Persimmon Homes & Ors v Secretary of State for Transport

For the purposes of Tribunals, Courts and Enforcement Act 2007, section 13, an appealable decision is identified by substance rather than its label. An Upper Tribunal decision may be appealable where it conclusively resolves important issues, even though further issues remain and the valuation consequences have not been quantified. A decision containing provisional findings is different, but the description interim is not decisive. On an appeal from a first-instance Upper Tribunal, permission is governed by the ordinary first-appeal test: a real prospect of success or another compelling reason for the appeal to be heard. Where those criteria are met, permission need not await completion of the tribunal’s proceedings.

The compensating authority applied for permission to appeal against an interim decision and addendum of the Upper Tribunal (Lands Chamber), reported at [2009] UKUT 126 (LC). The tribunal had refused permission, treating the decision as incomplete and not yet effective. Before the Court of Appeal, the issues were whether the interim decision was a decision under section 13(1) of the Tribunals, Courts and Enforcement Act 2007, whether an appeal would be premature, and whether permission should be granted. The tribunal had made conclusive findings on betterment, the possible cancellation assumption, and prospects of residential planning permission, while leaving further highway evidence and valuation work outstanding.

1. Appealability. The Court of Appeal held that the interim decision was a decision for the purposes of section 13(1) of the Tribunals, Courts and Enforcement Act 2007. It was not an excluded decision under subsection 13(8). The tribunal had conclusively determined issues including betterment, the possible application of the Pointe Gourde principle and the planning-permission assumptions.
2. Substance over form. The description interim was not determinative. The court had to examine the substance of the decision. A decision may finally resolve some issues while leaving others for determination. Unquantified valuation consequences and the absence of an order for the trial of a preliminary issue did not prevent the findings from being appealable.
3. Permission and prematurity. The tribunal had been exercising first-instance jurisdiction, so the ordinary first-appeal criteria applied: a real prospect of success or another compelling reason why the appeal should be heard. All grounds had a real prospect of success. Grounds concerning betterment, the application of the Pointe Gourde principle in light of Transport for London v Spirerose Ltd [2009] UKHL 44, and the role of the President of the Lands Chamber also raised compelling questions of principle. Permission should therefore be granted without awaiting the completed tribunal decision, particularly because early determination could avoid substantial wasted preparation and costs.
4. Disposition. The reasons state that permission should be granted on all grounds and that the Lands Tribunal proceedings should be stayed pending the appeal. However, the formal order records Application refused, creating an inconsistency within the supplied judgment.

• Court of Appeal (Civil Division): Considered the application for permission to appeal. The reasons held that the Upper Tribunal’s interim decision was appealable and that the appeal was not premature. They stated that permission should be granted on all grounds and that the tribunal proceedings should be stayed, although the formal order records application refused.
• Upper Tribunal (Lands Chamber): Made the interim decision dated 22 December 2009, with an addendum dated 27 January 2010, cited as [2009] UKUT 126 (LC). It refused permission on the basis that the decision was incomplete and had not yet taken effect.