Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government – Town and country planning – Enforcement notice – Appeal – Appellant applying for permission to appeal against decision of High Court under section 289(6) of Town and Country Planning Act 1990 refusing leave to appeal against dismissal of appeal against enforcement notice – Whether Court of Appeal having jurisdiction to hear appeal – Application dismissed
The appellant appealed under section 174 of the Town and Country Planning Act 1990 against two enforcement notices issued by the interested party local authority, alleging breaches of planning control on land owned by the appellant at East Hall Lane, Wennington, near Rainham: in the first notice, the unauthorised storage of aggregates and containers; in the second, the unauthorised display and sale of motor vehicles. An inspector appointed by the respondent secretary of state dismissed the first appeal and allowed the second.
The appellant 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. The court refused leave to appeal against the inspector’s decision. The appellant then applied to the Court of Appeal for permission to appeal but the respondent filed a statement of reasons under para 19 of Practice Direction 52C, contending that the Court of Appeal had no jurisdiction to hear the appeal. On 6 August 2018 the appellant filed a response, challenging the contention that the court lacked jurisdiction.
The appellant sought to challenge the well-established jurisprudence in Wendy Fair Markets Ltd. (Strandmill Ltd) v Secretary of State for the Environment [1996] JPL 649; [1995] 159 LGL 769; 1995 WL 1082736, Prashar v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1231; [2001] 3 PLR 116 and Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370; [2013] PLSCS 68 as “per incuriam” or redundant, and in any event to argue that the court should depart from it.
Held: The application was dismissed.
(1) The basic principle running through all the relevant case law still prevailed. The general proposition was that whenever a power was given to a court or tribunal by legislation to grant or refuse leave to appeal, the decision of that authority was, by its nature, final and conclusive. The Court of Appeal had consistently held that a High Court judge’s refusal of leave to bring a section 289 appeal before the court was not a judgment or order of the High Court within the reach of section 16 of the Senior Courts Act 1981. There was a residual jurisdiction or discretion to overturn a decision of the High Court to refuse leave to appeal to itself if the process by which that decision was made had demonstrably been vitiated by misconduct or unfairness. Subject to that qualification, however, the principle itself was secure. The qualification was not engaged in the present case. It was not suggested that the judge’s order refusing leave to appeal to the High Court from the inspector’s decision was vulnerable on the grounds of any misconduct or unfairness in his conduct of the hearing. The grounds of the proposed appeal to the Court of Appeal challenged the merits of the judge’s decision to refuse leave to appeal, not the process by which he arrived at it: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council (No 1) [2002] UKHL 23; [2001] 3 PLR, Wendy Fair Markets, Prashar and Walsall Metropolitan Borough Council followed.
(2) The present case did not come within any of the categories identified in Young v Bristol Aeroplane [1944] 1 KB 718 in which the Court of Appeal could properly depart from its own previous decision, i.e. cases where the court had to decide which of two conflicting decisions of its own it would follow, cases where the court was bound to refuse to follow a decision of its own that could not stand with a decision of the House of Lords or the Supreme Court and those rare cases where the decision in question was given “per incuriam”. There were no relevant conflicting decisions of the Court of Appeal. The previous decisions in which the point in issue here had been decided were all consistent with each other. They had all been based on the same legal principles and analysis. No authority at a higher level cast any doubt upon them and none was “per incuriam”. None of the recent amendments to the legislative and procedural regime for challenging planning decisions under the Criminal Justice and Courts Act 2015 or the adjustments made to the costs capping provisions in section VII of CPR Part 45 called for a different conclusion.
(3) There has been no significant change to the self-contained statutory scheme for the enforcement of planning control or, in particular, the provisions for appeals under section 289 since the judgment in Walsall Metropolitan Borough Council in 2013. The procedure for an “appeal” under section 289 was left unchanged by the 2015 Act. Although the requirement for leave introduced into the procedure for making an “application” under section 288(4A) was in similar terms to the corresponding provision in section 289(6), the amendment to section 288 did not affect the arrangements under which local planning authorities were empowered to take enforcement action. Landowners were given the right to appeal against enforcement notices on specified grounds under section 174, and appeals might be made under section 289 by the appellant or the local planning authority or any other person having an interest in the land to which the notice related. The addition of a statutory leave stage to enable the High Court to filter applications under section 288 did not, and could not, generate a new right of appeal against the refusal by the High Court of leave to pursue an appeal to itself under section 289. For such a right to come into being there would have had to be an appropriate amendment to the arrangements for appeals under section 289. There had been no such amendment, either in the statute itself or in the relevant provisions of the Civil Procedure Rules.
Celina Colquhoun (instructed by Addleshaw Goddard LLP) appeared for the appellant; Victoria Hutton (instructed by the Government Legal Department) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
