Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government & Anor

Neutral Citation Number: [2019] EWCA Civ 250 Case No: C1/2018/1297

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR NEIL CAMERON Q.C. (Sitting as a Deputy Judge of the High Court) [2018] EWHC 2029 (Admin)

Royal Courts of Justice Strand, London, WC2A 2LL

Date: 28 February 2019

Before:

Lady Justice Sharp and

Lord Justice Lindblom

Between:

Ms Celina Colquhoun (instructed by Addleshaw Goddard LLP) for the Applicant

Ms Victoria Hutton (instructed by the Government Legal Department) for the Respondent The Interested Party did not appear and was not represented.

Hearing date: 18 December 2018

Judgment Approved by the court for handing down Binning Property Corporation Ltd. v Secretary of State for Housing,

(subject to editorial corrections) Communities and Local Government

Judgment Approved by the court for handing down

(subject to editorial corrections)

Judgment Approved by the court for handing down Binning Property Corporation Ltd. v Secretary of State for Housing,

(subject to editorial corrections) Communities and Local Government

Lord Justice Lindblom:

Introduction

On 19 September 2018 the Secretary of State filed further submissions. On 12 November 2018 I ordered that the matter be listed for an oral hearing – which took place on 18 December 2018.

The issue before us

5. The issue we had to decide – in the light of previous authority on the same point – was whether this court has jurisdiction to hear the proposed appeal against the judge’s order refusing leave to appeal to the High Court against the inspector’s decision under section

289(6). As I said when I ordered an oral hearing, “[in] contending that this court has jurisdiction to hear the proposed appeal, [Binning] evidently seeks to challenge the wellestablished jurisprudence in Wendy Fair Markets Ltd. (Strandmill Ltd.) v Secretary of State

for the Environment [1996] J.P.L. 649, [1995] 159 L.G.L.R. 769, 1995 WL 1082736, Prashar v Secretary of State for the Environment, Transport and the Regions [2001]

EWCA Civ 1231 and Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370 as “per incuriam” or redundant, and in any event to argue that the court may, and should, depart from it”.

Section 289 of the 1990 Act

“(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.

…

(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 … , 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.

…

(a) prescribing the powers of the High Court or the Court of Appeal with respect to the remitting of the matter with the opinion or direction of the court for re-hearing and determination by the Secretary of State … ; and (b) providing for the Secretary of State … , either generally or in such circumstances as may be prescribed by the rules, to be treated as a party to any such proceedings and to be entitled to appear and to be heard accordingly.

(5A) Rules of court may also provide for the High Court or, as the case may be, the Court of Appeal to give directions as to the exercise, until such proceedings in respect of an enforcement notice are finally concluded and any re-hearing and determination by the Secretary of State has taken place, of any other powers in respect of the matters to which such a notice relates.

The requirement in subsection (6) that the leave of the High Court be sought and obtained for an appeal under section 289 was an amendment proposed by Robert Carnwath Q.C., as he then was, in his report of February 1989, “Enforcing Planning Control”. It was introduced by section 6(5) of the Planning and Compensation Act 1991.

Section 16 of the Senior Courts Act 1981

8. Section 16(1) of the Senior Courts Act 1981 provides:

“(1) 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.”

Section 54 of the Access to Justice Act 1999

9. Section 54 of the Access to Justice Act 1999 provides:

“(1) Rules of court may provide that any right of appeal to –

…

…

(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”

The relevant authorities

agreed, referred (on p.3) to the evolution of the statutory provisions, noting that section 289(6) had been amended by section 6(5) of the 1991 Act. As originally enacted, subsection (6) had stated:

“(6) 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.”

“We have been told, and there is no reason to doubt, that the reason why subsection

(6) was amended to introduce a requirement of leave to appeal against an enforcement notice to the High Court was because the unrestricted right of appeal to the High Court on a point of law was becoming the subject of abuse by those who were the subject of enforcement notices and regarded an appeal to the High Court on a point of law as a means of gaining an extension of time during which they could continue to do that which the enforcement notice treated as prohibited. When the lists of the Crown Office were subject to very considerable delay, this was an obvious loophole available to unscrupulous advocates. Accordingly, as a means of providing a filter to prevent the bringing of wholly unmeritorious appeals, the subsection was amended so as to provide that leave was needed for an appeal to the High Court as well as for an appeal from the High Court to the Court of Appeal.”

