Walsall Metropolitan Borough Council (1st Appellant) v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan:,Lord Justice Tomlinson:,Lord Justice Pill: |
| Judgment Date | 06 February 2013 |
| Neutral Citation | [2013] EWCA Civ 370 |
| Docket Number | CaseNo:C1/2012/1337(A)andC1/2012/1336(A) |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2013 |
[2013] EWCA Civ 370
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE EDER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Sullivan
Lord Justice Tomlinson
CaseNo:C1/2012/1337(A)andC1/2012/1336(A)
Mr Philip Coppel QC (instructed by Walsall MBC) appeared on behalf of the 1 stAppellant
Miss Estelle Dehon (instructed by Sharpe Pritchard) appeared on behalf of the 2 nd Appellant
Mr James Strachan (instructed by the Treasury Solicitor) appeared on behalf of the 1 stRespondent
Mr Mark Lowe QC and Mr Jack Parker and Miss Emma Harling-Phillips (instructed by Wragge & Co) appeared on behalf of the 2 nd Respondent
Mr Christopher Boyle (instructed by Lawrence Graham) appeared on behalf of the 3 rd Respondent
The applicants, Walsall Metropolitan Borough Council and Dartford Borough Council, seek permission to appeal against the order dated 10 May 2012 of Mr Justice Eder refusing their applications for permission to appeal to the High Court under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against decisions by two planning inspectors allowing appeals by the second and third respondents under section 174 of the 1990 Act and quashing enforcement notices issued by the two local planning authorities. Eder J heard the two applications for permission to appeal under section 289 together on 10 May, and his decision that both applications for permission to appeal were not arguable is contained in a judgment of the same date, [2012] EWHC 1756 (Admin). On consideration of the papers, I directed that the applications for permission to appeal should be listed for hearing on notice to the respondents to consider whether this court has jurisdiction to consider the applications.
The Legislative Scheme
A person having an interest in the land to which an enforcement notice relates may appeal to the Secretary of State against the notice on the grounds set out in section 174(2) of the 1990 Act. Section 175(4) provides that:
"Where an appeal is brought 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."
Section 174 is in part VII of the Act. Section 285(1) provides:
"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."
Section 289, so far as relevant, provides as follows:
"(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 (which may include terms requiring the local planning authority to give an undertaking as to damages or any other matter), 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.
[…]
(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."
Section 289 was amended by the Planning and Compensation Act 1991 ("the 1991 Act"). The amendments included the introduction of subsection (4A), and the substitution of a new subsection (6). As originally enacted, subsection (6) had provided that:
"No appeal to the Court of Appeal shall be brought by virtue of this section except with the leave of the High Court or the Court of Appeal."
The notes to section 289 in the Encyclopaedia of Planning Law and Practice explain that the new requirement in subsection (6) that an appeal to the High Court under section 289 might be brought only with the permission of the court was proposed by Robert Carnwath QC (as he then was) in his report Enforcing Planning Control (February 1989). Section 16(1) of the Senior Courts Act 1981 ("the 1981 Act") makes provision for appeals from the High Court to the Court of Appeal as follows:
"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."
Discussion
On behalf of Walsall, Mr Coppel QC, whose submissions were adopted by Ms Dehon on behalf of Dartford, submitted that, if the jurisdictional issue had not been answered by authority, it was plain that Eder J's decision refusing the applicants permission to appeal under section 289 was contained in an order of the High Court and his reasons for making that order were to be found in his judgment. Thus there was both a "judgment" and an "order" of the High Court for the purposes of section 16 of the 1981 Act, against which the applicants could appeal to this court. However, he recognised that the question whether a decision of a High Court judge refusing permission to appeal under section 289 was, for the purposes of section 16 of the 1981 Act, to be treated as a judgment or order of the High Court, against which an appeal would be made to the Court of Appeal, had been answered by this court in Wendy Fair Markets Limited v SSE [1995] 159 LGLR 769 ("Wendy Fair"). In Wendy Fair, the Court (Sir Thomas Bingham MR, Kennedy and Millett LJJ) rejected the applicant's submission that a High Court judge's decision refusing permission to appeal under section 289 fell within section 16 of the 1981 Act. The Master of the Rolls, with whom Kennedy and Millett LJJ agreed, said this at pages 771 to 772:
"The difficulty which faces her with that submission is that although, as Miss Ellis rightly observes, none of the reported cases have arisen in the planning field, there is a considerable body of authority which makes it plain that appeals against refusals of leave to appeal to the court below are not something which the higher court has jurisdiction to entertain. The relevant line of authority begins with Lane v Esdaile (1891) AC 210, continues through Ex Parte Stevenson (1892) 1 QB 609, embraces Bland v Chief Suppelentary Benefit Officer [1983] 1 WLR 262, and perhaps ends with Geogas SA v Tammo Gas Ltd [1991] 1 WLR 776. Those authorities make plain that a decision of this kind refusing leave to appeal to the court below does not give rise to an order or judgment of a kind which can be challenged in the court above. The matter was clearly put by Fry J in Ex parte Stevenson at p.611, where he said:
'The Judicature Act has given a general right of appeal to this court from judgments and orders of the High Court or any Judge or Judges thereof. The question is whether that provision applies to a refusal of leave to submit the question of compensation to a jury under this Act.'
He concluded that the sort of question which arises in this instance is not such as can give rise to jurisdiction to entertain an appeal by the superior court, and he described the object of the legislation at p.612 as being to make the grant or refusal of leave final. The same point was made by Sir John Donaldson MR in Bland v Chief Supplementary Benefit Officer at p.267 where, referring to s. 14 of the Social Security Act 1980, he said:
'… I would accept that in a sense the grant or refusal of leave to appeal to the Commissioner is a decision, just as in Ex parte Stevenson [1982] 1 QB, 609 it was accepted that the grant or refusal of leave to appeal was an order of the High Court, but it is not the kind of decision which, in my judgment, s.14 contemplate.'
Very much the same point was made by the House of Lords in the most recent case, which is Geogas.
Miss Ellis urged that a purposive approach is appropriate in considering the combined effect of s.16(1) and s.289(6). I agree with that, although I am bound to say that adopting a purposive approach is in my judgment fatal to her argument. All the cases have emphasized that the requirement of leave is intended to deter frivolous or unmeritorious appeals and that this object would be frustrated were the refusal of leave itself to be the subject of appeal. As Lord Jauncey observed in Geogas SA. v Tammo Gas Ltd at p.780H with reference to s.1 of the Arbitration Act 1979:
'No appeal lies to the Court of Appeal unless...
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