Girls Day School Trust (1872) v Dadak & Ors

A statutory provision which merely creates a route of appeal, but is silent about permission, does not displace the general procedural rules requiring permission to appeal. Section 3(4) of the Lands Tribunal Act 1949 was neutral on that question and did not preserve an implied exemption.

Permission should be granted where the proposed appeal has more than a fanciful prospect of success. It may be confined to grounds meeting that standard and to consequential issues.

The Lands Tribunal modified restrictive covenants affecting land used by a school under section 84 of the Law of Property Act 1925, without imposing compensation. The objectors sought permission to appeal. They contended, among other matters, that past waiver or acquiescence in educational use affected the Tribunal’s power to modify the restrictions.

The Tribunal had refused permission. Before Robert Walker LJ, the principal preliminary issue was whether an appeal from the Lands Tribunal under section 3(4) of the Lands Tribunal Act 1949 required permission. The further issue was whether any proposed grounds met the permission threshold.

1. Permission was required and was granted only in part. Per Robert Walker LJ, section 3(4) of the Lands Tribunal Act 1949 provided a direct route of appeal to the Court of Appeal but was neutral as to whether permission was needed. Its historical operation did not amount to an implied statutory dispensation from permission.

2. The Lands Tribunal was a true tribunal, rather than a court within rule 52.3(1)(a) of the Civil Procedure Rules. The applicable Practice Direction therefore required permission for its appeals unless a statute or rule provided otherwise. Section 3(4) did not provide such an exception. The judge rejected his earlier provisional view to the contrary.

3. The alternative analysis based on section 15 of the Interpretation Act 1978 was unnecessary. Even if a prior implied exemption had been repealed, it would not have revived merely because the intervening repealing provisions were themselves repealed.

4. The objectors’ challenge to the Tribunal’s treatment of past waiver or acquiescence in educational use raised arguable points of law with more than a fanciful prospect of success. Permission was granted for specified grounds concerning the trade restriction and consequential matters, together with limited issues concerning nuisance, compensation and the alleged fragmented presentation of the application.

5. Permission was refused for free-standing challenges to the Tribunal’s case-management decisions and for other grounds not confined to the permitted issues. Expedition was ordered, with costs in the appeal to include the two permission hearings.

• Court of Appeal (Civil Division): in [2001] EWCA Civ 380, held that permission was required and granted permission on limited grounds.

• Lands Tribunal: on 19 October 2000, modified the restrictive covenants under section 84 of the Law of Property Act 1925 without a compensation condition. It refused permission to appeal on 6 December 2000.