Binning Property Corporation Ltd v Secretary of State for Housing, Communities and Local Government & Anor

A statutory scheme requiring High Court leave before an enforcement-notice appeal can proceed does not, without an express further right, permit the Court of Appeal to review the High Court’s refusal of leave. A statutory decision granting or refusing permission to appeal is ordinarily final and conclusive. The Court of Appeal may intervene only where the process leading to the refusal was vitiated by misconduct or unfairness, not to reconsider the merits. Later leave filters, costs protection and procedural changes for planning statutory reviews do not alter the distinct section 289 scheme or create a right of appeal. The application was therefore refused for want of jurisdiction.

The local planning authority issued two enforcement notices concerning land owned by the applicant. An inspector dismissed the applicant’s appeal against the first notice and allowed its appeal against the second. The applicant then appealed under section 289 of the Town and Country Planning Act 1990 against the inspector’s decision on the first notice. The High Court refused leave to bring that appeal: [2018] EWHC 2029 (Admin). The applicant sought permission to appeal to the Court of Appeal. The central issue was whether the Court of Appeal had jurisdiction to entertain an appeal against the High Court’s refusal of leave under section 289(6), having regard to subsequent statutory and procedural changes.

Application refused. Lord Justice Lindblom held that the Court of Appeal had no jurisdiction to entertain the proposed appeal. Lady Justice Sharp agreed.

1. The principle in Lane v Esdaile (1891) A.C. 210 remains applicable. Where legislation gives a court or tribunal power to grant or refuse leave to appeal, that decision is ordinarily final and conclusive. A High Court refusal of leave under section 289(6) is not a judgment or order which attracts the general appellate jurisdiction in section 16 of the Senior Courts Act 1981.
2. The Court of Appeal was bound by Wendy Fair Markets Ltd. (Strandmill Ltd.) v Secretary of State for the Environment [1996] J.P.L. 649, as followed in Prashar v Secretary of State for the Environment, Transport and the Regions [2001] EWCA Civ 1231 and Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government [2013] EWCA Civ 370. Those authorities establish that section 289(6) does not confer jurisdiction to challenge the merits of a High Court refusal of leave.
3. A residual jurisdiction exists where the process by which leave was refused was vitiated by misconduct or unfairness. That qualification was not engaged. The applicant challenged the merits of the judge’s decision, not the fairness or integrity of the process.
4. The categories in Young v Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718 did not permit departure from the earlier authorities. There was no conflicting Court of Appeal decision, no inconsistent higher authority and no per incuriam decision.
5. Later amendments to the Criminal Justice and Courts Act 2015, the Civil Procedure Rules 1998 and costs-protection provisions did not amend the section 289 appeal scheme or create a further right of appeal. The distinction between a section 288 planning statutory review and a section 289 appeal remained deliberate. Section 54(4) of the Access to Justice Act 1999 did not assist the applicant.

1. Court of Appeal (Civil Division): The application for permission to appeal was refused because the court had no jurisdiction: [2019] EWCA Civ 250.
2. Administrative Court, Planning Court: The deputy judge refused leave to appeal against the inspector’s decision: [2018] EWHC 2029 (Admin).
3. Inspector: The appeal against the first enforcement notice was dismissed and the appeal against the second notice was allowed.