England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 July 2015

Mr John Howell QC :

1. On June 4^th 2015 I dismissed the Appellant's appeal to this court under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against the decision of an Inspector appointed by the First Respondent in which the Appellant's appeal against an enforcement notice had been dismissed: see [2015] EWHC 1564 (Admin). I granted the Appellant permission to appeal against my decision to the Court of Appeal.
2. On June 29^th 2015 the First Respondent's solicitor sent me an e-mail informing me that the Appellant had filed an Appellant's Notice with the Court of Appeal. She also informed me that in another recent case an (unnamed) High Court Judge had found in another (unspecified) case that he had no power to grant permission to appeal to the Court of Appeal against a decision under section 289 of the 1990 Act, as it would be a "second appeal" for which only the Court of Appeal may grant permission, and that the judge in that case had amended the order he had previously made to delete that part which granted permission to appeal following submissions from the parties. She apologised for the fact that this had not been drawn to my attention at the hearing at which I had granted the Appellant permission and at which the Respondent had been represented by counsel.
3. Although her message was put in an apologetic and courteous way, the First Respondent's solicitor was in effect contending that I had had no power to grant the Appellant permission to appeal to the Court of Appeal and that I should aside the permission I had granted. Rather than require the First Respondent to make an application by filing an application notice, in order to save costs and time, I invited the parties to make submissions in writing on whether (a) the High Court has jurisdiction to grant permission to appeal to the Court of Appeal against its judgment or order in proceedings under section 289 of the 1990 Act and (b) whether, if the High Court has no such jurisdiction, it has power to set aside any order in which it had granted it. I also indicated my provisional view on the first question and referred the parties to a decision of the Court of Appeal on which it was based so that (without prejudice to any other points or matters which they might wish to raise) they could address it in their submissions.
4. I have received and considered the submissions made by the parties. I do not consider that a hearing is necessary to deal with this matter or that it would be appropriate in all the circumstances.
5. Section 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." (Emphasis added)

6. It appears to be a widely held view that the power of the High Court to grant permission to appeal to the Court of Appeal under this sub-section no longer obtains given section 55(1) of the Access to Justice Act 1999 ("the 1990 Act") and CPR 52.13.

(i) the effect of section 55 of the Access to Justice Act 1999

7. Section 55(1) of the 1999 Act provides that:

"(1) Where an appeal is made to the county court, the family 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 may 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."

8. As Brooke LJ stated in Clark (Inspector of Taxes) v Perks and related applications [2001] 1 WLR 17 at [13], section 55(1) applies to appeals inter alia "from any tribunal or other body or person". It is potentially capable, therefore, of applying when an appeal to the High Court was one from the Secretary of State. Lewis J has stated (extra-judicially) in Judicial Remedies in Public Law (2013) 5^th ed at [14-063, 14-064] that, under section 289 of the 1990 Act, "there may be a further appeal to the Court of Appeal but only with the permission of that Court", apparently on the basis that such an appeal is a "second appeal" for the purpose of section 55(1) of the 1999 Act.
9. In my judgment section 55(1) of the 1999 Act has not deprived the High Court of jurisdiction to grant permission to appeal to the Court of Appeal in proceedings under section 289 of the 1990 Act.
10. When section 55 was enacted, there were statutory provisions under which appeals could be made to the Court of Appeal only with the permission of the High Court or Court of Appeal. Schedule 15 to the 1999 Act contained a number of repeals consequential on the changes to the law made by that Act. One such repeal was the repeal of the provision in section 375(2) of the Insolvency Act 1986 permitting an appeal to the Court of Appeal from a decision of the High Court on an appeal from the county court or the registrar in bankruptcy "with the leave of the judge or Court of Appeal". As Waller LJ (with whom Swinton Thomas LJ agreed) stated in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd [2001] 1 QB 388 ("the Henry Boot case") at p401c-d, "the effect of the repeal of the particular words is that section 55 would then appear to apply...[so that an] appeal to the Court of Appeal will lie only with permission of the Court of Appeal." Waller LJ added (at p401d-h) that:

"It seems that there are provisions similar to section 375(2) of the Insolvency Act 1986 with words similar to those now repealed in the following 10 other statutes:....[which included] section 97(3) of the Patents Act 1977 (the Patents Court being part of the Chancery Division of the High Court: see section 6 of the Supreme Court Act 1981); section 65(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990; [and] section 289(6) of the Town and Country Planning Act 1990.....Schedule 15 could have contained repeals of the words "the court or the Court of Appeal" in all those sections if it had been intended that section 55 would now cover second tier appeals in so far as they were appeals from the relevant tribunals under the above Acts to the court and from the court to the Court of Appeal. It is noteworthy that all those sections deal with circumstances where the first tier decision was of a tribunal or person, not a court. One answer may be that those sections have by implication been repealed, but the alternative is that the decision not to make the alteration was deliberate, and it was intended that section 55 should simply apply to second tier appeals where the first hearing was before a court."

