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

JurisdictionEngland & Wales
JudgeLord Justice Lindblom,Lady Justice Sharp
Judgment Date28 February 2019
Neutral Citation[2019] EWCA Civ 250
Docket NumberCase No: C1/2018/1297
CourtCourt of Appeal (Civil Division)
Date28 February 2019

[2019] EWCA Civ 250

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR NEIL CAMERON Q.C. (Sitting as a Deputy Judge of the High Court)

[2018] EWHC 2029 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Sharp

and

Lord Justice Lindblom

Case No: C1/2018/1297

Between:
Binning Property Corporation Ltd.
Applicant
and
Secretary of State for Housing, Communities and Local Government
Respondent

and

London Borough of Havering Council
Interested Party

Ms Celina Colquhoun (instructed by Addleshaw Goddard LLP) for the Applicant

Ms Victoria Hutton (instructed by the Government Legal Department) for the Respondent

The Interested Party did not appear and was not represented.

Hearing date: 18 December 2018

Judgment Approved by the court for handing down

(subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

Does this court have jurisdiction to hear an appeal against a decision of the High Court, under section 289(6) of the Town and Country Planning Act 1990, refusing leave to appeal against the dismissal by an inspector of an appeal against an enforcement notice? The question is not new. It has been considered by this court several times, and on each occasion the answer has been “No”. But here it arises again.

2

The applicant, Binning Property Corporation Ltd., had appealed under section 174 of the 1990 Act against two enforcement notices issued on 14 August 2017 by the interested party, the London Borough of Havering Council, alleging breaches of planning control on land at East Hall Lane, Wennington, near Rainham – in the first notice, the unauthorized storage of aggregates and containers, and in the second, the unauthorized display and sale of motor vehicles. The land is owned by Binning. The respondent, the Secretary of State for Housing, Communities and Local Government, appointed an inspector to determine Binning's appeals. In a decision letter dated 27 February 2018 the inspector dismissed the first appeal and allowed the second.

3

On 26 March 2018 Binning appealed to the High Court under section 289 of the 1990 Act, seeking an order to quash the inspector's decision on the first appeal. At a hearing on 24 May 2018, at which both Binning and the Secretary of State were represented by counsel, Mr Neil Cameron Q.C., sitting as a deputy judge of the High Court, refused leave to appeal against the inspector's decision. On 31 May 2018 Binning made an application for permission to appeal to this court against the judge's order. On 22 June 2018 the Secretary of State filed a statement of reasons under paragraph 19 of Practice Direction 52C, contending that the Court of Appeal had no jurisdiction to hear the appeal. On 6 August 2018 Binning filed a response, challenging the contention that the court lacked jurisdiction. On 19 September 2018 the Secretary of State filed further submissions. On 12 November 2018 I ordered that the matter be listed for an oral hearing – which took place on 18 December 2018.

4

At the hearing, having heard submissions on either side, we concluded that we had no jurisdiction to hear the application for permission to appeal against the judge's order, told the parties so, and refused the application without hearing argument on the merits. We said we would give our reasons later. In this judgment I explain why, in my view, previous relevant authority in this court remains good law, so that we were bound to refuse Binning's application for permission to appeal for lack of jurisdiction.

The issue before us

5

The issue we had to decide – in the light of previous authority on the same point – was whether this court has jurisdiction to hear the proposed appeal against the judge's order refusing leave to appeal to the High Court against the inspector's decision under section 289(6). As I said when I ordered an oral hearing, “[in] contending that this court has jurisdiction to hear the proposed appeal, [Binning] evidently seeks to challenge the well-established jurisprudence in Wendy Fair Markets Ltd. (Strandmill Ltd.) v Secretary of State for the Environment [1996] J.P.L. 649, [1995] 159 L.G.L.R. 769, 1995 WL 1082736, Prashar v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1231 and Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370 as “per incuriam” or redundant, and in any event to argue that the court may, and should, depart from it”.

Section 289 of the 1990 Act

6

The statutory scheme for the enforcement of planning control is in Part VII of the 1990 Act. A person who has an interest in land to which an enforcement notice relates may appeal against the notice to the Secretary of State under section 174(2). Under section 175(4), when an appeal has been made under section 174, “the enforcement notice shall subject to any order under section 289(4A) be of no effect pending the final determination or the withdrawal of the appeal”.

7

In Part XII of the 1990 Act, section 285(1) provides that “[the] validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought”. The provisions governing appeals against decisions of the Secretary of State, or his inspector, on appeals made to him under section 174 are in section 289, which provides:

“(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.

(3) At any stage of the proceedings on any such appeal as is mentioned in subsection (1), the Secretary of State may state any question of law arising in the course of the proceedings in the form of a special case for the decision of the High Court.

(4) A decision of the High Court on a case stated by virtue of subsection (3) shall be deemed to be a judgment of the court within the meaning of section 16 of the Senior Courts Act 1981 (jurisdiction of the Court of Appeal to hear and determine appeals from any judgment of the High Court).

(4A) In proceedings brought by virtue of this section in respect of an enforcement notice, the High Court or, as the case may be, the Court of Appeal may, on such terms if any as the Court thinks fit …, order that the notice shall have effect, or have effect to such extent as may be specified in the order, pending the final determination of those proceedings and any re-hearing and determination by the Secretary of State.

(5) In relation to any proceedings in the High Court or the Court of Appeal brought by virtue of this section the power to make rules of court shall include power to make rules –

(a) prescribing the powers of the High Court or the Court of Appeal with respect to the remitting of the matter with the opinion or direction of the court for re-hearing and determination by the Secretary of State …; and

(b) providing for the Secretary of State …, either generally or in such circumstances as may be prescribed by the rules, to be treated as a party to any such proceedings and to be entitled to appear and to be heard accordingly.

(5A) Rules of court may also provide for the High Court or, as the case may be, the Court of Appeal to give directions as to the exercise, until such proceedings in respect of an enforcement notice are finally concluded and any re-hearing and determination by the Secretary of State has taken place, of any other powers in respect of the matters to which such a notice relates.

(6) No proceedings in the High Court shall be brought by virtue of this section except with the leave of that Court and no appeal to the Court of Appeal shall be so brought except with the leave of the Court of Appeal or of the High Court.

(7) In this section “decision” includes a direction or order, and references to the giving of a decision shall be construed accordingly.”

The requirement in subsection (6) that the leave of the High Court be sought and obtained for an appeal under section 289 was an amendment proposed by Robert Carnwath Q.C., as he then was, in his report of February 1989, “Enforcing Planning Control”. It was introduced by section 6(5) of the Planning and Compensation Act 1991.

Section 16 of the Senior Courts Act 1981

8

Section 16(1) of the Senior Courts Act 1981 provides:

“(1) Subject as otherwise provided by this or any other Act …, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.”

Section 54 of the Access to Justice Act 1999

9

Section 54 of the Access to Justice Act 1999 provides:

“(1) Rules of court may provide that any right of appeal to –

(b) the High Court, or

(c) the Court of Appeal

may be exercised only with permission.

(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”

The relevant authorities

10

The Court of Appeal has considered the jurisdictional issue that arises here on at least the three previous occasions I have mentioned: in Wendy Fair Markets, in Prashar, and in Walsall Metropolitan Borough Council (see also the judgment of John Howell Q.C., sitting as a deputy judge of the High Court, in Miaris v Secretary of State for Communities and Local Government [2015] 1 W.L.R 4333, in particular at paragraphs 24 and 25). On all of those occasions this court's...

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