- Bookmark
- Share
- CaseIQ
Dharmeshkumar v Secretary of State for Housing, Communities and Local Government & Anor
Factual and Procedural Background
The Appellant owned a building in The City formerly used as offices and obtained planning approvals from the Local Authority to convert it to residential use. Works began in November 2019, amendments were sought from the Local Authority which were refused or not determined, and the conversion to twelve flats was completed and occupied on 19 April 2023. On 7 August 2023 the Local Authority served an enforcement notice alleging a material change of use to twelve flats without necessary planning permission. The Appellant appealed the enforcement notice to the Respondent (Government Department) on multiple grounds. A Planning Inspector heard the appeal in April 2024 and, by decision dated 2 October 2024, dismissed the main grounds of appeal and in a separate decision made a partial award of costs in the Appellant's favour against the Local Authority.
The Appellant obtained permission under s.289(6) of the Town and Country Planning Act 1990 to appeal to the High Court against the Inspector's decisions (both the enforcement appeal decision and the costs decision). On 3 October 2025 Judge Smith (sitting as a Deputy High Court Judge) dismissed both appeals. The Appellant applied for permission to appeal to the Court of Appeal but did not ask Judge Smith to grant permission; the Appellant sought permission from the Court of Appeal. On 10 December 2025 Judge Lewison adjourned the Appellant's application for permission to an oral hearing for the sole determination of a preliminary issue: whether an appeal to the Court of Appeal under s.289(6) is a "first appeal" or a "second appeal" for the purposes of s.55 of the Access to Justice Act 1999 and CPR 52.6/52.7. He directed that, once determined, the permission application should be decided on the papers by a single Lord or Lady Justice.
Legal Issues Presented
- Whether an appeal to the Court of Appeal from a High Court decision under s.289(6) of the Town and Country Planning Act 1990 is a "first appeal" or a "second appeal" for the purposes of s.55 of the Access to Justice Act 1999 and CPR 52.6 and 52.7.
- Relatedly, which test — the CPR 52.6 ("first appeals" test) or CPR 52.7 ("second appeals" test) — should be applied by the High Court or Court of Appeal when deciding whether to grant permission to appeal to the Court of Appeal under s.289(6).
Arguments of the Parties
Appellant's Arguments
- The Court of Appeal should apply the CPR 52.6 test (real prospect of success or other compelling reason) to permission applications under s.289(6).
- Section 289(6) is a specific statutory provision allowing permission to be granted by either the High Court or the Court of Appeal; s.55 of the AJA 1999, a general provision, did not impliedly repeal that specific provision.
- It would be absurd for the Court of Appeal to apply a stricter test than the High Court when both courts can grant permission under s.289(6).
- Authorities including Smith and Henry Boot support treating such specialist statutory routes as not subsumed by the general second-appeal regime in s.55.
Respondent (Government Department)'s Arguments
- Accepts the High Court retains jurisdiction to grant permission under s.289(6) but submits the Court of Appeal should apply the stricter "second appeals" test (CPR 52.7) or at least apply "heightened scrutiny" when deciding whether to grant permission.
- Alternate submissions: (a) CPR 52.7 should apply to such appeals to the Court of Appeal even though the High Court can also grant permission; or (b) the Court of Appeal has a discretion to adopt an appropriate (stricter) test (relying on Cart and Cooke analogies).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Case A: R (Walsall Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2013] EWCA Civ 370; [2013] JPL 1183 | That an appeal to the High Court under s.289 is confined to points of law and akin to judicial/statutory review. | Cited to show s.289 appeals are limited to errors of law and similar in character to s.288/statutory review. |
| Case B: R (Leeds City Council) v First Secretary of State [2004] EWHC 2477 (Admin) | That a successful s.289 appeal results in remittal to the Secretary of State for re-hearing; the High Court does not remake the decision. | Used to explain remedy and remittal under s.289(5). |
| Case C: R v Kuxhaus [1988] QB 631 | That an appeal under s.174 is not finally determined while s.289 proceedings are pending; s.289 is an integral part/stage of s.174 appeal. | Explains relationship between s.174 and s.289 and the potential suspensive effect. |
| Case D: Binning Property Corporation Limited v Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 250; [2019] J.P.L 844 | Authority on permission to appeal to the High Court under s.289 being granted only by that court. | Relied upon for the proposition that permission to the High Court is a matter for that court. |
