England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANDS TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 15th March 2001

1. LORD JUSTICE ROBERT WALKER: This judgment should be taken as superseding the provisional judgment (on whether or not permission to appeal is required) which I gave on 12th January 2001. I have considered whether I should simply supplement that judgment, taking it as read into this one, but since the issue of the need for permission is one of some importance (both to the numerous applicants and to the wider public), I think it is better to give a single self-contained judgment, even if it involves some repetition.
2. This is an application by Miss Linda Dadak and forty-seven other applicants – including four whom I now give permission to be joined – for permission to appeal from an order of the Lands Tribunal (Mr PH Clarke FRICS) made on 19th October 2000. That order granted (without any condition as to compensation) an application to modify restrictive covenants made under section 84 of the Law of Property Act 1925 (as amended) by The Girls' Day School Trust (1872), a well-known educational charity which I will call "the Trust".
3. This application to modify the covenants relates to proposed building works (which I shall refer to later) at the Notting Hill and Ealing High School on the edge of the St Stephen's Park Estate in Ealing, London W13. A number of procedural points have arisen, the most important of which is whether permission to appeal is needed at all. At the hearing Miss Dadak and Dr Gillian Reed appeared in person, Dr Reid also acting as spokesperson for numerous other objectors. Since the order of the Lands Tribunal was made, the objectors have again obtained legal representation and their solicitors, Dawson & Co, applied on 16th November 2000 to the Lands Tribunal for permission to appeal. They also simultaneously applied to the Court of Appeal by a notice in Form N161 seeking permission to appeal.
4. On 6th December 2000 the Lands Tribunal refused permission by an order which included the words "in so far as the Tribunal has power to do so". Why those words appeared in the order I do not know, especially since I have been shown a copy of the current Practice Direction 3/00, issued by the President of the Lands Tribunal, which supersedes the previous Practice Direction 1/99 and lays down the procedure for applying to the Lands Tribunal for permission to appeal to the Court of Appeal. On any view this would not be a second-tier appeal, since the Lands Tribunal was exercising an original statutory jurisdiction.
5. There was a hearing in this Court on 12th January at which Mr William Henderson appeared for the applicants and Mr Mynors, who had been instructed at very short notice, appeared for the Trust. I directed that the application should proceed as if made on notice. I raised the issue of the need for permission and heard some submissions on that issue. I delivered a short judgment expressing the provisional view that permission was not needed. I have now come to the conclusion that that provisional view was wrong. I express my sincere regret that a point which I raised has caused delay and expense to the parties. I should add that in considering this matter further I have consulted the presiding Lord Justice with responsibility for appeals from the Lands Tribunal, Laws LJ. I found that discussion helpful but my conclusion is my own view reached after further detailed written and oral submissions, for which I am grateful to counsel.
6. The starting point must be section 3(4) of the Lands Tribunal Act 1949 which (as amended by the Civil Procedure (Modification of Enactments) Order 2000) provides as follows:

"A decision of the Lands Tribunal shall be final:

Provided that any person aggrieved by the decision as being erroneous in point of law may, within such time as may be limited by rules of court, [in England and Wales appeal to the court and otherwise] require the tribunal to state and sign a case for the decision of the court...."

7. The subsection continues, but I need not read any more of it. The amendment consists of the substitution of an ordinary appeal for an appeal by way of Case Stated in matters within England and Wales. The Case Stated procedure is therefore still applicable in Scotland and Northern Ireland. Section 3(11)(a) of the same Act provides that the court referred to in subsection (4) shall be the Court of Appeal.
8. It is common ground that for fifty years, from 1949 until 1999, no permission was required for an appeal from the Lands Tribunal to this Court on a point of law arising on a final decision. It is also common ground that the position then changed. That was the effect of section 18(1A) of the Supreme Court Act 1981 (inserted by the Courts and Legal Services Act 1990) which enabled the requirement for permission to appeal to the Court of Appeal to be imposed by rules of court. Under that section 18(1A) a new Order 59, rule 1B was introduced with effect from 1st January 1999. The earlier Practice Direction of the Lands Tribunal which I have mentioned (that is Practice Direction 1/99) was plainly made with that provision in mind. However, section 18(1A) has now been repealed and Order 59, rule 1B is no longer in force. Section 54(1) of the Access to Justice Act 1999 has in effect replaced section 18(1A) and subrule 3(1) of Rule 52 of the Civil Procedure Rules provides:

"An appellant or respondent requires permission to appeal-

(a) where the appeal is from a decision of a judge in a County Court or the High Court, except where the appeal is against [and then there are three well-known exceptions dealing with the liberty of the subject]; or

(b) as provided by the relevant practice direction."

