Practice Update – Appealing a Section 289 decision to the Court of Appeal
As a result, it was thought that the High Court did not have the power to grant permission to appeal to the Court of Appeal, and that those seeking to make such an appeal had to approach the Court of Appeal directly.
The position has now been clarified by the High Court in Miaris v SSCLG  EWHC 2094 (Admin), in which Estelle Dehon appeared for the Secretary of State. John Howells QC, sitting as a deputy High Court Judge, held that the High Court does have the power to determine whether permission should be granted to appeal to the Court of Appeal, and this power is unrestricted by CPR 52.1.4. In so doing, he specifically rejected the contrary approach, advocated in paragraph 289.27 of the Encyclopaedia of Planning Law. The Judge held that section 55 of the Access to Justice Act 1999 does not impliedly repeal the plain wording in section 289(6) TCPA 1990, which provides that: “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).
The Judge followed the approach of the Court of Appeal in Smith International Inc v Specialised Petroleum Services Group Ltd  EWCA Civ 1357, which dealt with a comparable provision in the Patents Act 1977 concerning the power of the Patents Court to grant permission to appeal to the Court of Appeal. In that case, Mummery LJ relied the 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provision rather than the later general one and that the earlier specific provision is not to be treated as impliedly repealed.
The judgment in Miaris will likely also apply to appeals concerning listed building enforcement notices under section 65(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which is in the same terms of section 289(6) TCPA 1990.
A copy of the procedural judgment in Miaris is available here. The background to the case can be found in the update concerning the substantive decision – Miaris v SSCLG  EWHC 1564 (Admin), available here.