Persimmon Homes & Ors v Secretary of State for Transport

This is an application by the compensating authority for permission to appeal against an "interim decision" dated 22 December 2009 by the Lands Chamber of the Upper Tribunal ("the tribunal") [2009] UKUT 126 (LC). There is an addendum dated 27 January 2010 to the interim decision.

The tribunal refused permission to appeal for the following reason:

On 4 March I ordered that the application for permission to appeal should be adjourned to a hearing on notice to the respondent observing that there should be a hearing to determine three matters:

The reference to second appeal criteria was an error on my part. In this case the tribunal was exercising its jurisdiction as a first instance tribunal and was not acting as an appellate tribunal. If permission is granted, this will therefore be a first appeal and the normal criteria of real prospect of success or other compelling reason why the appeal should be heard are applicable.

In the event the claimants before the tribunal, the respondents to this application, have elected not to appear at this hearing but instead rely on their written representations dated 19 January 2010 to the tribunal, which persuaded the tribunal that there was no power to appeal at this stage because, in summary, this was an interim decision not a final decision.

The right to appeal to this court from the tribunal is governed by section 13 of the Tribunals, Courts and Enforcement Act 2007 (“the Act”). With the permission of either of the tribunal or this court, the applicant as a party to the case before the tribunal has a right to appeal "…on any point of law arising from a decision made by the upper tribunal other than an excluded decision":

The interim decision is not an excluded decision as defined by subsection 13(8). Is it a decision for the purposes of subsection (1)? The description of the decision as an interim decision is not determinative of this issue. A decision may be an interim decision because all of the findings contained therein are expressly made on a provisional rather than a final basis. Other decisions may also be described as interim decisions because, although they do finally resolve certain issues, they leave other issues for further determination. This decision falls into the latter category. Although described as an interim decision, it did conclusively determine a number of important issues, including the following issues that are raised in the applicant's grounds: 1) whether the compensation payable should be reduced by betterment: see paragraph 111 of the tribunal's decision; 2) whether the Pointe Gourde (Quarrying and Transport Company Limited v Sub-Intendent of Crown Lands [1947] AC 565 (PC)) principle and/or section 6 and Schedule 1 of the Land Compensation Act 1961 should be applied by adopting a "cancellation assumption": see paragraph 132 of the decision; 3) and 4) that subject only to hearing further highway evidence (see paragraph 134) there was a very good chance (85 per cent) that planning permission would have been obtained for residential development on 4.5 hectares of the 15 hectare Folly site and there was a 25 per cent chance that planning permission for residential development would be granted for the remainder of the 15 hectare site after 2006 (paragraph 133 of the decision).

It is true that the valuation implications of the tribunal's findings on these issues have yet to be quantified, but that does not mean that its decision in respect of those issues was not a decision for the purposes of section 13(1). It is not in the least unusual, as Jacob LJ pointed out, to separate out decisions as to the assumptions to be adopted by the valuers and the valuations themselves in the light of those assumptions. Where certain matters are decided but others are left unresolved, there may well be a valid argument that it would be premature to appeal against the decision until all matters have been finally resolved but it does not follow that there is no decision against which an appeal can be made under section 13(1). The respondent's written submissions to the tribunal relied on the fact that there had been no order for the trial of a preliminary issue. However, in my judgment it is important to look at the substance rather than mere matters of form when deciding whether there has been a decision for the purposes of section 13(1). In the present case the answer to my question (a) is “yes”: there undoubtedly has been a decision even though certain matters were left for further determination.

I therefore turn to the second question, whether permission should be refused as a matter of discretion because it would be premature to challenge the interim decision and any appeal should await the tribunal's decision on all the outstanding issues. The tribunal does not appear to have refused permission to appeal on this basis. It appears instead to have adopted the respondent's submission that there was no power to appeal because this was an interim decision which had not yet taken effect. Once it has concluded that there is an appealable decision, there is in my view no doubt that if there is substance in the applicant's grounds (see below), permission to appeal should be granted now so that the matters in dispute can be resolved by this court before the parties have to return to the tribunal.

The agreed time estimate for the further hearing before the tribunal is five days. The further hearing has been listed for 7 to 11 February 2011. Preparation for the hearing will take many weeks and be very costly, well in excess of £100,000. All this time and money would have been wasted if the applicant in due course succeeded on ground 1, betterment. Success on grounds 2 to 4 would significantly affect the approach of the valuers to the quantification exercise to be carried out in February 2011. It is also desirable that the applicant's additional ground 4A, which contends that the tribunal failed to deal with a number of matters and ground 5, which contends it should not have sought legal advice from the President of the Lands Chamber of the Upper Tribunal, are determined before the tribunal resumes consideration of the matter. Given that the matter is not due to come back before the tribunal until February 2011, there is sufficient time for this court to answer the questions raised in the applicant's notice of appeal.

Thus the answer to my question (b) is an emphatic “no”. There is no prematurity objection to us entertaining an appeal now.

Turning then to the last question (c), I would merely say that all of the grounds have a real prospect of success and in the case of some of the grounds, grounds 1 and 2 and 5, there are other compelling reasons for granting permission to appeal because they do raise important questions of principle as to how betterment should be considered, how Pointe Gourde should be applied in the light of the House of Lords decision in Transport for London v Spirerose Ltd [2009] UKHL 44 and the role of the President in circumstances such as this.

For my part, therefore, I would grant permission to appeal on all of the grounds, including the additional ground 4A and I would stay the Lands Tribunal proceedings pending the determination of the appeal.

I agree. I would only add this. If one looks at the decision of the tribunal, it is quite clear in its summary at paragraph 123 that it has made findings on the questions which it then sets out. Those findings are not provisional. It would not be open to the tribunal to go back on them. They are therefore either decisions or not and the answer once you have asked that question is quite clearly that is what they are. It follows that an appeal lies to this court.