Prashar v Secretary of State for the Environment Transport and the Regions

The Court of Appeal has no jurisdiction to entertain a further appeal from a High Court judge’s refusal, following an oral hearing, of permission to appeal under section 289 of the Town and Country Planning Act 1990. The jurisdictional bar applies irrespective of the proposed appeal’s merits or any possible injustice.

An appellate court derives its jurisdiction from Parliament and the applicable procedural rules. It cannot create jurisdiction by granting permission in an apparently meritorious case. A decision reached at the oral permission hearing remains a decision for this purpose unless it can properly be said that no decision was made at all.

Three applicants sought permission to appeal from decisions of Sullivan J in the Administrative Court. The judge had refused permission to appeal under section 289 of the Town and Country Planning Act 1990. The applications concerned Mr Prashar, Mr Benge and D B Earthmoving & Plant Hire Ltd.

Mr Benge had originally proceeded under section 288. Sullivan J permitted him to reformulate his complaint under section 289 because its substance was that the combined hearing of two matters had been unfair. The judge then considered both his application and the company’s application on their merits.

The common issue was whether the Court of Appeal could entertain an appeal from a High Court judge’s refusal, at an oral hearing, to grant permission under section 289.

1. All three applications for permission to appeal were dismissed. Kay LJ held that the Court of Appeal had no power to hear them. The absence of jurisdiction applied regardless of the apparent merits of the proposed appeals or the possibility that an injustice had occurred.

2. An appellate court may exercise only the jurisdiction conferred upon it by Parliament and the applicable procedural rules. It cannot hear a matter merely because the circumstances appear deserving where Parliament has excluded a further appeal.

3. Section 289(6) of the Town and Country Planning Act 1990 requires the court’s leave for an appeal under section 289. Under the former Rules of the Supreme Court, the Court of Appeal had no jurisdiction to review the High Court’s refusal of leave. Wendy Fair Markets Ltd v Secretary of State for the Environment and the related Huggett and Bello cases established that the bar did not depend upon the proposed appeal’s merits.

4. The same result followed under Part 52 of the Civil Procedure Rules and paragraph 4.8 of its practice direction. The latter, referring to section 54(4) of the Access to Justice Act 1999, provides that there is no appeal from an appeal court’s decision at an oral hearing to grant or refuse permission to appeal. Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1 was followed: those words bear their ordinary meaning where an oral hearing occurred and it cannot be said that no decision was made.

5. Sullivan J had therefore made final permission decisions which the Court of Appeal could not review. In Mr Benge’s case, it had been appropriate to permit the original section 288 application to proceed under section 289 because the substance of his complaint concerned the fairness of the combined hearing. That procedural correction did not create a right of further appeal.

Order: Applications dismissed, with no order as to costs.

1. Court of Appeal (Civil Division): The three applications for permission to appeal were dismissed for want of jurisdiction: [2001] EWCA Civ 1231.
2. High Court, Queen’s Bench Division (Administrative Court): Sullivan J refused permission to appeal under section 289 of the Town and Country Planning Act 1990. In Mr Benge’s case, the judge first permitted an application originally brought under section 288 to be reformulated under section 289.