11. In the Henry Boot case the Court of Appeal had to consider the effect of section 55(1) of the 1999 Act on section 69(8) of the Arbitration Act 1996 under which an appeal to the Court of Appeal was possible only with the permission of the High Court. That section had not been expressly repealed by the 1999 Act. Having considered the principles for determining if a provision has been repealed by implication, the Court of Appeal held that section 69(8) had not been repealed by implication. As Waller LJ gave four reasons for that conclusion (at p403a-b) including:

"(1) the indications are that Parliament did not intend that all second tier appeals would require the permission of the Court of Appeal in any event where the first tier was not a court but a tribunal; (2) where there was an intention to repeal a provision inconsistent with section 55 Parliament did so expressly; (3)...; (4) section 55 is a general provision not intended to affect section 69(8) of the Act of 1996 which gave individual treatment to appeals from arbitrators."

The last of these points reflects the general principle that, where the literal meaning of a general enactment covers the situation for which specific provision is made in an earlier enactment, it is presumed that the situation is intended to continue to be dealt with by the specific provision rather than the later general one and that the earlier specific provision is not to be treated as impliedly repealed.

12. The Court of Appeal had subsequently to consider the effect of section 55 of the 1999 Act on section 97(3) of the Patents Act 1977, one of the provisions that Waller LJ had noted had not been repealed by the 1999 Act, in Smith International Inc v Specialised Petroleum Services Group Ltd [2005] EWCA Civ 1357, [2006] 1 WLR 252 ("Smith International Inc"). This subsection permitted an appeal to the Court of Appeal from a decision by the Patents Court on an appeal to it from a decision of the Patent Office Comptroller only "if leave to appeal is given by the Patents Court or the Court of Appeal". The Court of Appeal held that the power of the High Court to give permission to appeal to the Court of Appeal had not been repealed by implication as a result of section 55(1) of the 1999 Act. Mummery LJ giving the judgment of the Court, following the approach of the Court in the Henry Boot case, relied both on the general principle governing implied repeals (to which I have referred) and on the fact that a provision similar to section 97(3) had been repealed in Schedule 15 of the 1999 Act, namely section 42(3) of the Courts and Legal Services Act 1990 that permitted an appeal to the Court of Appeal with the permission of the High Court or Court of Appeal where the appeal to the High Court had been from a tribunal.
13. In my judgment the reasoning in these two cases in the Court of Appeal is equally applicable in the case of section 289(6) as it was in those cases. The 1999 Act did not repeal the specific provision in section 289(6) that no appeal to the Court of Appeal may be brought against the decision of the High Court on an appeal under that section "except with the leave of the Court of Appeal or of the High Court". In my judgment section 55 of the 1999 Act did not revoke or amend the power of the High Court to grant leave to appeal to the Court of Appeal under that subsection by implication. There is a now a strong presumption against implied repeal: H v Lord Advocate [2012] UKSC 24, [2013] 1 AC 413, see per Lord Hope DPSC (with whom Baroness Hale, Lord Kerr, Lord Brown and Lord Wilson JJSC and Lord Judge CJ agreed) at [30]. The requirement to obtain permission to appeal to the Court of Appeal against a judgment or order of the High Court in proceedings under section 289 of the 1990 Act remains governed by section 289(6), the specific provision that Parliament enacted to govern such appeal. It is not governed by the provision generally applicable to second appeals contained in section 55(1) of the 1999 Act.

(ii) the effect of CPR 52.13

14. CPR 52.13 provides that:

"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of the County Court or the High Court which was itself made on appeal.

(2) The Court of Appeal will not give permission unless it 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."

15. It is stated in paragraph [289.27] of the Encylopedia of Planning Law that "under the Civil Procedure Rules, Pt 52, the High Court has lost the power to grant permission...Pt 52, r.52.13 therefore applies". Others have also expressed the view that the High Court's power to grant permission has been "restricted...by the Civil Procedure Rules": see Richard Harwood Planning Enforcement (2013) 2^nd ed at [8.20].
16. No authority is cited for these contentions in those works and the parties have not drawn my attention to any authority that supports them. In R (Connaught Quarries Limited) v Secretary of State for the Environment, Transport and Regions [2001] EWHC Admin 76 (which, despite the title of the case, in fact involved an appeal under section 289 of the 1990 Act) Elias J (as he then was) expressed the view, during an exchange with counsel (at [65]), that he "would have thought that the rules would not apply where statute has otherwise laid down specific provisions". But, since he refused permission to appeal on the merits and would have adjourned to look at the point properly had he been minded to grant permission, I derive little assistance from that observation. In the First Respondent's submissions it was stated that the approach set out in the Encylopedia of Planning Law has recently found favour with Holgate J in Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin). It appears, however, that no judgment was given by him in that case on this point, as counsel for the parties agreed that permission to appeal to the Court of Appeal could only be granted by that court, not the High Court.
17. In Smith International Inc at [16], the Court of Appeal rejected a submission that the effect of section 55(1) of the 1999 Act was to superimpose an additional requirement that the permission of the Court of Appeal had also to be obtained in accordance with CPR r52.13, even in a case where the High Court, which heard the first appeal, had already granted permission to appeal to the Court of Appeal. As Mummery LJ put it,

"that interpretation of section 55 would effectively deprive the High Court of the power conferred...to grant permission to appeal to the Court of Appeal. A permission, which it had jurisdiction to grant, would have no real content or meaning. It would not be an effective "permission to appeal" at all, if the applicant for permission also had to obtain from the Court of Appeal a second permission, which could only be given by the Court of Appeal if the more stringent requirements for granting permission to appeal were satisfied."

