |
| Prashar v SSE [2001] EWCA Civ 1231 |
Followed Wendy Fair regarding no jurisdiction to hear appeals against refusals of leave under section 289(6). |
Confirmed continued application of Wendy Fair post-Civil Procedure Rules. |
| Lane v Esdaile (1891) AC 210 |
Establishes principle that decisions refusing leave to appeal are final and not appealable. |
Reaffirmed as foundational authority supporting Wendy Fair's reasoning. |
| R (on the Application of Burkett) v LB Hammersmith and Fulham [2002] UKHL 23 |
Clarifies that refusal of leave to appeal is generally final and conclusive. |
Distinguished as relating to judicial review context; did not undermine Wendy Fair. |
| R (Cart) v Upper Tribunal [2011] UKSC 28 |
Discusses judicial fallibility and the need for error correction in judicial review proceedings. |
Considered but held not to conflict with statutory appeal scheme under section 289. |
| Kemper Reinsurance Company v Minister of Finance [1998] UKPC 22 |
Addresses appeals against refusals of leave to apply for judicial review. |
Supports principle that such refusals are generally final; does not conflict with Wendy Fair. |
| Seal v United Kingdom [2012] 54 EHRR 6 |
Supports the principle that procedural filters requiring leave are compatible with Article 6. |
Applied to confirm that section 289(6) leave requirement does not breach Article 6. |
| R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23 |
Confirms sufficiency of judicial control in planning appeals to satisfy Article 6. |
Applied to conclude that section 289 provides adequate judicial control. |
Court's Reasoning and Analysis
The court began by examining the statutory scheme under the Town and Country Planning Act 1990, particularly sections 174, 175, 285, and 289, including amendments made by the Planning and Compensation Act 1991. The key issue was whether a refusal by a High Court judge to grant permission to appeal under section 289(6) constitutes a judgment or order appealable to the Court of Appeal under section 16 of the Senior Courts Act 1981.
The court relied heavily on the binding precedent set by Wendy Fair, which held that such refusals are not appealable. The court reviewed the rationale behind Wendy Fair, emphasizing the legislative intent to restrict unmeritorious appeals and to provide a final filter at the High Court level. It rejected the applicants' contention that the decision should be revisited, finding no compelling reason to depart from Wendy Fair under the categories established in Young v Bristol Aeroplane Company.
The court considered subsequent case law, including Prashar, Burkett, Cart, and Kemper, and found that none undermined Wendy Fair's core principle. The court distinguished between statutory appeals and judicial review proceedings, noting that the statutory appeal process under section 289 deliberately imposes a leave requirement, unlike judicial review applications.
The court also analyzed whether the statutory appeal process complies with Article 6 of the European Convention on Human Rights. It concluded that the process, including the leave requirement, affords sufficient judicial control and is therefore compliant. The filter mechanism preventing unarguable appeals is consistent with Article 6 jurisprudence, as supported by the European Court of Human Rights decision in Seal and the House of Lords decision in Alconbury.
In sum, the court found no jurisdiction to entertain an appeal against the High Court judge's refusal of permission to appeal under section 289, affirming the finality of such refusals and the legislative intent behind the procedural scheme.
Holding and Implications
Application for permission to appeal refused.
The Court of Appeal held that it does not have jurisdiction to hear appeals against a High Court judge's refusal of permission to appeal under section 289 of the Town and Country Planning Act 1990. The decision in Wendy Fair remains binding and authoritative. The statutory scheme, including the leave requirement, is consistent with Article 6 of the European Convention on Human Rights as it provides sufficient judicial control and a proper filter against unmeritorious appeals.
The direct effect is that the applicants' challenge to the refusal of permission to appeal is dismissed, and the enforcement notices remain quashed pursuant to the Inspectors' decisions. No new precedent was established; rather, the court reaffirmed established principles governing appeals under section 289 and the finality of leave refusals.