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||Neutral Citation Number:  EWCA Civ 370
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EDER)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||6th February 2013
B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE SULLIVAN
LORD JUSTICE TOMLINSON
||WALSALL METROPOLITAN BOROUGH COUNCIL
||- and –
||SECRETARY OF STATE FOR
||COMMUNITIES AND LOCAL GOVERNMENT & ORS
||DARTFORD BOROUGH COUNCIL
||- and –
||SECRETARY OF STATE FOR
||COMMUNITIES AND LOCAL GOVERNMENT & ORS
(DAR Transcript of
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Mr Philip Coppel QC (instructed by Walsall MBC) appeared on behalf of the 1st Appellant
Miss Estelle Dehon (instructed by Sharpe Pritchard) appeared on behalf of the 2nd Appellant
Mr James Strachan (instructed by the Treasury Solicitor) appeared on behalf of the 1st Respondent
Mr Mark Lowe QC and Mr Jack Parker and Miss Emma Harling-Phillips (instructed by Wragge & Co) appeared on behalf of the 2nd Respondent
Mr Christopher Boyle (instructed by Lawrence Graham) appeared on behalf of the 3rd Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Sullivan:
- The applicants, Walsall Metropolitan Borough Council and Dartford Borough Council, seek permission to appeal against the order dated 10 May 2012 of Mr Justice Eder refusing their applications for permission to appeal to the High Court under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against decisions by two planning inspectors allowing appeals by the second and third respondents under section 174 of the 1990 Act and quashing enforcement notices issued by the two local planning authorities. Eder J heard the two applications for permission to appeal under section 289 together on 10 May, and his decision that both applications for permission to appeal were not arguable is contained in a judgment of the same date,  EWHC 1756 (Admin). On consideration of the papers, I directed that the applications for permission to appeal should be listed for hearing on notice to the respondents to consider whether this court has jurisdiction to consider the applications.
The Legislative Scheme
- A person having an interest in the land to which an enforcement notice relates may appeal to the Secretary of State against the notice on the grounds set out in section 174(2) of the 1990 Act. Section 175(4) provides that:
"Where an appeal is brought under section 174 the enforcement notice shall subject to any order under section 289(4A) be of no effect pending the final determination or the withdrawal of the appeal."
Section 174 is in part VII of the Act. Section 285(1) provides:
"The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."
Section 289, so far as relevant, provides as follows:
"(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide, either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court.
(3) At any stage of the proceedings on any such appeal as is mentioned in subsection (1), the Secretary of State may state any question of law arising in the course of the proceedings in the form of a special case for the decision of the High Court.
(4) A decision of the High Court on a case stated by virtue of subsection (3) shall be deemed to be a judgment of the court within the meaning of section 16 of the Senior Courts Act 1981 (jurisdiction of the Court of Appeal to hear and determine appeals from any judgment of the High Court).
(4A) In proceedings brought by virtue of this section in respect of an enforcement notice, the High Court or, as the case may be, the Court of Appeal may, on such terms if any as the Court thinks fit (which may include terms requiring the local planning authority to give an undertaking as to damages or any other matter), order that the notice shall have effect, or have effect to such extent as may be specified in the order, pending the final determination of those proceedings and any re-hearing and determination by the Secretary of State.
(6) 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."
- Section 289 was amended by the Planning and Compensation Act 1991 ("the 1991 Act"). The amendments included the introduction of subsection (4A), and the substitution of a new subsection (6). As originally enacted, subsection (6) had provided that:
"No appeal to the Court of Appeal shall be brought by virtue of this section except with the leave of the High Court or the Court of Appeal."
- The notes to section 289 in the Encyclopaedia of Planning Law and Practice explain that the new requirement in subsection (6) that an appeal to the High Court under section 289 might be brought only with the permission of the court was proposed by Robert Carnwath QC (as he then was) in his report Enforcing Planning Control (February 1989). Section 16(1) of the Senior Courts Act 1981 ("the 1981 Act") makes provision for appeals from the High Court to the Court of Appeal as follows:
"Subject as otherwise provided by this or any other Act ... the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."
