There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under section 289 fell within section 16 of the 1981 Act. The Master of the Rolls, with whom Kennedy and Millett LJJ agreed, said: ‘The difficulty which faces her with that submission is that although, as Miss Ellis rightly observes, none of the reported cases have arisen in the planning field, there is a considerable body of authority which makes it plain that appeals against refusals of leave to appeal to the court below are not something which the higher court has jurisdiction to entertain. The relevant line of authority begins with Lane v Esdaile (1891) AC 210, continues through Ex Parte Stevenson (1892) 1 QB 609, embraces Bland v Chief Suppelentary Benefit Officer  1 WLR 262, and perhaps ends with Geogas SA v Trammo Gas Ltd  1 WLR 776. Those authorities make plain that a decision of this kind refusing leave to appeal to the court below does not give rise to an order or judgment of a kind which can be challenged in the court above. The matter was clearly put by Fry J in Ex parte Stevenson at p.611, where he said: ‘The Judicature Act has given a general right of appeal to this court from judgments and orders of the High Court or any Judge or Judges thereof. The question is whether that provision applies to a refusal of leave to submit the question of compensation to a jury under this Act.’ He concluded that the sort of question which arises in this instance is not such as can give rise to jurisdiction to entertain an appeal by the superior court, and he described the object of the legislation at p.612 as being to make the grant or refusal of leave final. The same point was made by Sir John Donaldson MR in Bland v Chief Supplementary Benefit Officer at p.267 where, referring to s. 14 of the Social Security Act 1980, he said: ‘I would accept that in a sense the grant or refusal of leave to appeal to the Commissioner is a decision, just as in Ex parte Stevenson  1 QB, 609 it was accepted that the grant or refusal of leave to appeal was an order of the High Court, but it is not the kind of decision which, in my judgment, s.14 contemplate.’ Very much the same point was made by the House of Lords in the most recent case, which is Geogas.
Miss Ellis urged that a purposive approach is appropriate in considering the combined effect of s.16(1) and s.289(6). I agree with that, although I am bound to say that adopting a purposive approach is in my judgment fatal to her argument. All the cases have emphasized that the requirement of leave is intended to deter frivolous or unmeritorious appeals and that this object would be frustrated were the refusal of leave itself to be the subject of appeal. As Lord Jauncey observed in Geogas SA. v Tammo Gas Ltd at p.780H with reference to s.1 of the Arbitration Act 1979: ‘No appeal lies to the Court of Appeal unless the High Court or Court of Appeal gives leave. The legislative intention of limited review would be rendered nugatory if appeals were to lie to the Court of Appeal and then to this House against a decision of a Judge refusing or granting leave to appeal an award to the High Court and if an appeal were to lie against a decision of the Court of Appeal to refuse or grant leave to appeal from the High Court to itself under s.1(7).’
That observation is I think entirely consistent with the purposive construction which has been put on similar provisions in all the cases that I have mentioned.
Miss Ellis did contend, in looking at s.289, that it would lead to the risk of discrepancy and inconsistent decisions if an appeal could be brought without any leave at all under s.288 but a refusal of leave could not be challenged under s.289. For my part, I consider that the answer to that submission is the answer Mr Richards gives on behalf of the Secretary of State, which is that there is a plain disparity between the two sections. One imposes a requirement of leave; the other does not. The legislature must have intended the procedures to be different, because the provisions of the two sections are different, and I cannot see any intention that there should be less dissimilarity between these two sections than the language would itself suggest.
The second main argument which Miss Ellis advanced was based on s.289(6) itself. She submitted that on a plain reading this conveyed the impression that there was intended to be a right of appeal to the Court of Appeal against any decision of the High Court, and that accordingly one should give effect to that legislative intention. She did suggest that it was a matter of impression, and I am bound to say, for what it is worth, that my own impression is unfavourable to her submission. But I think that there are powerful reasons for holding as a matter of construction that her submission is wrong. The first is, as initially drafted before the amendment, subs.(6) cannot have been intended to embrace an appeal against the refusal of leave by the High Court, because there was then no requirement to obtain leave from the High Court. She is therefore obliged to say that the second half of the subsection bears a different meaning after the amendment from the meaning it bore before. There, however, are additional points, one of which is that when the legislature wished to make it clear that a decision was to be regarded as a decision falling within s.16 of the Supreme Court Act 1981, that was made plain as in the case of subs.(4). Furthermore, it would appear to me right to assume that, when subs.(6) was drafted, the parliamentary draftsman responsible for the provision would have been well aware of the meaning which had for a hundred years been put on a provision of this kind by courts at all levels. In other words, it must have been appreciated that if leave to appeal were refused by the High Court there would be no jurisdiction in the Court of Appeal to entertain an appeal against that refusal of leave . . Therefore, well though Miss Ellis developed her arguments, it appears to me impossible on the strength of those arguments alone to accept the conclusion that she would urge upon us.’
Sir Thomas Bingham MR, Kennedy and Millett LJJ
Times 01-Mar-1995,  159 LGLR 769
Town and Country Planning Act 1990 289-6
England and Wales
Cited – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Cited – In re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) CA 26-Nov-1990
Judge Wrong to Accept Appeal of Fact
The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused . .
Cited – Bland v Chief Supplementary Benefit Officer SSCS 1-Dec-1982
Application for leave to appeal to the Court of Appeal against a ruling of the Social Security Commissioner. The tibunal was asked if the Court of Appeal any jurisdiction to give leave to appeal from the refusal of a Social Security Commissioner to . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
These lists may be incomplete.
Updated: 10 April 2021; Ref: scu.81515