England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Elias)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

1. LADY JUSTICE HALE:This is a renewed application for permission to appeal against the order of Mr Justice Elias made on 30th January 2001 in the High Court. He dismissed the applicant's appeal on a point of law under section 289(1) of the Town and Country Planning Act 1990 ("the 1990 Act") from the decision of the planning inspector dated 30th August 2000. She had dismissed the applicant's appeal under section 74 of the 1990 Act against the decision of East Hampshire District Council to issue an enforcement notice.
2. The first question to arise is the proper criterion for the grant of permission. Appeals from the High Court are governed by section 16 of the Supreme Court Act 1991, which says that an appeal lies from any judgment or order of the High Court. Session 289(6) of the 1990 Act provides that:

"No proceedings in the High Court shall be brought by virtue of this section except with the leave of that Court and no appeal to the Court of Appeal shall be so brought except with the leave of the Court of Appeal or of the High Court."

3. However, section 55(1) of the Access to Justice Act 1999 now provides:

"Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal shall be made to the Court of Appeal from that decision unless the Court of Appeal considers that -

(a)the appeal would raise an important point of principle or practice, or

(b)there is some other compelling reason for the Court of Appeal to hear it."

4. In my view this was clearly an appeal to the High Court. Section 55(1) therefore applies and supersedes or qualifies section 289(6) insofar as that section permits an appeal to the Court of Appeal with the leave of the High Court. There is, in my view, no reason to distinguish this provision from all the other similar provisions now governed by section 55(1).
5. The criterion in section 55(1) is clearly intended to be more stringent than the ordinary test for the grant of permission: that is, whether an appeal would have a real prospect of success. In any event, Mr Alesbury, who appears for the applicant, seeks to argue that that more stringent test covers this case.
6. The facts were conveniently summarised by Mr Justice Elias in paragraphs 2 and 3 of his judgment as follows:

"On 3rd July 1991 planning permission was given for the erection of a two storey dwelling for occupation by a brick kiln burner worker on land at Selborne in Hampshire. Certain conditions were attached to that permission. The first condition included the usual requirement that the development must be begun within a period of five years, beginning with the date of the permission. That condition, of course, gave effect to section 91 of the 1990 Act.

By the time the enforcement notice was issued the construction of the cottage was well underway. The alleged breach was that the development had been carried out without the appropriate planning permission. The basis of this allegation was that it was said that the permission had lapsed since no operations in accordance with the conditions had been carried out within the five year period. That period ended on 3rd July 1996."

7. The inspector dismissed the appeal on two grounds. One of those is not relevant to this application because Mr Justice Elias determined it in the applicant's favour. The other was that, although some work had been carried out within the five-year period, this was de minimis and did not constitute the beginning of the development as required by section 21. Mr Justice Elias found that the inspector had applied the right test and had reached a factual conclusion that she was entitled to reach.
8. The work in question was the grubbing out of part of a hedgerow where the new access to the cottage was to be. The evidence was that this was transplanted so as to reinstate the hedgerow where another unauthorised access had been created. This work was done in or about January 1993. The inspector said, at paragraph 23 of her decision:

"I find on the evidence before me that the work undertaken in 1993 solely comprised the scooping out of a section of hedge in the rough position of the new access. There was no substantial evidence that the ditch was piped or that any other work was carried out in connection with the creation of the access until 1998/99. No additional excavation works were undertaken and no verge crossing was made. Whilst I appreciate that section 56(2)(d) [sic] refers to `any operation', I find as a matter of fact and degree that the work carried out prior to 3 July 1996 was de minimis."

9. The suggested point of principle concerns the proper interpretation of section 56 of the 1990 Act. Subsection (2) defines the beginning of the development for the purpose of, among other things, the five-year rule in section 91 as follows:

"... development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out."

10. Mr Alesbury, not surprisingly, emphasises the words "earliest date", "any" and "begins to be". Sub-section (4) defines "material operation" to mean a variety of works and, in paragraph (d):

"any operation in the course of laying out or constructing a road or part of a road"

11. It is well established that this includes an access driveway.
12. Mr Alesbury therefore argues, first, that the inspector must have been construing "any operation" to mean "the substantial carrying out" of any such operation. Otherwise, why did she refer to what had not been done rather that to what had been done? The answer to this point is the simple one which was given by the judge. The passage quoted from paragraph 23 of her decision is in the context of a section of the decision which relates the evidence as to what had been done in 1993. She had to find facts as to exactly what had been done. That is why she phrased that paragraph in that way.
13. The statutory provisions are correctly set out at paragraph 8 in her decision. In paragraph 11 of her decision, under the heading "Whether the development was begun within 5 years of the grant of planning permission", she refers to the case of East Dumbartonshire Council v Secretary of State for Scotland [1999] 1 PLR 53. One part of that is not in dispute for this purpose, but the second reference is this:

"... the Court should consider whether it was material in the sense of not being de minimis. At the inquiry the parties agreed that the test was objective and that the onus of proof was on the Appellant to provide evidence that work took place."

14. Mr Alesbury does not quarrel with that statement, save to emphasise that care has to be taken in applying the de minimis qualification. It should be properly related to the wording of the statute, and the wording of the statute is as I have already both quoted and emphasised.
15. He further draws attention to the fact that the facts of this particular case were very like the facts of an earlier decision of this court in Thayer v Secretary of State for the Environment [1991] 3 PLR 104. In that case a gap had been made in a boundary hedge and surface earth had been removed in preparation for a driveway. However, the main issue in that case, as he accepts, was whether that was done for the purpose of carrying out the permitted development. The case did emphasise that the quantum of the works done was only relevant on a de minimis basis.
16. However, for my part I find it quite impossible in this case to conclude that the inspector had applied the wrong test. She not only set it out correctly and then went on to find her facts, but she reminded herself, when drawing her conclusion in paragraph 23, that section 56(4)(d) refers to "any operation". It could not be an appropriate criticism of this decision to say that she should at that point also have reminded herself of the words "begins to be" in section 56(2).
17. Once it is shown that the inspector had asked herself the right question, the matters of fact and degree were for her to determine. Mr Alesbury stopped short of saying that her decision was perverse. In my view he was right so to do. An appeal in this case would have no real prospect of success, still less does it raise any important point of principle or practice: it is just a question of applying established law to the facts found by the inspector.
18. For those reasons I would refuse this application
19. LORD JUSTICE DYSON: I agree.
Order: application for permission to appeal refused.