- On behalf of Walsall, Mr Coppel QC, whose submissions were adopted by Ms Dehon on behalf of Dartford, submitted that, if the jurisdictional issue had not been answered by authority, it was plain that Eder J's decision refusing the applicants permission to appeal under section 289 was contained in an order of the High Court and his reasons for making that order were to be found in his judgment. Thus there was both a "judgment" and an "order" of the High Court for the purposes of section 16 of the 1981 Act, against which the applicants could appeal to this court. However, he recognised that the question whether a decision of a High Court judge refusing permission to appeal under section 289 was, for the purposes of section 16 of the 1981 Act, to be treated as a judgment or order of the High Court, against which an appeal would be made to the Court of Appeal, had been answered by this court in Wendy Fair Markets Limited v SSE  159 LGLR 769 ("Wendy Fair"). In Wendy Fair, the Court (Sir Thomas Bingham MR, Kennedy and Millett LJJ) rejected the applicant's submission that a High Court judge's decision refusing permission to appeal under section 289 fell within section 16 of the 1981 Act. The Master of the Rolls, with whom Kennedy and Millett LJJ agreed, said this at pages 771 to 772:
"The difficulty which faces her with that submission is that although, as Miss Ellis rightly observes, none of the reported cases have arisen in the planning field, there is a considerable body of authority which makes it plain that appeals against refusals of leave to appeal to the court below are not something which the higher court has jurisdiction to entertain. The relevant line of authority begins with Lane v Esdaile (1891) AC 210, continues through Ex Parte Stevenson (1892) 1 QB 609, embraces Bland v Chief Suppelentary Benefit Officer  1 WLR 262, and perhaps ends with Geogas SA v Tammo Gas Ltd  1 WLR 776. Those authorities make plain that a decision of this kind refusing leave to appeal to the court below does not give rise to an order or judgment of a kind which can be challenged in the court above. The matter was clearly put by Fry J in Ex parte Stevenson at p.611, where he said:
'The Judicature Act has given a general right of appeal to this court from judgments and orders of the High Court or any Judge or Judges thereof. The question is whether that provision applies to a refusal of leave to submit the question of compensation to a jury under this Act.'
He concluded that the sort of question which arises in this instance is not such as can give rise to jurisdiction to entertain an appeal by the superior court, and he described the object of the legislation at p.612 as being to make the grant or refusal of leave final. The same point was made by Sir John Donaldson MR in Bland v Chief Supplementary Benefit Officer at p.267 where, referring to s. 14 of the Social Security Act 1980, he said:
'... I would accept that in a sense the grant or refusal of leave to appeal to the Commissioner is a decision, just as in Ex parte Stevenson  1 QB, 609 it was accepted that the grant or refusal of leave to appeal was an order of the High Court, but it is not the kind of decision which, in my judgment, s.14 contemplate.'
Very much the same point was made by the House of Lords in the most recent case, which is Geogas.
Miss Ellis urged that a purposive approach is appropriate in considering the combined effect of s.16(1) and s.289(6). I agree with that, although I am bound to say that adopting a purposive approach is in my judgment fatal to her argument. All the cases have emphasized that the requirement of leave is intended to deter frivolous or unmeritorious appeals and that this object would be frustrated were the refusal of leave itself to be the subject of appeal. As Lord Jauncey observed in Geogas SA. v Tammo Gas Ltd at p.780H with reference to s.1 of the Arbitration Act 1979:
'No appeal lies to the Court of Appeal unless the High Court or Court of Appeal gives leave. The legislative intention of limited review would be rendered nugatory if appeals were to lie to the Court of Appeal and then to this House against a decision of a Judge refusing or granting leave to appeal an award to the High Court and if an appeal were to lie against a decision of the Court of Appeal to refuse or grant leave to appeal from the High Court to itself under s.1(7).'
