England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (ADMINISTRATIVE COURT)
(Sullivan J)

		Royal Courts of Justice Strand London WC2 19th July 2001

19th July 2001
1. LORD JUSTICE KAY: The court has before it three applications for permission to appeal. Each case raises the same point at this stage and therefore I have thought it convenient to hear both arguments before ruling on either and I give a judgment in both matters. What I will deal with first is the joint problem, give my ruling in relation to that and then relate it to each of the individual cases.
2. The issue that arises in each case is whether, where a High Court judge has considered an application for permission to appeal under section 289 of the Town and Country Planning Act 1990, an appeal can be lodged against the refusal of that judge to grant such permission. Each of the cases raises that issue. I have tried to make clear to the applicants in the course of argument that this court is bound by the powers that are given to it by Parliament and then provided for in the Civil Procedure Rules. The court cannot hear a case simply because it thinks an injustice may possibly have occurred if Parliament has specifically denied it the right to hear that case. Therefore, in each case it is necessary, first of all, to consider whether I do have any power to grant the permission that is sought.
3. The matter is one that has been considered in the past. There have, however, been changes in relation to procedure, following the coming into effect of the Civil Procedure Rules, and it is necessary just to look in a little detail at the matter.
4. Section 289(6) of the Town and Country Planning Act 1990 provides that appeals under section 289 can only be brought with the leave of the court. Under the old Rules of the Supreme Court, Order 94 rules 12 and 13, the procedure relating to applications for leave to appeal was provided for. It is quite clear that under those provisions the Court of Appeal did not have jurisdiction to hear an application for leave to appeal against a refusal by the High Court to grant leave. The point was considered and decided in the case of Wendy Fair Markets Limited v The Secretary of State for the Environment and the related cases of Huggett v The Secretary of State and Bello v The Secretary of State (unreported) a decision dated 22nd February 1995.
5. Mr Benge, who appears for himself in one of these cases and also for his company in relation to another, has sought to point out that in the course of his judgment Lord Bingham, then the Master of the Rolls, indicated that the reason behind the statutory removal of a right of appeal was that a lot of unmeritorious appeals were reaching the court and delaying the procedure under the planning provisions. He seeks to argue from that observation, that it follows that in a meritorious case, the court can grant permission.
6. I am afraid that is to misunderstand the law. The reason why Parliament sought to act was the one given by the Master of the Rolls. But Parliament's answer to that problem was to pass a provision in the Access to Justice Act 1999 which, in effect, prevented there being an appeal in such circumstances. This court only has such jurisdiction as is given to it by Parliament. In those circumstances, that authority clearly establishes certainly that under the old rules there was no possibility of this court dealing with an application for permission to appeal whatever its view on the possible merits.
7. The issue must now be considered in the light of the new rules and particularly Part 52. Part 52 created one system of rules for all appeals. Part 52.1(1) states that it applies to appeals to the High Court. An appeal is defined as including an appeal by way of case stated, which is one of the procedures laid down by section 289.
8. The matter is made perfectly clear by the practice direction relating to Part 52, paragraph 4.8 of which provides:

"There is no appeal from a decision of the appeal court made at an oral hearing to allow or refuse permission to appeal to that court." (See section 54(4) of the Access to Justice Act 1999).

9. The whole question of whether there is any right of appeal in such circumstances was considered by this court in Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1 in which Brooke LJ held that the words meant exactly what they said, and the second appellate court refused permission to appeal where there had been an oral hearing in the court below and where it could not be said that there had been no decision at all. That is the legal position.
10. I turn, therefore, to consider the individual cases. In the case of Mr Prashar he seeks leave to appeal against an order that was made in his case. There Sullivan J, on 27th April 2001 sitting in the Administrative Court, refused him leave to appeal from a decision, the appeal being brought under section 289(6).
11. I fully understand and appreciate that Mr Prashar feels very strongly that there has been an injustice in his case. I am in no position to tell whether that is so, but I would be prepared to accept for the purposes of consideration of his application that he may be able to establish that that is so. Nonetheless, even if he were able to establish that that is so, this court has no power to hear his appeal and to deal with the matter. It is not a case of the court not wishing to do so, it is a case of the court being bound by the rules which are imposed upon it as to what cases it can and cannot hear. This is a case that it cannot hear.
12. It follows, no matter what the merits might be of Mr Prashar's application, that in the circumstances of this matter this court has no power to intervene. Accordingly, his application must be dismissed.
13. The other two related applications are ones in which Mr Benge, a director of D B Earthmoving and Plant Hire, has appeared. He has sought to explain to the court exactly what the consequences would be of the decision, as it presently stands, remaining unaltered. He has argued that in those circumstances there ought to be a right of appeal.
14. One matter deserves mention. Initially Mr Benge brought his own application to the High Court under section 288 rather than 289. He was seeking a review of the decision in the matter and in particular was contending that there had been no hearing of his appeal below.
15. In fact what had occurred was that originally there were to be two separate hearings. The inspector had decided that the two matters should be heard together and they were heard together. Accordingly, that application was bound to fail. Sullivan J, who heard the matter, could have stood back and allowed it simply to fail on that basis. He rightly took the view that what really Mr Benge wanted to do was to complain that, the two having been amalgamated, the hearing was not fair. That was a matter that could properly be addressed under section 289 and quite rightly he allowed Mr Benge to change his application to one under section 289. He then considered that application. Mr Benge I think believes that there was some unfairness in that course of action. Whatever else he might be wrong or right about in terms of the unfairness to this date, he is wrong about that. That was clearly the right step to take.
16. The judge then went on and considered on their merits both Mr Benge's application, now under section 289, and that of the company which had always been under section 289. Those applications were considered on their merit. Accordingly, the position is exactly the same as in the other case, namely that no matter what view the court might take about the merits it is precluded by Parliament from hearing any further appeal. Accordingly, in those circumstances, again recognising the strength of feeling that Mr Benge has about these matters, I am in the position where I cannot grant leave and where the application has to be dismissed on the basis that there is no power in this court to hear it.
17. I wish that in some way one could convey more eloquently to each of the applicants that that is the situation. The court is bound by the rules and can only hear those matters that Parliament has permitted that it should hear, and Parliament has decided that there should be no further appeal in such circumstances. For those reasons, each of these three applications will be dismissed.
ORDER: Applications dismissed. No order as to costs.