Walsall Metropolitan Borough Council v Secretary of State for Communities & Local Government

A High Court judge’s refusal of permission to bring a statutory appeal under section 289 of the Town and Country Planning Act 1990 cannot itself be appealed to the Court of Appeal. The permission requirement is intended to make that refusal final and to filter out unarguable challenges.

The Court of Appeal retains a residual jurisdiction where misconduct, unfairness or mischance affects the integrity of the decision-making process. That jurisdiction does not permit review of the merits of the refusal.

The statutory scheme, considered as a whole, complies with article 6. An independent High Court judge has full jurisdiction to review an inspector’s decision for legal error and may refuse permission where the proposed challenge is not arguable.

Two local planning authorities issued enforcement notices which were quashed after appeals to planning inspectors under section 174 of the Town and Country Planning Act 1990. The authorities sought permission to appeal to the High Court under section 289. Eder J refused both applications as unarguable in [2012] EWHC 1756 (Admin).

The authorities then sought permission to appeal to the Court of Appeal. The central questions were whether that court had jurisdiction to entertain a challenge to the High Court’s refusal of permission, whether the controlling decision in Wendy Fair Markets Ltd v SSE should be departed from under the exceptions governing the Court of Appeal’s treatment of its own precedents, and whether the statutory scheme complied with article 6.

1. The applications were refused for want of jurisdiction. The court was bound by Wendy Fair Markets Ltd v SSE, which established that a High Court judge’s refusal of permission to appeal under section 289 of the Town and Country Planning Act 1990 was not a judgment or order appealable to the Court of Appeal under section 16 of the Senior Courts Act 1981. The amended section 289(6) created a filter intended to prevent unmeritorious enforcement appeals. Neither section 289(4A) nor the later introduction of the Civil Procedure Rules diminished the purpose of that filter.

2. The court could not depart from Wendy Fair under the principles in Young v Bristol Aeroplane Co Ltd. It had been followed in Prashar v SSE; no conflicting Court of Appeal decision governed section 289(6); it was not inconsistent with later House of Lords or Supreme Court authority; and it had not been decided per incuriam. The omission of an express reference to section 289(4A) did not constitute a relevant oversight because that subsection provided only a partial response to abusive appeals.

3. The authorities concerning arbitration recognised a residual jurisdiction where misconduct, unfairness or mischance impaired the integrity of a refusal-of-permission process. They preserved the distinction between an attack on the decision-making process and an appeal against the merits. No procedural impropriety was alleged here. The proposed challenges concerned only the merits of Eder J’s careful determination that the appeals were unarguable.

4. The judicial-review authorities did not displace Wendy Fair. They concerned the supervisory jurisdiction of the High Court, whereas section 289 creates a statutory appeal whose conditions Parliament may limit. Parliament deliberately adopted different procedures for judicial review, section 288 challenges and section 289 enforcement appeals.

5. The statutory process as a whole complied with article 6. Inspectors’ decisions were subject to sufficient judicial control because the High Court had full jurisdiction to review their lawfulness. Requiring an independent High Court judge to determine whether a challenge was arguable regulated access to that jurisdiction; it did not confer immunity or remove judicial control.

Sullivan LJ delivered the judgment. Tomlinson and Pill LJJ agreed.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 370, refused the applications for permission to appeal because it had no jurisdiction to entertain an appeal from the refusal of permission under section 289 of the Town and Country Planning Act 1990.
• High Court, Administrative Court: Eder J refused both local authorities permission to appeal under section 289, holding that their proposed appeals were not arguable: [2012] EWHC 1756 (Admin).
• Planning inspectors: Allowed appeals under section 174 and quashed the enforcement notices issued by the two local planning authorities.