Norfolk County Council v Blanmar 2 LLP

Permission to appeal from a decision under section 67 of the Arbitration Act 1996 is governed by the ordinary first-appeal test: whether the appeal has a real prospect of success or there is some other compelling reason for it to be heard. The policy favouring finality in arbitration does not create a stricter threshold.

In determining jurisdiction under a broadly worded arbitration provision in a development consent order, the court must first decide whether the disputed conduct was authorised by the order. A dispute about that question may itself be a difference under the order. The legal consequences of the conduct, including under compulsory-purchase legislation, cannot determine jurisdiction in advance.

The claimant sought permission to appeal against the judgment dated 17 March 2023 concerning its challenge under section 67(1)(b) of the Arbitration Act 1996 to an arbitrator’s award on substantive jurisdiction. The underlying dispute concerned whether the claimant’s removal of materials was authorised by a development consent order and whether the dispute fell within Article 46.

The court had held that the dispute was a difference under a provision of the order and was not otherwise provided for. Permission was sought on four grounds concerning statutory interpretation, compulsory-purchase context, the scope of Article 46, and the meaning of otherwise provided for.

1. Permission test. The usual civil test for a first appeal under CPR 52.6(1) applies to an application under section 67(4) of the Arbitration Act 1996. The court must ask whether the proposed appeal has a real prospect of success or whether there is some other compelling reason for it to be heard. The more restrictive approach suggested in Macepark was not adopted. The statutory policy favouring finality in arbitration does not impose a different threshold.
2. Article 46. The dispute concerned whether the claimant was entitled, under the development consent order, to do what it had done. That was capable of being a difference under a provision of the order. It was unnecessary to determine the substantive legal consequences of the claimant’s conduct before deciding whether the arbitrator had jurisdiction.
3. Compulsory-purchase legislation. The claimant’s arguments conflated whether the order authorised the conduct with the consequences that would follow if it had been authorised. The compulsory-purchase context could not convert conduct unauthorised by the order into authorised conduct, nor could it require the jurisdictional question to await determination of the substantive dispute.
4. Interpretative arguments. The guidance on construction of arbitration clauses in Privalov was not inapplicable merely because the clause arose from a statutory instrument rather than a negotiated contract. Post-order conduct was inadmissible as an aid to interpretation, but its limited reference in the earlier judgment did not materially affect the construction adopted. The proposed appeal therefore had no real prospect of success.
5. Compelling reason. The fact that Article 46 and the model provisions had not previously received judicial consideration, or that the issue might affect other development consent orders, did not amount to a compelling reason. The relevant model provisions had been repealed by the Localism Act 2011, and there was no evidence of the number of potentially affected orders. The application for permission to appeal was dismissed.

The judgment records an application for permission to appeal against the High Court judgment handed down on 17 March 2023. The underlying proceedings challenged an arbitrator’s award on substantive jurisdiction under section 67 of the Arbitration Act 1996. Permission to appeal to the Court of Appeal was dismissed.