1981 that “… the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court” – the contention being that “the refusal of leave by a High Court judge to appeal to the High Court is such a judgment or order of the High Court and therefore falls within section 16 and [opens] the jurisdiction of the Court of Appeal to entertain applications such as that”. He said (on p.4):

“The difficulty … with that submission is that although … 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) A.C. 210, continues through Ex parte Stevenson (1892) 1 Q.B. 609, embraces Bland v Chief

Supplementary Benefit Officer [1983] 1 W.L.R. 262, and perhaps ends with Geogas S.A. v Trammo Gas Ltd. [1991] 1 W.L.R. 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 cases had all “emphasised 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 had said in Geogas (at p.780H), “… [the] legislative intention of limited review would be rendered nugatory if appeals were to lie to the Court of Appeal and then to this House against a decision of a judge refusing or granting leave to appeal an award to the High Court and if an appeal were to lie against a decision of the Court of Appeal to refuse or grant leave to appeal from the High Court itself under section 1(7) [of the Arbitration Act 1979]”. That observation was, in the Master of the Rolls’ opinion, “entirely consistent with the purposive construction” placed on similar provisions in the cases to which he had referred (p.5).

“… [As] initially drafted before the amendment, subsection (6) cannot have been intended to embrace an appeal against the refusal of leave by the High Court, because there was then no requirement to obtain leave from the High Court. [Counsel] is therefore obliged to say that the second half of the subsection bears a different meaning after the amendment from the meaning it bore before. There are, however, additional points, one of which is that when the legislature wished to make it clear that a decision was to be regarded as a decision falling within section 16 of the Supreme Court Act 1981, that was made plain as in the case of subsection (4). Furthermore, it would appear to me right to assume that, when subsection (6) was drafted, the parliamentary draftsman responsible for the provision would have been well aware of the meaning which had for a hundred years been put on a provision of this kind by courts at all levels. In other words, it must have been appreciated that if leave to appeal were refused by the High Court there would be no jurisdiction in the Court of Appeal to entertain an appeal against that refusal of leave. …”.

“… I have no doubt that the legislature felt that it was safe to rely on the threshold test, given that a High Court judge, if asked to give leave on a question of law, would be bound to give it if he thought there was a seriously arguable point. For my part I am quite unpersuaded that Parliament intended that there should be any further right of challenge in a case where a High Court judge, having considered the matter, had concluded that there was no arguable point of law which merited the grant of leave.”

It was “plain”, in his view, that there was “nothing in section 16 [of the Supreme Court Act 1981] or in section 289(6) [of the 1990 Act] which confers a right of appeal to this court against the refusal of leave to appeal to the High Court” (p.6). He continued (ibid.):

“… There is a great weight of authority which makes plain that such an application is not to be entertained by this court. I respectfully think that the policy reasons which have been adumbrated are very strongly in favour of restricting rights of appeal in this class of case, given the factor I have already mentioned that High Court judges would be bound to give leave in any case that they regard as arguable.”

He concluded, therefore, that the court had no jurisdiction to determine the applications before it.

Appeal from a decision of the High Court under section 289 without the leave of either the

High Court or the Court of Appeal. The procedural amendments brought about by the Civil Procedure Rules “[did] not lessen the need for the further filter mechanism … introduced by the amended subs. (6)”. In Sullivan L.J.’s view, the “policy reasons for that additional procedural requirement” were “as strong now as they were found to be in 1995”. In Prashar Maurice Kay L.J. had followed Wendy Fair Markets having considered the effect of the procedural changes made by the Civil Procedure Rules, concluding that the Court of Appeal had no jurisdiction to entertain applications for permission to appeal against refusals of leave to appeal to the High Court under section 289(6). The correctness of the decisions in Wendy Fair Markets and Prashar had not previously been questioned (paragraph 8).