18. The Court of Appeal did not consider in that case, however, whether the effect of CPR 52.13 was to amend, repeal or revoke that part of the subsection in issue giving the High Court the power to grant permission to appeal. But its decision in that case, that the High Court retained its power to grant permission to appeal, however, is inconsistent with that rule having that effect.
19. In my judgment CPR 52.13 does not deprive the High Court of any power to grant permission to appeal to the Court of Appeal in the case of a "second appeal" which it has by virtue of a specific enactment. The Civil Procedure Rules Committee had no power, and did not purport, to do so.
20. CPR 52.13 was introduced by the Civil Procedure (Amendment) Rules 2000: see rule 19 and Schedule 5 of SI 2000/221. These rules were made by the Civil Procedure Rule Committee under section 1 of the Civil Procedure Act 1997. Such rules may govern the practice and procedure of the High Court and the civil division of the Court of Appeal. But, as delegated legislation, such rules may not amend primary legislation without specific statutory authority. The Civil Procedure Rules Committee had no power to make rules under this provision amending, repealing or revoking any enactment. Any amendment, repeal or revocation of any enactment that may be necessary or desirable to facilitate the making of civil procedure rules or in consequence of such rules is a matter that the Lord Chancellor may effect by an order made under section 4 of that Act. In the Henry Boot case, Arden J (as she then was) considered that words in primary legislation giving a court power to grant permission to appeal to the Court of Appeal "may be capable of repeal by order consequential on the making of CPR r 52.13" by the Lord Chancellor under section 4 of the 1997 Act: see [2001] QB 388 at p405d. But, whether or not that is so, no such order has been made.
21. Section 54 of the 1999 Act provides that rules of court may provide that any right to appeal to the Court of Appeal may be exercised only with permission and that such rules may make provision as to the court or courts which may give permission for the purposes of that section. An appeal to the Court of Appeal in proceedings under section 289 of the 1990 Act do not fall within the scope of this provision. The requirement for permission to exercise the right to appeal to the Court of Appeal conferred by section 16 of the Senior Courts Act 1981 against a judgment or order of the High Court that is given under section 289 of the 1990 Act does not arise from rules made under section 54. It arises from the requirement imposed by section 289(6) of the 1990 Act itself.
22. In any event, however, even if the Civil Procedure Rule Committee had the power to amend or revoke section 289(6) of the 1990 Act, the Committee did not purport to do so. On the contrary, as CPR 52.1.4 provides, "this Part is subject to any...enactment….which sets out special provisions with regard to any particular category of appeal." Section 289(6) of the 1990 Act is such an enactment.
23. In my judgment, therefore, CPR 52.13 itself does not amend, repeal or revoke that part of section 289(6) of the 1990 Act giving the High Court the power to grant permission to appeal. Nor does it restrict the exercise by the High Court of its power to give permission to appeal to the Court of Appeal under that subsection.

(iii) conclusion

24. An order granting permission to appeal to the Court of Appeal that the High Court has no power to grant is a nullity: see per Brooke LJ Clark (Inspector of Taxes) v Perks and related applications supra at [15]. If the grant of permission in this case had been a nullity, I would have been minded to exercise the power in CPR 3.1(7) to vary the order I made in order to revoke that permission and to extend the time available to the Appellant to file an appellant's notice at the Court of Appeal, as the Respondent has no right to appeal to the Court of Appeal against any grant of permission to appeal under the rule in Lane v Esdale [1891] 1 AC 210 as explained in in re Housing and Working Classes Act 1890 [1892] 1 QB 609 CA: see eg Kemper Reinsurance Co v Minister of Finance and others [2001] 1 AC 1 per Lord Hoffmann at p12-13; Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370, [2013] JPL 1183.
25. But, for the reasons given above, in my judgment the High Court still has power to grant permission to appeal to the Court of Appeal in proceedings under section 289 of the 1990 Act. Accordingly I shall not revoke the permission I granted in this case.
26. The Appellant has sought an order that the First Respondent should pay costs incurred in dealing with this matter to be summarily assessed in the sum of £300 plus VAT. The First Respondent resists that application on the ground that it initially made no application for any order and that it had only sought "to assist the Court by bringing an important issue to the Court's attention". In my judgment, however, as the Appellant contends, the First Respondent in effect made an application for the court to vary its order so as to revoke the permission to appeal that the Appellant had been granted. The First Respondent's e-mail was not sent simply to educate or inform the court about the law. The inevitable result was that the Appellant would have to be given the opportunity to make submissions (which he has done) on whether the permission that he had been granted and had exercised to appeal to the Court of Appeal was a nullity and should be revoked. Notwithstanding the fact that in the First Respondent's subsequent submissions no specific request was made for any particular order, in the circumstances I consider that it is just that the First Respondent should pay the Appellant £300 in respect of his costs plus VAT thereon.