That observation is I think entirely consistent with the purposive construction which has been put on similar provisions in all the cases that I have mentioned.
Miss Ellis did contend, in looking at s.289, that it would lead to the risk of discrepancy and inconsistent decisions if an appeal could be brought without any leave at all under s.288 but a refusal of leave could not be challenged under s.289. For my part, I consider that the answer to that submission is the answer Mr Richards gives on behalf of the Secretary of State, which is that there is a plain disparity between the two sections. One imposes a requirement of leave; the other does not. The legislature must have intended the procedures to be different, because the provisions of the two sections are different, and I cannot see any intention that there should be less dissimilarity between these two sections than the language would itself suggest.
The second main argument which Miss Ellis advanced was based on s.289(6) itself. She submitted that on a plain reading this conveyed the impression that there was intended to be a right of appeal to the Court of Appeal against any decision of the High Court, and that accordingly one should give effect to that legislative intention. She did suggest that it was a matter of impression, and I am bound to say, for what it is worth, that my own impression is unfavourable to her submission. But I think that there are powerful reasons for holding as a matter of construction that her submission is wrong. The first is, as initially drafted before the amendment, subs.(6) cannot have been intended to embrace an appeal against the refusal of leave by the High Court, because there was then no requirement to obtain leave from the High Court. She is therefore obliged to say that the second half of the subsection bears a different meaning after the amendment from the meaning it bore before. There, however, are additional points, one of which is that when the legislature wished to make it clear that a decision was to be regarded as a decision falling within s.16 of the Supreme Court Act 1981, that was made plain as in the case of subs.(4). Furthermore, it would appear to me right to assume that, when subs.(6) was drafted, the parliamentary draftsman responsible for the provision would have been well aware of the meaning which had for a hundred years been put on a provision of this kind by courts at all levels. In other words, it must have been appreciated that if leave to appeal were refused by the High Court there would be no jurisdiction in the Court of Appeal to entertain an appeal against that refusal of leave. . Therefore, well though Miss Ellis developed her arguments, it appears to me impossible on the strength of those arguments alone to accept the conclusion that she would urge upon us."
In response to submissions made by counsel on behalf of Mr Huggett, another applicant for permission to appeal, the Master of the Rolls said that he did not find subsection (6) of section 289 to be ambiguous and added:
"...I have no doubt that the legislature felt that it was safe to rely on the threshold test, given that a High Court Judge, if asked to give leave on a question of law, will be bound to give it if he thought there was a seriously arguable point. For my part, I am quite unpersuaded that Parliament intended that there should be any further right of challenge in a case where a High Court Judge, having considered the matter, had concluded that there was no arguable point of law which merited the grant of leave."
The Master of Rolls concluded his judgment with these words:
"There were other matters touched on, both in argument and in the course of written submissions, but it is plain for the reasons I have given that in my judgment, there is nothing in s.16 or in s.289(6) which confers a right of appeal to this court against the refusal of leave to appeal to the High Court. There is a great weight of authority which makes plain that such an application is not to be entertained by this court. I respectfully think that the policy reasons which had been adumbrated are very strongly in favour of restricting rights of appeal in this class of case, given the factor I have already mentioned that High Court Judges will be bound to give leave in any case that they regard as arguable."
The policy reasons underlying the amendment of subsection (6) are to be found on page 770 of the Master of the Rolls' judgment:
"We have been told, and there is no reason to doubt, that the reason why subsection (6) was amended to introduce a requirement of leave to appeal against an enforcement notice to the High Court was because the unrestricted right of appeal to the High Court on a point of law has become the subject of abuse by those who are subject to enforcement notices and 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 do that which the enforcement notice treated as prohibited. When the lists of the Crown Office were subject to very considerable delay this was an obvious loophole available to unscrupulous advocates. Accordingly, as a means of providing a filter to prevent the bringing of wholly unmeritorious appeals, the subsection was amended so as to provide that leave was needed for an appeal to the High Court as well as for an appeal from the High Court to the Court of Appeal."
