Enforcement notice – Appeal – Jurisdiction – High Court refusing claimants permission to appeal under section 289 of the Town and Country Planning Act 1990 – Claimants applying to Court of Appeal for permission to appeal – Whether Court of Appeal having jurisdiction to deal with application – Application dismissed The claimants had issued enforcement notices in relation to the erection and installation of certain antennae and ancillary equipment by the interested parties. The claimants in each case had determined that the developments required prior approval before they could be erected. However, the planning inspectors in each case decided that there had been no relevant notification to either of the interested parties within the stipulated 56-day period so that planning permission for the relevant developments had effectively been granted. In the first case, the inspector had decided, on the facts, that the claimants had posted a notice of its decision by second class post and published it on its website the following day within the 56-day stipulated period but the inspector found that such notice was not received by interested parties. In the second case, the inspector had reached no firm conclusion as to whether the notification had been posted or not but the inspector had held that no notification of the determination had been received within the 56-day period. The High Court refused applications by the claimants for permission to appeal to the High Court pursuant to section 289 of the Town and Country Planning Act 1990: [2012] EWHC 1756 (Admin)). The authorities sought permission to appeal against that decision. The Court of Appeal was asked to determine the preliminary issue of jurisdiction. In the case of Wendy Fair Markets Ltd v Secretary of State for the Environment (1995) 159 LG Rev 769, the Court of Appeal had ruled that it did not have jurisdiction to hear an appeal against the refusal of leave as a result of the principle in Lane v Esdaile [1891] AC 210, that refusal of leave to appeal was neither an “order”, nor “judgment” within section 16 of the Senior Courts Act 1981, so that there was no statutory basis for the Court of Appeal’s jurisdiction. Further, the rule in Lane v Esdaile was intended to deter frivolous and unmeritorious appeals by persons seeking to gain an extension of time during which they could continue to carry out the act prohibited by the enforcement notice and should be upheld on policy grounds. The claimants contended, inter alia, that the court was not bound by the decision in Wendy Fair since the introduction of section 289(4A) of the 1990 Act had addressed the problem of groundless appeals by allowing an enforcement notice to continue until determination of the appeal process. Held: The application was dismissed. The Court of Appeal had no jurisdiction to entertain an application for permission to appeal against the refusal of leave to appeal by a High Court judge under section 289(6) of the Town and Country Planning Act 1990 against the decision of an planning inspector in an appeal against an enforcement notice under section 174 of the 1990 Act. The court was bound by the decision in Wendy Fair Markets Ltd and was not persuaded that the policy reasons applied in that case had any less force in the present circumstances. The failure of the Court of Appeal in Wendy Fair to consider section 289(4A) was not surprising since section 289(4A) did not provide a complete answer to the problem of unmeritorious and frivolous appeals, not least because section 289(4A) might require a local planning authority to give an undertaking in damages. Although s 289(4A) (as inserted by the Planning and Compensation Act 1991) had addressed the problem of abusive appeals, it was clear that when Parliament enacted the 1991 Act, it had not considered it to be a sufficient answer to the problem. Accordingly, it had introduced the further provision that leave was required for proceedings in the High Court. Although the Civil Procedure Rules had made many significant procedural changes, they had not reduced the need for the further mechanism introduced by section 289(6). Other courts had recognised exceptions to the principle, that a refusal of leave to appeal could not itself be appealed, only where the court had recognised a “residual jurisdiction” to deal with unfairness, misconduct or mischance. The rule in Lane v Esdaile had been repeatedly upheld and neither unfairness nor misconduct had been alleged in the present case. Furthermore, the court was satisfied that the appeal process under section 289, considered as a whole, complied with article 6 of the European Convention on Human Rights. Although consideration by an inspector did not of itself comply with that article, an inspector was required to act judicially and the possibility of applying for leave to a High Court judge provided a sufficient measure of judicial control to ensure fairness. Philip Coppel QC and Anthony Cox (instructed by Walsall Metropolitan Borough Council Legal Department) appeared for the first claimants; Estelle Dehon (instructed by Sharpe Pritchard) appeared for the second claimants; James Strachan (instructed by the Treasury Solicitor) appeared for the defendant; Mark Lowe QC and Jack Parker (instructed by Wragge and Co LLP) appeared for the first interested party; Christopher Boyle and Emma Harling-Phillips (instructed by Lawrence Graham) appeared for the second interested party. Eileen O’Grady, barrister
Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government and others; Dartford Borough Council v Secretary of State for Communities and Local Government and others
Enforcement notice – Appeal – Jurisdiction – High Court refusing claimants permission to appeal under section 289 of the Town and Country Planning Act 1990 – Claimants applying to Court of Appeal for permission to appeal – Whether Court of Appeal having jurisdiction to deal with application – Application dismissed The claimants had issued enforcement notices in relation to the erection and installation of certain antennae and ancillary equipment by the interested parties. The claimants in each case had determined that the developments required prior approval before they could be erected. However, the planning inspectors in each case decided that there had been no relevant notification to either of the interested parties within the stipulated 56-day period so that planning permission for the relevant developments had effectively been granted. In the first case, the inspector had decided, on the facts, that the claimants had posted a notice of its decision by second class post and published it on its website the following day within the 56-day stipulated period but the inspector found that such notice was not received by interested parties. In the second case, the inspector had reached no firm conclusion as to whether the notification had been posted or not but the inspector had held that no notification of the determination had been received within the 56-day period. The High Court refused applications by the claimants for permission to appeal to the High Court pursuant to section 289 of the Town and Country Planning Act 1990: [2012] EWHC 1756 (Admin)). The authorities sought permission to appeal against that decision. The Court of Appeal was asked to determine the preliminary issue of jurisdiction. In the case of Wendy Fair Markets Ltd v Secretary of State for the Environment (1995) 159 LG Rev 769, the Court of Appeal had ruled that it did not have jurisdiction to hear an appeal against the refusal of leave as a result of the principle in Lane v Esdaile [1891] AC 210, that refusal of leave to appeal was neither an “order”, nor “judgment” within section 16 of the Senior Courts Act 1981, so that there was no statutory basis for the Court of Appeal’s jurisdiction. Further, the rule in Lane v Esdaile was intended to deter frivolous and unmeritorious appeals by persons seeking to gain an extension of time during which they could continue to carry out the act prohibited by the enforcement notice and should be upheld on policy grounds. The claimants contended, inter alia, that the court was not bound by the decision in Wendy Fair since the introduction of section 289(4A) of the 1990 Act had addressed the problem of groundless appeals by allowing an enforcement notice to continue until determination of the appeal process. Held: The application was dismissed. The Court of Appeal had no jurisdiction to entertain an application for permission to appeal against the refusal of leave to appeal by a High Court judge under section 289(6) of the Town and Country Planning Act 1990 against the decision of an planning inspector in an appeal against an enforcement notice under section 174 of the 1990 Act. The court was bound by the decision in Wendy Fair Markets Ltd and was not persuaded that the policy reasons applied in that case had any less force in the present circumstances. The failure of the Court of Appeal in Wendy Fair to consider section 289(4A) was not surprising since section 289(4A) did not provide a complete answer to the problem of unmeritorious and frivolous appeals, not least because section 289(4A) might require a local planning authority to give an undertaking in damages. Although s 289(4A) (as inserted by the Planning and Compensation Act 1991) had addressed the problem of abusive appeals, it was clear that when Parliament enacted the 1991 Act, it had not considered it to be a sufficient answer to the problem. Accordingly, it had introduced the further provision that leave was required for proceedings in the High Court. Although the Civil Procedure Rules had made many significant procedural changes, they had not reduced the need for the further mechanism introduced by section 289(6). Other courts had recognised exceptions to the principle, that a refusal of leave to appeal could not itself be appealed, only where the court had recognised a “residual jurisdiction” to deal with unfairness, misconduct or mischance. The rule in Lane v Esdaile had been repeatedly upheld and neither unfairness nor misconduct had been alleged in the present case. Furthermore, the court was satisfied that the appeal process under section 289, considered as a whole, complied with article 6 of the European Convention on Human Rights. Although consideration by an inspector did not of itself comply with that article, an inspector was required to act judicially and the possibility of applying for leave to a High Court judge provided a sufficient measure of judicial control to ensure fairness. Philip Coppel QC and Anthony Cox (instructed by Walsall Metropolitan Borough Council Legal Department) appeared for the first claimants; Estelle Dehon (instructed by Sharpe Pritchard) appeared for the second claimants; James Strachan (instructed by the Treasury Solicitor) appeared for the defendant; Mark Lowe QC and Jack Parker (instructed by Wragge and Co LLP) appeared for the first interested party; Christopher Boyle and Emma Harling-Phillips (instructed by Lawrence Graham) appeared for the second interested party. Eileen O’Grady, barrister
