Stamios Miaris v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr John Howell |
| Judgment Date | 17 July 2015 |
| Neutral Citation | [2015] EWHC 2094 (Admin) |
| Docket Number | Case No: CO/1501/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2015 |
[2015] EWHC 2094 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC
Sitting as a Deputy High Court Judge
Case No: CO/1501/2014
Mr Jonathan Wills (instructed by Horsey Lightly Fynn) for the Appellant
Ms Estelle Dehon (instructed by The Treasury Solicitor) for the First Respondent
Hearing dates: 20 May 2015
Mr John Howell QC:
On June 4 th 2015 I dismissed the Appellant's appeal to this court under section 289 of the Town and Country Planning Act 1990 (" the 1990 Act") against the decision of an Inspector appointed by the First Respondent in which the Appellant's appeal against an enforcement notice had been dismissed: see [2015] EWHC 1564 (Admin). I granted the Appellant permission to appeal against my decision to the Court of Appeal.
On June 29 th 2015 the First Respondent's solicitor sent me an e-mail informing me that the Appellant had filed an Appellant's Notice with the Court of Appeal. She also informed me that in another recent case an (unnamed) High Court Judge had found in another (unspecified) case that he had no power to grant permission to appeal to the Court of Appeal against a decision under section 289 of the 1990 Act, as it would be a "second appeal" for which only the Court of Appeal may grant permission, and that the judge in that case had amended the order he had previously made to delete that part which granted permission to appeal following submissions from the parties. She apologised for the fact that this had not been drawn to my attention at the hearing at which I had granted the Appellant permission and at which the Respondent had been represented by counsel.
Although her message was put in an apologetic and courteous way, the First Respondent's solicitor was in effect contending that I had had no power to grant the Appellant permission to appeal to the Court of Appeal and that I should aside the permission I had granted. Rather than require the First Respondent to make an application by filing an application notice, in order to save costs and time, I invited the parties to make submissions in writing on whether (a) 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 1990 Act and (b) whether, if the High Court has no such jurisdiction, it has power to set aside any order in which it had granted it. I also indicated my provisional view on the first question and referred the parties to a decision of the Court of Appeal on which it was based so that (without prejudice to any other points or matters which they might wish to raise) they could address it in their submissions.
I have received and considered the submissions made by the parties. I do not consider that a hearing is necessary to deal with this matter or that it would be appropriate in all the circumstances.
Section 289(6) of the 1990 Act provides that:
"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." (Emphasis added)
It appears to be a widely held view that the power of the High Court to grant permission to appeal to the Court of Appeal under this sub-section no longer obtains given section 55(1) of the Access to Justice Act 1999 (" the 1990 Act") and CPR 52.13.
(i) the effect of section 55 of the Access to Justice Act 1999
Section 55(1) of the 1999 Act provides that:
"(1) Where an appeal is made to the county court, the family court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it."
As Brooke LJ stated in Clark (Inspector of Taxes) v Perks and related applications [2001] 1 WLR 17 at [13], section 55(1) applies to appeals inter alia "from any tribunal or other body or person". It is potentially capable, therefore, of applying when an appeal to the High Court was one from the Secretary of State. Lewis J has stated (extra-judicially) in Judicial Remedies in Public Law (2013) 5 th ed at [14–063, 14–064] that, under section 289 of the 1990 Act, "there may be a further appeal to the Court of Appeal but only with the permission of that Court", apparently on the basis that such an appeal is a "second appeal" for the purpose of section 55(1) of the 1999 Act.
In my judgment section 55(1) of the 1999 Act has not deprived the High Court of jurisdiction to grant permission to appeal to the Court of Appeal in proceedings under section 289 of the 1990 Act.
When section 55 was enacted, there were statutory provisions under which appeals could be made to the Court of Appeal only with the permission of the High Court or Court of Appeal. Schedule 15 to the 1999 Act contained a number of repeals consequential on the changes to the law made by that Act. One such repeal was the repeal of the provision in section 375(2) of the Insolvency Act 1986 permitting an appeal to the Court of Appeal from a decision of the High Court on an appeal from the county court or the registrar in bankruptcy "with the leave of the judge or Court of Appeal". As Waller LJ (with whom Swinton Thomas LJ agreed) stated in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388 ("the Henry Boot case") at p401c-d, "the effect of the repeal of the particular words is that section 55 would then appear to apply…[so that an] appeal to the Court of Appeal will lie only with permission of the Court of Appeal." Waller LJ added (at p401d-h) that:
"It seems that there are provisions similar to section 375(2) of the Insolvency Act 1986 with words similar to those now repealed in the following 10 other statutes:….[which included] section 97(3) of the Patents Act 1977 (the Patents Court being part of the Chancery Division of the High Court: see section 6 of the Supreme Court Act 1981); section 65(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990; [and] section 289(6) of the Town and Country Planning Act 1990…..Schedule 15 could have contained repeals of the words "the court or the Court of Appeal" in all those sections if it had been intended that section 55 would now cover second tier appeals in so far as they were appeals from the relevant tribunals under the above Acts to the court and from the court to the Court of Appeal. It is noteworthy that all those sections deal with circumstances where the first tier decision was of a tribunal or person, not a court. One answer may be that those sections have by implication been repealed, but the alternative is that the decision not to make the alteration was deliberate, and it was intended that section 55 should simply apply to second tier appeals where the first hearing was before a court."
In the Henry Boot case the Court of Appeal had to consider the effect of section 55(1) of the 1999 Act on section 69(8) of the Arbitration Act 1996 under which an appeal to the Court of Appeal was possible only with the permission of the High Court. That section had not been expressly repealed by the 1999 Act. Having considered the principles for determining if a provision has been repealed by implication, the Court of Appeal held that section 69(8) had not been repealed by implication. As Waller LJ gave four reasons for that conclusion (at p403a-b) including:
"(1) the indications are that Parliament did not intend that all second tier appeals would require the permission of the Court of Appeal in any event where the first tier was not a court but a tribunal; (2) where there was an intention to repeal a provision inconsistent with section 55 Parliament did so expressly; (3)…; (4) section 55 is a general provision not intended to affect section 69(8) of the Act of 1996 which gave individual treatment to appeals from arbitrators."
The last of these points reflects the general principle that, where the literal meaning of a general enactment covers the situation for which specific provision is made in an earlier enactment, it is presumed that the situation is intended to continue to be dealt with by the specific provision rather than the later general one and that the earlier specific provision is not to be treated as...
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Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government
...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 conclusion has been the same: that it has no jurisdictio......