- Mr Coppel submitted that these policy issues were overstated, and in any event now had less force. They were overstated because subsection (4A) addressed the problem of appellants against enforcement notices making groundless appeals under section 289 simply in order to postpone the coming into effect of the enforcement notice. Moreover, since Wendy Fair was decided, the Civil Procedure Rules had come into force, and permission was now required to appeal from the High Court to the Court of Appeal; see CPR 52.3. Thus the Court of Appeal was able to filter out unmeritorious and time-wasting appeals by refusing permission to appeal from the High Court.
- I am not persuaded that the policy reasons referred to by the Master of the Rolls in Wendy Fair, nearly 18 years ago now, are of any less force today. Subsection (4A) addressed the problem of abusive of appeals under section 289, but it is clear that Parliament, when enacting the 1991 Act, did not consider that the new subsection (4A) provided a sufficient answer to the problem. It is not difficult to understand why that might have been so. Planning authorities might well be reluctant to incur a potential financial liability if they were required to give an undertaking in damages. Moreover subsection (4A) does not prevent an appellant from bringing unmeritorious appeals under section 289. It applies in proceedings that have been brought under that section. That, no doubt, is why Parliament accepted the recommendation in Enforcing Planning Control, and introduced a further provision that leave was needed to bring proceedings in the High Court under section 289.
- The Civil Procedure Rules have, of course, made many significant procedural changes. Prior to the coming into force of the Civil Procedure Rules, there was no general requirement that permission was required to appeal from the High Court to the Court of Appeal, and that undoubtedly resulted in a considerable burden on the Court of Appeal. But this was not a problem in enforcement notice cases, because section 289(6) (as originally enacted) provided that no appeal could be brought to the Court of Appeal from a decision of the high Court under section 289 without the leave of either the High Court or the Court of Appeal. Thus, the procedural amendments that have been brought about by the introduction of the Civil Procedure Rules do not lessen the need for the further filter mechanism that was introduced by the amended subsection (6), namely the requirement of leave from the High Court for the bringing of proceedings under section 289 in the High Court. The policy reasons for that additional procedural requirement are, in my view, as strong now as they were found to be in 1995. I note that in Prashar v SSE  EWCA Civ 1231, Kay LJ followed Wendy Fair, and he did so having considered the effect of the procedural changes made by the CPR. He concluded that the Court of Appeal had no jurisdiction to consider applications for permission to appeal against refusals of leave to appeal under section 289(6). The correctness of the decisions in Wendy Fair and Prashar has not hitherto been questioned.
- Mr Coppel invited us to "revisit" Wendy Fair, but we are bound by that decision unless it falls within one of the categories of case identified in Young v Bristol Aeroplane Company Limited  1 KB 718, in which this court may depart from one of its own previous decisions. In the well-known passage at page 725 to 726, Lord Greene MR said:
"In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment."
- Although Mr Coppel cited Rickards v Rickards  Fam 194, in which Lord Donaldson MR said that the Court of Appeal could depart from an earlier decision in those "rare and exceptional cases" where the court was "satisfied that the decision involved a manifest slip or error", he was not so bold as to submit that there had been a "manifest slip or error" in the Master of the Rolls' judgment in Wendy Fair. On reading the applicants' skeleton arguments, and their written points of reply to the respondent's skeleton arguments, it was not clear, at least to me, whether it was being submitted that Wendy Fair had been decided per incuriam. I have set out extensive quotations from the Master of the Rolls' judgment in that case, and it is very difficult to see how it could be said that such a full and carefully considered judgment was given per incuriam. It is not submitted that the court overlooked any relevant authority, nor, subject to one exception, is it submitted that it overlooked any relevant enactment.