9. The relevant Practice Direction is that supplementing Part 52, and paragraph 4.2 of the Practice Direction provides:

"The permission of -

(a) the Court of Appeal; or

(b) where the lower court's rules allow, the lower court is required for all appeals to the Court of Appeal except as provided for by statute or rule 52(3)."

10. At the earlier hearing Mr Henderson described these provisions as having a somewhat circular effect. Certainly it is not easy to work out what their practical effect is. The Lands Tribunal is a true tribunal. It is not part of the High Court, nor is it a superior court of record, unlike for instance the Employment Appeal Tribunal or the Restrictive Practices Court. An appeal from the Lands Tribunal is not therefore within subrule 3(1)(a) of rule 52, and it is caught (if it is caught at all) by the sweeping up provision in the Practice Direction. But that poses the question whether section 3(4) of the Lands Tribunal Act 1949 (as amended) amounts to a statutory provision enabling an appeal to the Court of Appeal to be made without permission.
11. On that question I expressed the provisional view that section 3(4) was such a provision, in contrast to other provisions (such as section 24 of the Social Security Administration Acts 1992) which expressly require permission from the Court of Appeal.
12. Today Mr Henderson has adopted that reasoning and has supplemented it with further material from his own researches. He has drawn attention to what Lord Bridge said (about section 50(3) of the Solicitors Act 1974 as amended) in Holden v Crown Prosecution Service (No 2) [1994] 1 AC 22, 37. But Lord Bridge's reference to an unfettered right of appeal has no special significance since at that time most final appeals to the Court of Appeal could be brought without permission. Mr Henderson has also provided material about appeals from other tribunals and has helpfully analysed Section III of the Practice Direction to Civil Procedure Rules Part 52. However, I cannot draw any firm conclusion from that analysis.
13. Mr Henderson also made an interesting submission that paragraph 4.2 of the Practice Direction is really concerned not with the need for permission but with the Court from which permission has to be obtained. That is obviously correct up to a point, but paragraph 4.1 (the only other source of guidance on the subject) sends the reader to rule 52.3, and the only way to avoid circularity that I can see is to be sent back not to paragraph 4.1 but to paragraph 4.2.
14. Mr Jonathan Milner (who appeared in the Lands Tribunal, and has appeared today for the Trust) has also relied on the fact that the Practice Direction refers to appeals from the Lands Tribunal as being within its purview. He has relied on the evident intention of the recent reforms of civil justice being to produce a general procedural rationalisation and a consistency of approach requiring permission to appeal to the Court of Appeal in every case except where the liberty of the subject is involved.
15. In the end it is a short issue of statutory construction. Section 3(4) of the Lands Tribunal Act 1949 provides for a route of appeal direct to the Court of Appeal but does not expressly require or expressly dispense with the need for permission. The fact is that between 1949 and 1999 there was no general need for permission for final appeals to the Court of Appeal, so the effect of section 3(4) was not to require permission. But if and so far as that could be read as impliedly dispensing with the need for consent (and I am not sure that that is a sensible or realistic way of looking at it), the implied provision to that effect must have been repealed by the primary and secondary legislation enacted (as I have mentioned) in 1999.
16. Section 15 of the Interpretation Act 1978 provides that where an Act (in this case the Access to Justice Act 1999) repeals a repealing enactment (in this case and on the hypothesis which I have mentioned section 18(1A) of the Supreme Court Act 1981 as amended, and order 59, rule 1B made under it), the repeal does not revive any enactment previously repealed unless words are added reviving it. If and so far as the changes made in 1999 impliedly repealed any implied dispensation with the need for permission capable of being found in section 3(4), that rule would apply. But that is, I think, an intellectually cumbersome and probably unnecessary way of meeting an argument of doubtful validity. I prefer the simpler view that section 3(4) is, and always has been on its own simply neutral as to the need for permission. It is not therefore a statutory provision taking an appeal of this sort outside the ordinary rule.
17. I move on to the application for permission to appeal. The Lands Tribunal was asked to modify restrictions contained in a deed dated 8th October 1900 (creating a building scheme affecting the St Stephens Park Estates) as applied to the land in question by subsequent conveyances dated 18th July 1902 and 31st October 1945 (the latter conveyance being the conveyance to the Trust itself).
18. The relevant restrictions were referred to as the trades restriction, the building line restriction and the nuisance restriction. They were dealt with separately in the written decision of the Lands Tribunal (at paragraphs 24-72, 73-79 and 80-87 respectively), but so far as there is any issue as to their construction they must of course (since they were imposed by a single deed) be construed as part of the process of construing the deed as a whole.
19. The Lands Tribunal modified all three restrictions, the trades restriction under section 84(1)(a) and (aa), and the building line restriction and the nuisance restriction under section 84(1)(aa) alone. Mr Clarke said that the most important issue was as to the trades restriction, and that view of his has not been challenged. Mr Henderson has devoted most of his skeleton argument and a significant part of his oral submissions to this topic.
20. Without going into excessive detail on what is only a preliminary application, I should say a little about the position on the ground and the Trust's proposals. Since it first moved to the area in 1931, the school has developed southwards from the junction of Cleveland Road and Castlebar Hill, and it now occupies a substantial area on which a science block, an assembly hall and various other buildings have been erected. Most of this area is outside the St Stephen's Park Estate building scheme. But in 1945 the Trust acquired a property (Skipton House or alternatively 4 Cleveland Road) which is within the building scheme, being at the extreme northeast corner of the St Stephen's Park Estate. This was a large dwelling house on an unusually large plot. It has been used for educational purposes (without objection from adjoining owners) since then, and in 1970 a library, and a sixth form block, including a sixth form common-room, were built in its garden and have been used since then again (again without objection).
21. The Trust now wishes to clear the Skipton House site and to redevelop it in a manner which the Lands Tribunal decision described as follows (I read from paragraph 16 of the decision):

