Connaught Quarries Ltd v Secretary Of State For Environment, Transport & Regions & Anor

Permission to appeal from a High Court decision under the Town and Country Planning Act 1990 requires the stringent test in section 55(1) of the Access to Justice Act 1999: an important point of principle or practice, or another compelling reason. The statutory test for beginning development is whether any material operation has begun. The operation must be more than de minimis, assessed objectively. Once the inspector has directed herself correctly, the assessment is ordinarily one of fact and degree. An appellate court will not interfere merely because another view of the evidence is possible, absent perversity or a legal error.

Connaught Quarries Ltd sought permission to appeal against Mr Justice Elias’s dismissal of its appeal on a point of law under section 289(1) of the Town and Country Planning Act 1990. The underlying dispute concerned an enforcement notice issued by East Hampshire District Council. Planning permission for a dwelling required development to begin within five years. The inspector found that hedge clearance undertaken during that period was de minimis and did not constitute the beginning of development. The High Court held that she had applied the correct legal test and was entitled to reach that factual conclusion. The Court of Appeal considered the applicable permission threshold and whether the inspector had misinterpreted the statutory provisions.

1. Permission threshold. The application was governed by section 55(1) of the Access to Justice Act 1999. That provision superseded or qualified section 289(6) of the Town and Country Planning Act 1990 so far as the latter permitted an appeal to the Court of Appeal with leave of the High Court. The applicable threshold was more stringent than the ordinary real-prospect-of-success test. The appeal had to raise an important point of principle or practice, or some other compelling reason.
2. Beginning development. Section 56 required development to be treated as begun on the earliest date when any material operation comprised in the development began. The reference to any operation did not eliminate the de minimis qualification. The question was objective, and the applicant bore the burden of proving that qualifying work had taken place.
3. Inspector’s decision. The inspector had correctly stated the statutory provisions, identified the relevant de minimis test and made findings about the limited hedge clearance undertaken in 1993. The question whether that work was material was one of fact and degree for her. The Court of Appeal found no legal misdirection and no basis for describing the conclusion as perverse.
4. The application therefore had no real prospect of success and raised neither an important point of principle or practice nor another compelling reason. Application for permission to appeal refused.

• Court of Appeal (Civil Division): application for permission to appeal refused, applying section 55(1) of the Access to Justice Act 1999.
• High Court, Administrative Court: Mr Justice Elias dismissed the applicant’s appeal on a point of law under section 289(1) of the Town and Country Planning Act 1990 on 30 January 2001.
• Planning inspector: appeal against the enforcement notice was dismissed on 30 August 2000.
• East Hampshire District Council: enforcement notice issued concerning alleged commencement of development after planning permission had lapsed.