- The one exception is this. In his oral submissions, Mr Coppel contended that the court's judgment was per incuriam because the Master of the Rolls had not mentioned subsection (4A) of the 1990 Act. However, that submission depends for its force on the applicant's proposition that subsection (4A) was the answer to the problem of abusive appeals. For the reasons I have given above, subsection (4A) was at best a partial answer to that problem, and it is clear that Parliament did not consider that it was a complete answer; hence the amendment to subsection (6) to introduce the filter mechanism with which the court in Wendy Fair was concerned.
- In these circumstances, the fact that subsection (4A) was not referred to in the Master of the Rolls' judgment in Wendy Fair is not in the least surprising, and it most certainly does not mean that the judgment was per incuriam. If the decision in Wendy Fair was not per incuriam, into which of the other three classes of case identified in Young v Bristol Aeroplane Company does this case fall? As a matter of first impression, it falls squarely within the first class. Wendy Fair has been followed by this court in Prashar, and there is no conflicting decision which deals with the position under section 289(6). Mr Coppel submitted that the case falls within the second and/or the third class, because there were conflicting decisions, and in any event the decision in Wendy Fair was not consistent with subsequent decisions of the House of Lords and the Supreme Court. The "conflicting" decisions were said to be decisions in which the Court of Appeal had recognised exceptions to the Lane v Esdaile principle, which was the basis of the court's decision in Wendy Fair (see the Master of the Rolls' judgment at page 771 cited above).
- The subsequent decisions of the House of Lords and the Supreme Court with which Wendy Fair was said to be inconsistent were decisions in which the "absolute principle" in Lane v Esdaile had not been applied. I will deal with these two groups of cases in turn. It is true that subsequent decisions of this court have recognised that it has a "residual jurisdiction" to set aside a judge's decision refusing leave to appeal under section 69(8) of the Arbitration Act 1996, and to that extent Mr Coppel can submit that the rigour of the Lane v Esdaile principle has been tempered by this court. But it is important to see the extent to which the court has been prepared to temper the principle. In North Range Shipping Limited v Seatrans Shipping Corporation  EWCA Civ 405,  4 All ER 390, Tuckey LJ said at paragraph 14 of his judgment:
"If, as is accepted, there is a residual jurisdiction in this court to set aside a judge's decision for misconduct then there can be no reason in principle why the same relief should not be available in a case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself."
- The distinction between a challenge to the judge's decision-making process and a challenge to the merits of the judge's decision to refuse leave to appeal is echoed in another of the authorities relied upon by Mr Coppel, CGU International Insurance Plc & Ors v Astrazeneca Insurance Co Ltd  EWCA Civ 1340. In paragraph 38 of his judgment in that case, Rix LJ said:
"Subject to the question of a residual jurisdiction in cases where what is in question is not a review of the commercial judge's discretion (which as I have said there is common ground cannot be the subject matter of an appeal from a refusal of leave under section 69(8)) but a matter of unfairness, I do not consider any of this to be now capable of dispute."
Rix LJ returned to this distinction in paragraphs 46 and 47 of his judgment, with which Longmore LJ and the Master of the Rolls agreed:
"46. I am not here concerned with the width of judicial review, but with the distinction between a decision on the merits, right or wrong, and the process by which the decision is supposedly taken, adequate or flawed by unfairness.
47. In my judgment, the dictum of Mustill LJ demonstrates, even before the Human Rights Act, the limits of the Lane v Esdaile principle, and the need for a residual jurisdiction to deal with misconduct or unfairness (or even mischance) in the decision-making process ..."
