Malewska v Secretary Of State For Environment, Transport & Regions & Anor

A refusal by the High Court to grant permission to appeal under section 289 of the Town and Country Planning Act 1990 is itself a permission decision. Detailed consideration of the proposed grounds, or hearing submissions from the respondent, does not convert it into a substantive appeal.

Where the statutory scheme and the Civil Procedure Rules 1998 preclude a further appeal, the Court of Appeal has no jurisdiction to entertain an application for permission to appeal. Article 6 does not require a legal system to provide a right of appeal where the first-instance process is compliant with that provision.

The appellant challenged an enforcement notice concerning an unauthorised dormer extension at a residential property. The Secretary of State’s inspector upheld the notice after deciding that the property was not a dwelling house for the relevant permitted-development provisions.

Ouseley J dismissed the appellant’s application for permission to appeal under section 289 of the Town and Country Planning Act 1990. The appellant then sought permission from the Court of Appeal, arguing that the High Court judge had effectively determined a substantive appeal because he heard detailed argument and heard the respondent’s counsel.

The central issue was whether the Court of Appeal had jurisdiction to entertain that application.

1. Application refused. The Court of Appeal had no jurisdiction to entertain an application for permission to appeal against a High Court decision, made at an oral hearing, refusing permission to appeal under section 289 of the Town and Country Planning Act 1990.
2. Paragraph 4.8 of the Practice Direction to Part 52 of the Civil Procedure Rules 1998, section 54(4) of the Access to Justice Act 1999, and rules 52.3(3) and 52.3(4) established the relevant procedural position. The Court followed the approach in Prashar and Benge v SSETR [2001] EWCA Civ 1231, in which Kay LJ held that the Court of Appeal lacked jurisdiction in the same circumstances.
3. The character of the High Court hearing was not altered by the judge’s investigation of the merits, his decision to hear submissions from the prospective respondent, or his consideration of whether a ground was arguable. The only matter before him remained the application for permission. A close practical relationship between arguability and the substance of the proposed appeal did not change that legal character.
4. The appellant’s argument that the decision should be treated as a substantive appeal therefore failed. The same applied even if the judge had considered the dwelling-house issue differently from the inspector.
5. The Human Rights Act did not permit the court to set aside the statutory provisions governing jurisdiction. Article 6 of the European Convention on Human Rights did not itself require a right of appeal. A legal system could operate through a compliant first-instance jurisdiction without appeal rights.
6. The challenge to the costs order also disclosed no arguable ground. The judge had reduced the claimed costs on a rough-and-ready basis, and the extent of that reduction was not a matter warranting an appeal.

• High Court, Queen’s Bench Division, Administrative Court: Ouseley J dismissed the application for permission to appeal under section 289 of the Town and Country Planning Act 1990 on 15 October 2001.
• Court of Appeal (Civil Division): The application for permission to appeal against that refusal was refused. The Court held that it had no jurisdiction to entertain it.