Amin Dharmeshkumar v Secretary of State for Housing, Communities and Local Government & Anor

For an appeal from the High Court to the Court of Appeal under Town and Country Planning Act 1990, s.289(6), the permission test is the ordinary first-appeal test in CPR 52.6. The stricter second-appeal test in CPR 52.7 does not apply. Section 55(1) of the Access to Justice Act 1999 neither combines with nor impliedly repeals the specific statutory power allowing either court to grant permission. CPR 52.7 reflects s.55(1) and cannot extend it. The court cannot select the stricter test because it appears more appropriate. The public-law character of a s.289 appeal and the availability of adequate appellate remedies provide no basis for importing heightened scrutiny.

The appellant converted former offices in Wembley into twelve flats following planning approvals and later sought amendments to the scheme. The London Borough of Brent served an enforcement notice alleging an unauthorised material change of use. A Planning Inspector dismissed the principal grounds of appeal and made a partial costs award. The High Court dismissed the appellant’s appeals against both decisions on 3 October 2025.

The appellant sought permission to appeal to the Court of Appeal under s.289(6) of the Town and Country Planning Act 1990. The preliminary issue was whether the application was governed by the first-appeal test in CPR 52.6 or the stricter second-appeal test in CPR 52.7, and whether s.55 of the Access to Justice Act 1999 affected the specific statutory appeal route.

Held, unanimously: the correct test for permission to bring an appeal to the Court of Appeal under s.289(6) of the Town and Country Planning Act 1990 is CPR 52.6, not CPR 52.7.

1. Nature of the statutory route. An appeal under s.289 is confined to points of law and is akin to judicial review or statutory review under s.288: R (Walsall Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2013] EWCA Civ 370. If successful, the court remits the matter for rehearing and redetermination rather than deciding the planning appeal itself: R (Leeds City Council) v First Secretary of State [2004] EWHC 2477 (Admin). Section 174 and s.289 appeals form part of the same enforcement appeal process, rather than separate self-contained rights of appeal: R v Kuxhaus [1988] QB 631.
2. Statutory construction. Section 55(1) of the Access to Justice Act 1999 cannot operate in combination with s.289(6), because the two provisions differ as to who may grant permission. Nor did s.55 impliedly repeal the specific power of the High Court to grant permission. The strong presumption against implied repeal, especially where a later general enactment encounters an earlier specific provision, applied: H v Lord Advocate [2012] UKSC 24; Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited [2001] QB 388; Smith International Inc v Specialised Petroleum Services Group Limited [2005] EWCA Civ 1357. The same conclusion had been reached in Miaris v Secretary of State for Communities and Local Government [2015] EWHC 2094 (Admin).
3. Effect of the CPR. CPR 52.7 reflects s.55(1) and does not extend beyond the statutory provisions to which the second-appeal regime applies. CPR 52.1(4) makes Part 52 subject to special statutory appeal provisions. The court has no discretion to choose whichever of CPR 52.6 and CPR 52.7 appears more appropriate. The broad language in Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 is no longer correct insofar as it covers unrepealed permission provisions inconsistent with s.55(1).
4. Alternative arguments. R (Cart) v Upper Tribunal [2011] UKSC 28 was distinguishable because it concerned judicial review where no alternative remedy existed. Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 did not justify a robust or heightened approach. The statutory review route under s.288 was a closer analogue, and appeals from it are treated as first appeals.

The judgment determined only the preliminary permission issue. The applications for permission were to be determined on the papers by a single Lord or Lady Justice.

• Court of Appeal (Civil Division) determined the preliminary issue and held that CPR 52.6, rather than CPR 52.7, governs permission to appeal under s.289(6) of the Town and Country Planning Act 1990.
• High Court, Planning Court dismissed the appellant’s appeals against the Inspector’s enforcement-notice and costs decisions in a judgment handed down on 3 October 2025.
• Planning Inspector dismissed the principal enforcement-notice appeal grounds on 2 October 2024 and made a partial costs award in the appellant’s favour.