- It seems to me that far from casting doubt on the continued applicability of the Lane v Esdaile principle, as it was applied by this court in Wendy Fair, these more recent decisions of the Court reaffirm the continued existence of the principle, subject to a "residual jurisdiction" which does not apply in the circumstances of the present case. There is no criticism of the process by which Eder J reached his decision to refuse permission to appeal under section 289. In particular, there is no suggestion of misconduct or unfairness, or indeed or mischance. After an oral hearing at which the applicants were able to and did put their submissions as to why the two Inspectors had erred in law in allowing the respondent's appeals against the enforcement notices, Eder J gave a careful judgment explaining why he had come to the conclusion that the applicants' cases were not arguable. The challenge before us is to the merits of Eder J's decision to refuse permission to appeal, and not the process by which he arrived at that decision. I am not persuaded, therefore, that this case falls into the second class of cases referred to in Young v Bristol Aeroplane Company.
- Does it fall within the third class? Mr Coppel referred us to a number of cases in which he submitted the House of Lords or the Supreme Court had not applied the "absolute rule" in Lane v Esdaile. He submitted that the subsequent statements of principle in the House of Lords and the Supreme Court could not be reconciled with this court's approach in Wendy Fair. He relied in particular on the decision of the House of Lords in R (on the Application of Burkett) v LB Hammersmith and Fulham  UKHL 23,  1 WLR 1593, the decision of the Supreme Court in R (Cart) v Upper Tribunal  UKSC 28,  1 AC 663, and the decision of the Privy Council in Kemper Reinsurance Company v Minister of Finance  UKPC 22,  1 AC 1.
- In each of those cases, the court was considering the applicability, or rather the non-applicability, of the Lane v Esdaile principle in the context of proceedings for judicial review. In Burkett, Lord Steyn conveniently summarised the principle in paragraph 11 of his speech:
"... Lane v Esdaile is only authority for the general proposition that whenever a power is given to a court or tribunal by legislation to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive ..."
Lord Steyn then considered whether Lord Diplock had been right to extend that principle to a refusal of leave to apply for judicial review, and concluded that Lord Diplock's ex tempore observation to that effect in In re Poh  1 WLR 2 was not correct. Lord Steyn observed in paragraph 13 of his judgment:
"Nothing in statute law or in Lane v Esdaile  AC 210 provides any support for such a view. Moreover, as Lord Hoffmann pointed out in the Kemper case  1 AC 1, 18B-C, it has never been suggested either before or after the decision in In re Poh that appeals to the Court of Appeal against refusal by the High Court of leave to apply for judicial review is caught by the rule in Lane v Esdaile."
- In Kemper, Lord Hoffmann had said:
"Nevertheless, the limited nature of the ratio decidendi of Lane v. Esdaile as explained by the Court of Appeal in Stevenson's case, the important differences between applications for leave to appeal and applications for leave to apply for judicial review and the long-standing practice of the English Court of Appeal to entertain such appeals have persuaded their Lordships that whatever may have been the reasoning in In re Poh, it is not applicable to this case." (see page 19)
- The high watermark of Mr Coppel's submissions in respect of the third class of case was the decision of the Supreme Court in Cart. Mr Coppel particularly relied on the following passage in the speech of Baroness Hale. At paragraph 37 of her judgment, she said:
"Both tribunals and the courts are there to do Parliament's bidding. But we all make mistakes. No one is infallible. The question is, what machinery is necessary and proportionate to keep such mistakes to a minimum? In particular, should there be any jurisdiction in which mistakes of law are, either in theory or in practice, immune from scrutiny in the higher courts?"
Baroness Hale returned to the issue of judicial fallibility in paragraph 56 of her judgment, where she said:
"But no system of decision-making is perfect or infallible. There is always the possibility that a judge at any level will get it wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. That second judge should always be someone with more experience or expertise than the judge who first heard the case ..."
In Cart, the Supreme Court was considering whether it should be possible to challenge in judicial review proceedings in the High Court a refusal of permission to appeal from the First-tier Tribunal by the Upper Tribunal. Having concluded that the Secretary of State's argument that judicial review had been excluded because the Upper Tribunal was a superior court of record had been "killed stone dead", the Supreme Court went on to consider the basis upon which the High Court should exercise its judicial review jurisdiction in such circumstances.