[2002] EWCA Civ 405, [2002] 4 All E.R. 390 and CGU International Insurance Plc v AstraZeneca Insurance Co. Ltd. [2006] EWCA Civ 1340 (paragraphs 13 and 14). But the principle was still good. As Sullivan L.J. said (in paragraph 15):

“15. It seems to me that far from casting doubt on the continued applicability of the Lane v Esdaile principle, as it was applied by this court in Wendy Fair, these more recent decisions of the court reaffirm the continued existence of the principle, subject to a “residual jurisdiction” which does not apply in the circumstances of the present case. There is no criticism of the process by which Eder J. reached his decision to refuse permission to appeal under s.289. In particular, there is no suggestion of misconduct or unfairness, or indeed of mischance. … The challenge before us is to the merits of Eder J.’s decision to refuse permission to appeal, and not the process by which he arrived at that decision. I am not persuaded, therefore, that this case falls into the second class of case referred to in Young v Bristol Aeroplane Co.”

Hammersmith and Fulham London Borough Council (No.1) [2002] UKHL 23, [2002] 1

W.L.R. 1593, the decision of the Supreme Court in R. (on the application of Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 A.C. 663 and the decision of the Privy Council in Kemper Reinsurance Co. v Minister of Finance [2000] 1 A.C. 1 (paragraph 16). He referred

(in paragraph 17) to Lord Steyn’s observation in Burkett (in paragraph 11 of his speech):

“11. … Lane v Esdaile is only authority for the general proposition that whenever a power is given to a court or tribunal by legislation to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive … .”

Sullivan L.J. went on to say (in paragraph 20):

“20. All of these authorities emphasise the distinction between the High Court's judicial review powers and its powers on a statutory appeal. They also emphasise the need for decisions by lower courts and tribunals not to be “immune from scrutiny in the higher courts”. Mr Coppel rightly submits that in substance, an appellant on a point of law under s.289 will be raising the kind of arguments that he would be able to raise in judicial review proceedings. But the fact remains that Parliament has chosen to provide a statutory appeal process for challenges to enforcement notices on the very comprehensive grounds set out in s.174. It has not rendered Inspectors’ decisions under s.174 immune from scrutiny in the higher courts; but it has deliberately excluded a challenge to the validity of an enforcement notice on the grounds set out in s.174 by way of judicial review. The court in Wendy Fair would have been well aware of the fact that in 1995, as is the position now, an applicant for permission to apply for judicial review who is unsuccessful in the High Court can ask the Court of Appeal to reconsider the refusal of permission to apply for judicial review. Although the grounds of challenge may well be somewhat similar, whether a challenge is mounted in a statutory appeal or by way of judicial review, we are concerned with a statutory appeal process, and where there is a statutory appeal process Parliament is able, subject of course to compliance with art.6 of the European Convention on Human Rights, ... to impose conditions and limitations on the statutory right of appeal. It has chosen to do so in s.289, and the court in Wendy Fair noted the difference in this respect between challenges under s.288 to an

Inspector’s decision to dismiss a planning appeal, where there is no requirement to [obtain] leave to apply to the High Court to quash the Inspector’s decision, and challenges under s.289 to Inspectors’ decisions on enforcement notice appeals. Although the wording of ss.288 and 289 is somewhat different, the basis on which an Inspector’s decision may be challenged in the High Court is the same in substance in both cases, namely that the Inspector has erred in law in allowing or dismissing the appeal.”

The Master of the Rolls had recognized in Wendy Fair Markets that there was a “plain disparity” between the two sections. One imposed a requirement of leave; the other did not. There was, said Sullivan L.J., an “inconsistency between the position under s.289 and the position in judicial review proceedings, and between the position under ss.288 and 289, but it is an inconsistency which Parliament has deliberately enacted” (paragraph 21). He accepted that the procedure for an appeal under section 289 complied with article 6 of the Convention, observing that “[the] filter requirement in s.289(6) simply enables the High Court, exercising its “full jurisdiction”, to make sure that the court’s resources are used in an effective way, and time is not wasted on unarguable challenges” (paragraph 27).