"On 3 September 1998 the London Borough of Ealing granted conditional planning permission [and then the reference number is given] for the following development at Skipton House:

'Demolition of existing educational building (4 Cleveland Road) and existing library and stores and construction of new swimming pool and three-storey arts block, a bridge link at first floor level to existing school building. Formation of additional parking area on existing forecourt.'

I will refer to this development as 'the redevelopment of Skipton House'. The accommodation in the new building will comprise a swimming pool with changing rooms and ancillary accommodation in the basement; a recital room on the ground floor; music and practice rooms and three classrooms on the mezzanine floor; and sixth form common rooms and art rooms on the first floor, with a bridge link to the main school."

22. Mr Milner has emphasised and put in the forefront of his submissions that the project there described is part of a comprehensive reorganisation affecting the whole school. That was, he said, explained in largely unchallenged evidence given to the Lands Tribunal by the Head Mistress, Mrs Whitfield. However, the plan has produced widespread opposition from neighbouring owners and has led to the opposed hearing before the Lands Tribunal which occupied four days.
23. Mr Henderson's main attack on the decision (so far as it affects the trades restriction, and by analogy the building line restriction) is that Mr Clarke erred in his approach to issues of past waiver of breaches, which in turn affected his application of both paragraph (a) and paragraph (aa) of section 84(1). Mr Henderson has described this point as pervading all or almost all of his proposed grounds of appeal. The basic issue (although it is elaborated in a long series of paragraphs in the grounds of appeal) is whether past waiver of or acquiescence in use for educational purposes, that being seen as a very wide and general category, means that the applicants cannot now object to the construction and use as part of the school of the swimming pool, the music rooms and the other elements of the proposed development as I have described them.
24. I have formed the view that on this point the applicants have raised points of law which, although by no means easy to argue, have more than a fanciful prospect of success and would or might materially affect the outcome of the matter as a whole. In the circumstances it is better not to say much more about them except to note, as I must, the difficulty of relating any reasonably brief grant of permission to the elaboration of the grounds of appeal which consists of six main paragraphs, two of which are sub-drafted into nine sub-paragraphs.
25. I approach that task by saying that I will give permission to appeal for grounds 1.1, 1.3 and 1.4 in the appeal notice (I will come back to ground 1.2). In spite of Mr Henderson's eloquent submissions on the subject, I do not give leave for ground 1.5, which seems to me unarguable except accept so far as Mr Henderson's "all-pervasive" point breaks surface in 1.5(c). I will give permission for grounds 1.7, 1.8 and 1.9 but only insofar as they are consequential on the main grounds. As I read them, they are consequential on the main grounds, but I do not intend to permit them to be developed in new directions.
26. I do not give leave for challenges to case-management decisions taken by Mr Clarke (which appear notably at grounds 1.2 and 1.6), except so far as they can be demonstrated to be closely linked to, and consequential on, the main grounds for which I give permission to appeal. I include in the case-management decisions, for which I do not grant permission to appeal, Mr Clarke allowing the public interest point to be taken when it was raised at an early stage in the hearing, despite the fact that it was not set out in the text of the notice of application.
27. I give permission for ground 2 so far as it follows (and as I understand it, it does follow) the permitted heads in ground 1. Both sides seem to agree that ground 2 is a matter of relatively very little importance.