- All of these authorities emphasise the distinction between the High Court's judicial review powers and its powers on a statutory appeal. They also emphasise the need for decisions by lower courts and tribunals not to be "immune from scrutiny in the higher courts". Mr Coppel rightly submits that in substance, an appellant on a point of law under section 289 will be raising the kind of arguments that he would be able to raise in judicial review proceedings. But the fact remains that Parliament has chosen to provide a statutory appeal process for challenges to enforcement notices on the very comprehensive grounds set out in section 174. It has not rendered Inspectors' decisions under section 174 immune from scrutiny in the higher courts; but it has deliberately excluded a challenge to the validity of an enforcement notice on the grounds set out in section 174 by way of judicial review. The court in Wendy Fair would have been well aware of the fact that in 1995, as is the position now, an applicant for permission to apply for judicial review who is unsuccessful in the High Court can ask the Court of Appeal to reconsider the refusal of permission to apply for judicial review. Although the grounds of challenge may well be somewhat similar, whether a challenge is mounted in a statutory appeal or by way of judicial review, we are concerned with a statutory appeal process, and where there is a statutory appeal process Parliament is able, subject of course to compliance with Article 6 of the European Convention on Human Rights, to which I will turn in a moment, to impose conditions and limitations on the statutory right of appeal. It has chosen to do so in section 289, and the court in Wendy Fair noted the difference in this respect between challenges under section 288 to an Inspector's decision to dismiss a planning appeal, where there is no requirement to retain leave to apply to the High Court to quash the Inspector's decision, and challenges under section 289 to Inspector's decisions on enforcement notice appeals. Although the wording of sections 288 and 289 is somewhat different, the basis on which an Inspector's decision may be challenged in the High Court is the same in substance in both cases, namely that the Inspector has erred in law in allowing or dismissing the appeal.
- Notwithstanding the fact that the nature of the challenge under section 288 or 289 will be the same, and indeed is akin to a challenge on judicial review grounds, the Master of the Rolls in the passage to which I have referred in Wendy Fair accepted that there was "a plain disparity between the two sections. One imposes a requirement of leave; the other does not. The legislature must have intended the procedures to be different, because the provisions of the two sections are different". Thus, there is an inconsistency between the position under section 289 and the position in judicial review proceedings, and between the position under section 288 and 289, but it is an inconsistency which Parliament has deliberately enacted. For these reasons, I am not persuaded that Wendy Fair falls into the third class of cases in Young v Bristol Aeroplane Company.
- Finally, Mr Coppel invited us to revisit Wendy Fair, in order to ensure that the appeal process under section 289 was compliant with Article 6 of the European Convention on Human Rights. He submitted that in order to render the process Article 6 compliant, a second judge should be able to look at the High Court Judge's decision to refuse permission to appeal under section 289 (see by analogy paragraph 56 of Lady Hale's judgment in Cart above). When considering whether an appellate process is Article 6 compliant, it is necessary to consider the process as a whole. In the case of challenges to enforcement notices, that process includes the appeal under section 174 to the Secretary of State, who will in the great majority of cases appoint an Inspector to determine the appeal. That appeal does not of itself satisfy the requirements of Article 6, for the reasons given by the European Court of Human Rights in Bryan v United Kingdom  21 EHRR 342 (a case in which the applicant had been served with an enforcement notice); see paragraph 38 of the court's judgment. However, the court concluded that the ability of the High Court to review the lawfulness of an Inspector's decision meant that the proceedings as a whole were Article 6 compliant. In paragraph 40, the court said:
"As was explained in the Court's Albert and Le Compte v Belgium judgment [...] even where an adjudicatory body determining disputes over 'civil rights and obligations' does not comply with Article 6 para. 1 (art. 6-1) in some respect, no violation of the Convention can be found if the proceedings before that body are 'subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1' (art. 6-1)."