| Case E: Smith International Inc v Specialised Petroleum Services Group Limited [2005] EWCA Civ 1357; [2006] 1 WLR 252 | Considered relationship between a specific statutory permission provision and s.55(1); rejected implied repeal by s.55 where Parliament left specific provisions intact. | Applied as precedent that s.55 does not impliedly repeal specific permission provisions like s.289(6). |
| Case F: Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited [2001] QB 388 | On implied repeal and finality of permission refusals under a specific statute (Arbitration Act s.69(8)); held AJA 1999 had not impliedly repealed s.69(8). | Used to support the presumption against implied repeal and that specific routes survive s.55 unless expressly repealed. |
| Case G: Miaris v Secretary of State for Communities and Local Government [2015] EWHC 2094 (Admin); [2015] 1 WLR 4333 | Analysis concluding s.289(6) not displaced by s.55(1); reached similar conclusions to those in this opinion. | Noted as prior judicial analysis arriving at the same result. |
| Case H: Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 | Interpreted s.55(1) scope in earlier authority; language relied upon by Respondent but Court here explains its limits. | Distinguished and limited; not decisive for applying CPR 52.7 where Parliament left specific provisions intact. |
| Case I: E I Dupont de Nemours & Co. v S.T. Dupont [2003] EWCA Civ 1368; [2006] 1 WLR 2293 | Principle that CPR Part 52 is subject to special statutory provisions. | Cited to show Part 52 is subordinate to specific enactments like s.289(6). |
| Case J: R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663 | On adopting a higher threshold for permission in the context of the enhanced tribunal structure; Supreme Court applied a second-appeals style test in that context. | Considered by Respondent by analogy; Court rejected Cart as supporting a stricter test for s.289(6) appeals. |
| Case K: Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All ER 279 | Suggested a robust approach to the "real prospect of success" criterion in specialised tribunal appeals. | Considered by Respondent; Court held the analogy with s.289(6) was inapt and did not justify a stricter test. |
| Case L: Lane v Esdaile [1891] AC 210 | Historic principle on finality of certain interlocutory decisions referenced in discussion of Henry Boot. | Cited in support of points made in Henry Boot concerning finality and appealability. |
| Case M: H v Lord Advocate [2012] UKSC 24; [2013] 1 AC 413 | Presumption against implied repeal; later statute will not be treated as repealing earlier specific provision absent clear words. | relied upon to support the presumption against implied repeal of s.289(6) by the AJA 1999. |
Court's Reasoning and Analysis
The court analysed the statutory scheme: s.289(6) expressly permits permission to appeal to the Court of Appeal to be granted by either the High Court or the Court of Appeal. Section 55(1) of the AJA 1999 and CPR 52.7 impose a stricter "second appeals" regime in some contexts but operate as a general provision. The court identified two possible solutions to the tension between the specific s.289(6) provision and the general s.55(1): (i) read the provisions together so s.55 applies, or (ii) treat the specific provision as remaining in force absent clear repeal. The court applied the strong presumption against implied repeal and relied on authority (Henry Boot, Smith) that Parliament expressly repealed particular provisions where it intended s.55 to displace them. Because Parliament did not expressly repeal or amend s.289(6) in the AJA 1999, the presumption against implied repeal applies and s.289(6) continues to allow permission to be granted by either court. The court rejected the Respondent's arguments that CPR 52.7 or a bespoke heightened test should govern: CPR 52.7 mirrors s.55(1) and was not intended to sweep beyond the contexts where Parliament required the second-appeal test; CPR 52.1(4) makes Part 52 subject to special statutory provisions like s.289(6). The court also rejected analogies to Cart and Cooke as inapposite because the planning statutory scheme provides adequate remedies and s.289 appeals closely resemble s.288/statutory review appeals, which are treated as first appeals. Concluding analysis: where s.289(6) applies, the correct permission test is that in CPR 52.6.
Holding and Implications
Holding: The court held that the correct test to be applied by the High Court or the Court of Appeal when deciding whether to grant permission to bring an appeal to the Court of Appeal under s.289(6) of the Town and Country Planning Act 1990 is the test in CPR 52.6 (the "first appeals" test), not the CPR 52.7 "second appeals" test.
Implications: As a direct effect, either the High Court or the Court of Appeal may grant permission for a s.289(6) appeal and must apply the CPR 52.6 criteria (that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard). The opinion does not purport to set a broader precedent displacing s.55(1) where Parliament expressly intended it to apply; no additional wider implications were identified beyond the treatment of s.289(6) appeals.
Alert