Does this court have jurisdiction to hear Binning’s application?

Convention claims under section VII of CPR Part 45 (by section 90 of the Criminal Justice and Courts Act 2015 and rule 8(5) of the Civil Procedure Amendment Rules 2017), and by the amendments to the 1990 Act – among them the amendment to section 288 introducing a leave filter for such challenges (by section 91 of, and paragraph 4 of Schedule 16 to, the 2015 Act). She argued, first, that with the advent of costs protection for Aarhus Convention claims – including now, under CPR r.45.41(2)(a)(i), both “judicial review” and “review under statute”, and, under CPR r.45.41(3), appeals brought under section 289(1) – it is clear that all such proceedings are to be treated alike. And secondly, she submitted that it is no longer possible to rely on a “disparity” between section 288 and section 289 after the introduction of subsection (4A) into section 288 – which provides that “[an] application under this section may not be made without the leave of the High Court”. The insertion of a requirement for leave into section 288 was for the same purpose as the introduction of the parallel requirement into section 289(6), and the procedure for claims for judicial review – to filter out unmeritorious cases. The Court of Appeal has jurisdiction to entertain appeals against the refusal of leave in challenges under section 288 and in claims for judicial review. Even though an appeal under section 289 is not a “planning statutory review”, as defined in CPR Part 8, a refusal of leave may be a “judgment or order of the High Court” under section 16 of the Senior Courts Act 1981. Thus, submitted Miss Colquhoun, there is now no justification – if ever there was – for retaining an obvious “discrepancy” in the treatment of proceedings under section 289.

that case, there is 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 has demonstrably been vitiated by misconduct or unfairness. Subject to that qualification, however, the principle itself is secure.

enforcement action, landowners are given the right to appeal against enforcement notices on specified grounds under section 174, and appeals may 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 relates”. 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 to the Court of Appeal against the refusal by the High Court of leave to pursue an appeal to itself under section 289. For such a right of appeal to come into being there would have had to be an appropriate amendment to the arrangements for appeals under section 289. There has been no such amendment – either in the statute itself or in the relevant provisions of the Civil Procedure Rules.

Borough Council have not gone away. She mentioned the problem of “abusive appeals”, as Sullivan L.J. described them in Walsall Metropolitan Borough Council, which bring needless uncertainty and delay to the enforcement of planning control. That this problem is mitigated by the finality of a High Court judge’s refusal of leave to appeal against an inspector’s decision on a section 174 appeal may be seen as some justification for the difference between the arrangements for appeals under section 289 and those for applications under section 288. Another difference to which Ms Hutton referred was that, under section 288(4B), a section 288 application must be made within six weeks of the decision under challenge, whereas, under paragraph 26.1(1) of Practice Direction 52D, a section 289 appeal must be made within 28 days.

“… (1) Where permission to apply for a planning statutory review has been refused at a hearing in the High Court, an application for permission to appeal may be made to the Court of Appeal.

(See Part 8 and Practice Direction 8C.) … .”

Under section 54 of the 1999 Act, rules of court may make such provision for a right of appeal. CPR r.52.10 has effectively done so for proceedings under section 288, but not for proceedings under section 289. This could have been done, but was not.

r.45.41(2)(a)(i) claims for “review under statute” as well as claims for judicial review, and that it was considered necessary to provide, as CPR r.45.41(3) does, that appeals under section 289(1) are “for the purposes of this Section to be treated as reviews under statute” – with a corresponding provision in paragraph 26(17) of Practice Direction 52D – does not bear on the principle with which we are concerned. The consistent regime for costs protection does not yield a right of appeal to the Court of Appeal against the High Court’s refusal of leave to appeal to itself under section 289(6). It does, however, confirm the deliberate distinction in the Civil Procedure Rules between a “planning statutory review” under section 288 and a section 289 appeal.

Conclusion

Lady Justice Sharp