Miaris v The Secretary of State for Communities and Local Government & Ors

Where a specific enactment permits an appeal to the Court of Appeal with permission from either the High Court or the Court of Appeal, that power is not removed by a later general provision governing second appeals unless Parliament has clearly repealed it. Civil Procedure Rules made under delegated authority cannot amend, repeal or revoke primary legislation without specific statutory authority. A procedural rule that is expressly subject to enactments containing special appeal provisions does not displace such a provision. Accordingly, the High Court retains power under section 289(6) of the Town and Country Planning Act 1990 to grant permission to appeal. The permission granted was therefore valid and was not revoked.

The court had previously dismissed an appeal under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of an appeal against an enforcement notice: [2015] EWHC 1564 (Admin). Permission had then been granted to appeal to the Court of Appeal.

The Secretary of State’s solicitor subsequently contended that the High Court lacked jurisdiction to grant permission because section 55(1) of the Access to Justice Act 1999 and CPR 52.13 made such an appeal a second appeal requiring permission from the Court of Appeal alone. The court also considered whether, if permission had been invalid, it could revoke its order.

1. The court rejected the contention that section 55(1) of the Access to Justice Act 1999 had impliedly repealed or amended section 289(6) of the Town and Country Planning Act 1990. Section 289(6) was a specific provision governing appeals in proceedings under that section. The reasoning in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd and Smith International Inc v Specialised Petroleum Services Group Ltd applied.
2. There is now a strong presumption against implied repeal, as explained in H v Lord Advocate. The requirement for permission therefore remained governed by section 289(6), which permitted the High Court as well as the Court of Appeal to grant permission.
3. CPR 52.13 did not produce a different result. Rules made under section 1 of the Civil Procedure Act 1997 govern practice and procedure but cannot amend, repeal or revoke primary legislation. No consequential order under section 4 had been made. CPR 52.1.4 also made the rules subject to enactments containing special provisions for particular categories of appeal.
4. The court concluded that it had jurisdiction to grant permission and accordingly declined to revoke the permission already granted. The costs issue was treated as an effective application by the Secretary of State to vary the order, and the Secretary of State was ordered to pay £300 plus VAT.

The judgment followed the court’s earlier decision dismissing the section 289 appeal: [2015] EWHC 1564 (Admin). It dealt with the subsequent question whether permission to appeal to the Court of Appeal had been validly granted.