28. I have found the competing arguments on ground 3 (nuisance) quite hard to follow in spite of the best efforts of counsel to explain them to me. Mr Henderson suggested that the words "or in accordance with the implementation of the planning permission", which appeared in the modification in its final form, had the effect of greatly widening the scope of the modification approved by the Lands Tribunal as compared with what was asked for in the original application notice. Mr Milner, on the other hand, said that those words, so far from widening it, had a limiting effect. If that point is incapable of being resolved in advance of the appeal hearing, I will give a very limited permission for that point to be raised and argued at the appeal hearing. Although the drafting of this part of the modification is by no means elegant or even clear, I am somewhat sceptical about Mr Henderson's submission. However, it is an important submission which he should be allowed to make and he should be allowed to make such points consequent on the outcome of that as the Court of Appeal may permit at the hearing. To that extent I am, I fear, passing on the responsibility on to the full hearing. Apart from that I do not give permission for the ground 3 arguments except for, first, ground 3.9 (compensation) and, second, such assistance as other paragraphs of ground 3 may give to the abuse of process argument (ground 4) to which I shall come in a moment. There may be nothing in ground 3.9. Certainly Mr Milner has vigorously argued that there is no merit in that point, but I detect a sense of grievance in relation to it and I think it is one that I should permit to be ventilated.
29. I do not give permission for ground 5 or ground 6 except so far as anything in those grounds can be shown to be simply a reflection or modest extension of grounds for which I have already given permission. This was plainly a difficult case for the member, Mr Clarke, to deal with, and any general picking over of all his case-management decisions in the course of a difficult hearing would, it seems to me, be most undesirable. I do give permission for ground 4 in the limited sense in which Mr Henderson has explained it, that is, his contention that the Trust tried in effect to pick off parts of the restrictions without presenting their case in the round against the restrictions as they stood in the round. Mr Henderson may or may not be able to make anything of that point but it is one which he should, in my view, be permitted to argue.
30. Counsel should please try – and I am aware that it is far from an easy task – to agree a minute of order reproducing the effect of this judgment. If they find it impossible, they will simply have to obtain an approved transcript of this judgment and show that to the Court of Appeal. But a far better course, if it is feasible, would be for counsel to agree to a pruned and revised form of the grounds of appeal. That would certainly be of great assistance at the full hearing, if it can be produced.
31. Finally, I think it right to say that I give permission to appeal with considerable misgivings. My decision will certainly occasion further delay and expense, not to mention hard feelings. It may not ultimately achieve anything for the objectors except more legal costs. However, it is my duty to grant permission to appeal if the appeal would have more than a fanciful prospect of success, and it appears to me that it would. I do not know whether even at this late stage there is the remotest prospect of some alternative form of dispute resolution being resorted to. I would ask the parties at least earnestly to consider whether there is any possible alternative means of resolving the dispute. If there has to be an appeal, it is most desirable that it should be heard and decided well before the long vacation, which in this case means the school vacation rather than the legal vacation, and I will hear counsel on the subject of expedition, including the likely duration of the appeal, and on the subject of a stay of execution pending the appeal.
(Application allowed; expedition ordered; costs in the appeal of this and the previous hearing)