England, R (on the application of) v London Borough of Tower Hamlets & Ors

An appellate court may refuse permission to appeal despite an arguable point of European law where the dispute has lost its practical purpose and further litigation would be disproportionate. Judicial review determines disputes between interested parties, rather than abstract questions of legal compliance.

Factual disputes, particularly allegations first raised on appeal, should not ordinarily be investigated for the first time at that stage. Where the decision rests on discretionary and practical grounds rather than the European-law issue, Article 234 does not require a reference. The court may also consider the availability of funding once the case’s principal practical purpose has gone.

The claimant sought to prevent demolition of a warehouse and canopy at Suttons Wharf, East London, to make way for housing development. He challenged the planning permission by judicial review.

Collins J granted permission to apply for judicial review but dismissed the claim, declined to continue an interim injunction, and refused permission to appeal. By the time of the renewed application to the Court of Appeal, demolition was substantially complete.

The claimant pursued two proposed grounds: alleged failure adequately to address site contamination, and alleged incompatibility of the domestic exemption of demolition from planning control with European environmental-assessment requirements. The central question was whether permission to appeal should nevertheless be granted.

1. The application for permission to appeal was refused. The contamination ground had been raised for the first time on appeal. It involved substantial factual disputes, including whether the planning applicants had misled the council. It was not appropriate for those disputes to be investigated for the first time in an appeal, particularly as a separate Administrative Court claim had been commenced.

2. The European-law ground was potentially arguable, but permission was properly refused as a matter of discretion. The demolition that the claimant sought to prevent was substantially complete. The court decides disputes between interested parties and should not determine issues in the abstract. It would have been wholly disproportionate to cast further doubt on the development while protracted litigation, potentially including proceedings in the European Court, continued.

3. The court’s refusal did not depend on resolving the European-law question. Accordingly, the asserted duty under Article 234, relying on Kraaijeveld [1996] ECR 5403, did not prevent refusal of permission.

4. The court added that funding could be relevant to the discretionary decision whether a case should continue once its principal practical purpose had gone. A protective costs order was not sought and should not be made without giving affected parties an opportunity to comment. The court also expressed obiter doubts about the appropriateness and workability of a requirement that a public-interest applicant have no private interest, while noting the restrictive approach in other decisions.

5. There was no order as to costs. The court authorised reference to the judgment in other proceedings as an exception to the ordinary rule for permission judgments.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused in [2006] EWCA Civ 1742.

• High Court, Administrative Court: Collins J granted permission to apply for judicial review but dismissed the claim, declined to continue the interim injunction, and refused permission to appeal. No citation for that decision was stated in the judgment.