Court of Appeal rules on whether s.289 appeals are "first appeals" or "second appeals"

This ruling arose from a case brought against the Secretary of State for Housing, Communities and Local Government and the London Borough of Brent by developer Amin Dharmeshkumar.

Holgate LJ said that under s.289 of the1990 Act an appeal may be made to the High Court against a decision of the Secretary of State or a planning inspector on an appeal against an enforcement notice for breach of planning control.

Under s.289(6) a further appeal may be made to the Court of Appeal with the permission of either the High Court or the Court of Appeal.

Holgate LJ said the issue before the Court was whether an appeal to the Court of Appeal from a decision of the High Court under s.289 is a 'first appeal' or a ‘second appeal' for the purposes of s.55 of the Access to Justice Act 1999 and CPR 52.6 and 52.7.

A first appeal can have permission granted by either the High Court or the Court of Appeal, where the court considers that appeal to have a real prospect of success or "there is some other compelling reason for the appeal to be heard".

A second appeal can be given permission only by the Court of Appeal and the test is stricter in that the Court of Appeal must be satisfied both that the appeal has a real prospect of success and it raises an important point of principle or practice; alternatively, that there is some other compelling reason.

Mr Dharmeshkumar owns an office building in Wembley and gained planning approvals from Brent to convert it to residential.

After starting works he sought approvals for amendments which Brent either refused or did not determine. He completed the conversion to 12 flats in 2023.

Brent then served an enforcement notice alleging a breach of planning control. Mr Dharmeshkumar appealed to the Secretary of State saying he had the necessary planning approvals and so no breach occurred.

This was heard and dismissed by an inspector, who decided the development had not been carried out as approved and Mr Dharmeshkumar failed to obtain planning permission for the changes as built.

Mr Dharmeshkumar then asked the Court of Appeal for permission to appeal but this was adjourned pending determination of the preliminary issue of which test the Court of Appeal should apply when deciding whether to grant permission to appeal under s.289(6) to itself.

The developer submitted that because s.55 of the Access to Justice Act 1999 does not apply to s.289 appeals to the Court of Appeal, it follows that the second appeals test in CPR 52.7 does not apply. Where CPR 52.7 does not apply, the only test for the grant of permission is that in CPR 52.6, the first appeals test.

Holgate LJ said: “It is plain that s.289(6) of the TCPA 1990 provides for permission to appeal to the Court of Appeal to be obtained either from the High Court or the Court of Appeal.

“It is equally plain that an appeal to the Court of Appeal falling within s.55(1) of the AJA 1999 can only be brought with the permission of the Court of Appeal itself, not of the High Court or of another court.

“That head-on conflict between these two provisions can only be resolved by one or other of two responses: either the two provisions apply in combination or one provision must apply instead of the other.”

He said the Secretary of State’s first argument was that although s.55(1) does not apply to an application for permission to appeal to the Court of Appeal under s.289(6) the first part of CPR 52.7 does apply.

This refers to “any appeal to [the Court of Appeal] from a decision of the County Court, the family court, or the High Court which was itself made on appeal”.

Holgate LJ said: “I cannot accept this argument for a number of reasons.

“First, the language of the first part of CPR 52.7(1), together with 52.7(2) reflects the language of s.55(1) for second appeals from the High Court, family court or County Court acting in an appellate capacity. The operative parts of s.55(1) and CPR 52.7 are essentially the same. They both require that decisions on whether to grant permission for second appeals falling within s.55(1) be taken solely by the Court of Appeal and that the second appeals test be met.

“There is nothing in CPR 52.7 to indicate that it treats 'second appeals’ as including appeals from appellate decisions by courts which fall outside the scope of s.55(1).”

He gave five other grounds for rejection and said the CPR “do not allow a court to decide which set of criteria it considers to be ‘more appropriate’ as between CPR 52.6 and CPR 52.7.

“It is plain from the opening words of 52.6 that that provision, including the standard test for deciding whether to grant permission to appeal, applies unless CPR52.3B, 52.7 or 52.7A apply. If a case falls within one of those three rules then that rule applies. If not, then 52.6 applies”.

The Secretary of State’s second argument was that the court should exercise its discretion by adopting a test specifically for s.289(6) cases, the same test that appears in CPR 52.7.

Holgate LJ said: “Parliament has provided a right of appeal on a point of law first to the High Court and then to the Court of Appeal subject to a permission filter.”

This though was not restricted to, for example, raising ‘an important point of principle’, as “the point of law may only be of concern to the owner of the land in question, the [local authority] or local residents.

“The Secretary of State has not put forward a proper argument, or pointed to any evidence, as to why the second appeals test needs to be applied to appeals to the Court of Appeal under s.289(6).”

He concluded the correct test to be applied by the High Court or the Court of Appeal when deciding whether to grant permission to bring an appeal to the Court of Appeal under s.289(6) of the TCPA 1990 is that in CPR 52.6, not CPR 52.7.

The President of the Family Division, Sir Andrew McFarlane, and Lady Justice Elisabeth Laing both agreed.

Mark Smulian