Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government & Anor

Factual and Procedural Background

The applicant, Company A, appealed under section 174 of the Town and Country Planning Act 1990 against two enforcement notices issued by Company B alleging breaches of planning control on land owned by Company A. An inspector appointed by the Secretary of State dismissed one appeal and allowed the other. Company A then sought to quash the inspector's decision on the dismissed appeal by appealing to the High Court under section 289. The High Court refused leave to appeal against the inspector's decision. Company A applied for permission to appeal to this court against the High Court's refusal. The Secretary of State contended that this court had no jurisdiction to hear the appeal. After an oral hearing, this court refused the application for permission to appeal for lack of jurisdiction and provided reasons in this judgment.

Legal Issues Presented

1. Whether this court has jurisdiction to hear an appeal against a High Court decision refusing leave to appeal under section 289(6) of the Town and Country Planning Act 1990.

Arguments of the Parties

Appellant's Arguments

• Significant procedural and legislative changes since prior decisions justify revisiting the established principle denying jurisdiction.
• The introduction of costs protection under the Aarhus Convention and amendments to sections 288 and 289 of the 1990 Act mean all such proceedings should be treated alike, removing any justification for the existing jurisdictional distinction.
• The absence of a leave filter in section 288 has been addressed, and thus the disparity between sections 288 and 289 no longer exists.
• The Court of Appeal should have jurisdiction to entertain appeals against refusals of leave in challenges under section 289.

Respondent's Arguments

• The longstanding principle that refusal of leave to appeal is final and not subject to further appeal remains firmly established and applicable.
• Previous authoritative decisions, including Wendy Fair Markets, Prashar, and Walsall Metropolitan Borough Council, support the absence of jurisdiction for such appeals.
• The statutory scheme and procedural rules have not been amended to confer a right of appeal against the High Court's refusal of leave under section 289(6).
• Policy reasons, including preventing abusive appeals and ensuring finality, justify maintaining the jurisdictional limitation.
• The procedural distinction between section 288 statutory reviews and section 289 appeals remains deliberate and significant.
• The residual discretion to overturn a refusal of leave is limited to cases involving misconduct or unfairness, which are not alleged here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the statutory framework governing appeals under the Town and Country Planning Act 1990, particularly section 289(6), which requires leave of the High Court to bring an appeal and explicitly limits appeals to the Court of Appeal without such leave. The court reviewed the established line of authority, including Wendy Fair Markets, Prashar, and Walsall Metropolitan Borough Council, which consistently held that the Court of Appeal lacks jurisdiction to hear appeals against the High Court's refusal of leave to appeal under section 289(6).

The court analyzed the appellant's arguments that legislative and procedural reforms, including amendments introducing leave requirements to section 288 and costs protections under the Aarhus Convention, justified revisiting the precedent. The court rejected these arguments, emphasizing that no statutory amendments have granted a right of appeal to the Court of Appeal against refusal of leave under section 289(6), and that the procedural distinctions between section 288 statutory reviews and section 289 appeals remain deliberate and significant.

Policy considerations were emphasized, including the need to prevent abusive and unmeritorious appeals that cause delay and uncertainty in enforcing planning control. The court noted that the residual jurisdiction to overturn a refusal of leave applies only in cases of procedural unfairness or misconduct, which were not alleged here.

Applying the principles from Young v Bristol Aeroplane, the court found no basis to depart from the established precedent, as there were no conflicting decisions, no higher authority overruling the principle, and no per incuriam finding. The court concluded that the appellant's proposed appeal fell squarely within the established rule denying jurisdiction.

Holding and Implications

DISPOSED OF

The court held that it has no jurisdiction to hear an appeal against the High Court's refusal of leave to appeal under section 289(6) of the Town and Country Planning Act 1990. The application for permission to appeal was therefore refused. The decision reaffirms the settled legal position and does not establish any new precedent. The direct effect is that the appellant cannot pursue an appeal in this court against the High Court's refusal of leave in this statutory context, maintaining finality and procedural efficiency in enforcement notice appeals.