Given the "uncontested safeguards in the procedure before the Inspector", and the nature of disputes in planning and enforcement notice cases, the Court concluded that although the scope of review of the High Court was limited to an appeal on a point of law, it was sufficient to comply with Article 6 (see paragraphs 45 to 47 of the court's judgment).
- Bryan was considered by the House of Lords in R (Alconbury Developments Ltd) v Secretary of State for the Environment  UKHL 23,  2 AC 295. In that case, the relevant decisions had been made not by an Inspector on behalf of the Secretary of State but by the Secretary of State, and moreover the government had an interest in the outcome of the decisions being questioned. Lord Slynn said in paragraph 50 of his judgment:
"50. [...] The legality of the decision and the procedural steps must be subject to sufficient judicial control. But none of the judgments before the European Court of Human Rights requires that the court should have 'full jurisdiction' to review policy or the overall merits of a planning decision. […]"
- Mr Coppel emphasised the need for "sufficient judicial control", and for the court to have "full jurisdiction", and submitted that the ability to ask a single High Court Judge for permission to appeal under section 289 did not give the High Court sufficiently full jurisdiction or a sufficient measure of judicial control. I do not accept that submission. Section 289 gives the High Court "full jurisdiction to review the lawfulness of Inspectors' decisions on an enforcement notice appeal under section 174", and thereby affords sufficient judicial control so as to ensure compliance with Article 6. Subsection (6) does not deprive the High Court of its jurisdiction, it gives the High Court power to ensure that its jurisdiction is exercised in such a manner as to prevent the court's time from being taken up with unarguable cases.
- Such a filter mechanism under which the court regulates access to its own procedures is not, in principle, contrary to Article 6; see for example the European Court of Human Rights' decision in Seal v United Kingdom  54 EHRR 6 at paragraphs 77 and 78. In Seal, the court was considering a procedural filter which prevented the bringing of a claim relating to the exercise of powers under the Mental Health Act 1983 without the leave of the court. The European Court of Human Rights noted in paragraph 78 of its judgment:
"... that the restriction in section 139(2) of the 1983 Act was in the form of an additional procedural requirement before the commencement of a civil claim, and did not grant any immunity from civil proceedings. Further, any request for leave was considered by an independent High Court Judge, and would be granted in the case of a well-founded claim."
In the light of that authority, Mr Coppel conceded that a requirement for leave would not necessarily place an appellate process in breach of Article 6. But he submitted that the rationale for the leave requirement in the Seal case was very different indeed from the rationale in the present case. He submitted that in the context of enforcement notice proceedings, the requirement in section 289(6) to obtain leave meant that the process as a whole was not Article 6 compliant.
- I acknowledge that the two statutory contexts are very different, but it should be noted that the effect of a refusal of leave under section 139(2) of the 1983 Act is to prevent any claim from being commenced at all in respect of the exercise of powers under the 1983 Act. By contrast, in the context of an enforcement notice, an Inspector will have considered the grounds of appeal against the notice under section 174 in an appellate procedure which, although it is not fully compliant with Article 6, does nevertheless contain substantial procedural safeguards for all of the parties.
- In the context of such a statutory procedure, I find it very difficult to see why a requirement that a High Court Judge should consider whether a challenge to the lawfulness of the Inspector's is arguable should mean that the overall process is not Article 6 compliant. The filter requirement in section 289(6) simply enables the High Court, exercising its "full jurisdiction", to make sure that the court's resources are used in an effective way, and time is not wasted on unarguable challenges. For these reasons, I am not persuaded that it is necessary to revisit Wendy Fair in the light of Article 6 of the European Convention on Human Rights. Overall, the process including the leave requirement in section 289(6) is Article 6 compliant.
- For these reasons, I am satisfied that we are bound by Wendy Fair, and I would refuse this application for permission to appeal on the basis that we have no jurisdiction to entertain it.
Lord Justice Tomlinson:
- I agree.
Lord Justice Pill:
- I also agree.
Order: Application refused
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