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Court of Appeal declines to overturn rule that no right of appeal lies against refusal of leave to appeal Planning Inspector’s decision on a s. 174 enforcement notice appeal

Mark Lowe QC, Estelle Dehon and Jack Parker have appeared in the Court of Appeal in Walsall MBC and Dartford BC v The Secretary of State for Communities and Local Government, Vodafone Limited and Telefonica Limited [2013].

The Court of Appeal (Pill LJ, Sullivan LJ and Tomlinson LJ) upheld the rule that where a High Court Judge refuses leave to appeal under s. 289(6) of the Town and Country Planning Act 1990 against the decision of an Inspector in an appeal against an enforcement notice under s. 174 TCPA 1990, that refusal of leave cannot be the subject of an appeal to the Court of Appeal.

The "rule against s. 289 leave appeals" was the subject of a previous Court of Appeal decision in Wendy Fair Markets Limited v Secretary of State for the Environment [1995] LGLR 769. The Court in that case had found that the Court of Appeal did not have jurisdiction to hear the appeal against the refusal of leave by reason of the principle in Lane v Esdaile [1891] AC 210, that refusals of leave to appeal were neither an "order", nor "judgment" within the meaning of section 16 of the Senior Courts Act 1981, which provided the statutory basis for the Court of Appeal's jurisdiction. The Court in Wendy Fair had also upheld the rule on policy grounds, on the basis that it was intended to deter frivolous and unmeritorious appeals on the part of those who 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 carry out the act prohibited by the enforcement notice.

The Court of Appeal is bound by its own decisions, unless one of a number of specified exceptions applies, as laid out in Young v Bristol Aeroplane Co Ltd [1944] KB 718.

The appellants in this case argued that:

(1)   The decision in Wendy Fair was per incuriam (decided without reference to relevant statute or case law) on the basis that the Court in Wendy Fair had failed to consider the effect of s. 289(4A) TCPA 1990, which allowed an enforcement notice to continue to be effective until the determination of the appeal process. Section 289(4A) prevented s. 289 from being the subject of the abuse described above and this justification for the rule against leave appeals therefore fell away.

(2)  Since Wendy Fair had been decided, the Court of Appeal, House of Lords and Supreme Court had all recognised exceptions to the "absoluteness" of the principle in Lane v Esdaile (in the context of judicial review and Arbitration appeals under s. 69 of the Arbitration Act 1996, for example). As such, it was necessary to revisit Wendy Fair and to recognise an exception to the Lane v Esdaile principle in respect of s. 289 TCPA 1990.

(3)  The availability of a single leave application against the decision of an inspector failed to guarantee the ECHR Article 6 right to review by an independent and impartial Tribunal.

Sullivan LJ, who gave judgment, found that the Court was bound by the decision in Wendy Fair. The failure of that Court to consider s. 289(4A) TCPA was "unsurprising" as s.289(4A) did not provide a complete answer to the problem of unmeritorious and frivolous appeals, not least because s. 289(4A) may require a local planning authority to give an undertaking in damages.

Secondly, although other courts had recognised exceptions to the principle that refusals of leave to appeal could not themselves be appealed, this was only where the court had recognised a "residual jurisdiction" to deal with unfairness, misconduct or mischance. The Lane v Esdaile rule itself had been repeatedly upheld. No allegation of unfairness or misconduct was alleged in this case. Judicial Review, although akin to the s. 289 requirement for leave, was different to the statutory scheme which had been intended by Parliament to operate in the way that it did.

Finally, the appellate process under s. 289, when considered as a whole, was Article 6 compliant. Although consideration by an Inspector did not of itself comply with Article 6, an Inspector had to act judicially and the possibility of applying for leave to a High Court judge provided a sufficient measure of judicial control to ensure fairness.

Estelle Dehon, instructed by Dartford Borough Council, acted for the second appellant. Mark Lowe QC and Jack Parker, instructed by Wragge and Co LLP, acted for the first interested party, Vodafone Ltd.