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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Malewska v Secretary Of State For Environment, Transport & Regions & Anor [2002] EWCA Civ 784 (1 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/784.html Cite as: [2002] EWCA Civ 784

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IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Ouseley)

		The Royal Courts of Justice The Strand London Wednesday 1 May 2002

Wednesday 1 May 2002

1. LORD JUSTICE LAWS: There is before the court an application for permission to appeal against the decision of Ouseley J, made on 15 October 2001, to dismiss the applicant's application for permission to appeal to the High Court under section 289 of the Town and Country Planning Act 1990 against a decision of the Secretary of State by his inspector to uphold an enforcement notice which had been issued by the London Borough of Ealing in respect of an erection of an unauthorised dormer extension on the second floor at 46 Kenilworth Road, Ealing.
2. The applicant's husband, Mr Cole, has attended to assist her today. He has addressed me with my consent and has done so with great courtesy and consideration. He also appeared before Ouseley J and was heard by him.
3. It was said on the applicant's behalf that the extension in question was a permitted development. That depended on whether 46 Kenilworth Road was a dwelling house within the relevant definition. The Secretary of State's inspector had decided that it was not. That conclusion was attacked before Ouseley J at an oral hearing of the applicant's application for permission to appeal at which, as I have said, she was represented by her husband, Mr Cole. The Secretary of State was represented by counsel.
4. The judge found that the inspector's treatment of the issue could not be faulted. He said in his judgment at paragraph 14:

"It is my conclusion, therefore, that in relation to those issues the inspector has reached a plainly impeccable conclusion."

5. He then considered further arguments before him on the dwelling house issue, not least Mr Cole's reliance on a decision of this court in Peck v Anicar Properties Ltd [1971] 1 AllER 517. The judge then concluded at paragraph 22:

"That disposes of the one ground in relation to which I wondered whether it was arguable that Mr Cole had a case. I do not consider it on examination to be arguable."

6. The applicant, through Mr Cole, now seeks to appeal that decision. However, it is stated at paragraph 4.8 of the Practice Direction to Part 52 of the Civil Procedure Rules:

"There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. See section 54(4) of the Access to Justice Act 1999 and rule 52.3(3) and (4)."

7. Kay LJ has considered the application of this rule to an application to this court for permission to appeal against a decision of the High Court refusing permission to appeal under section 289 of the Town and Country Planning Act, the very statutory provision in question in the present case. Kay LJ's case was Prashar and Benge v SSETR [2001] EWCA Civ 1231, decided on 19 July 2001. The learned Lord Justice was (if I may say so) entirely clear that this court lacked all jurisdiction to entertain such an application and I have to say in my judgment that was plainly correct.
8. Mr Cole has placed before the court a detailed and careful skeleton argument, and indeed an up-dated version of it was produced today. In it, it is submitted that Ouseley J's ruling ought to be treated as the determination of a substantive appeal under section 289 in relation to which, of course, an application for permission to appeal to this court may certainly be made. This is how it was put in the original skeleton argument and Mr Cole, I apprehend, would subscribe to the same submission today. Paragraph 2:

"The usual procedure on a permission hearing is that if the Judge considers a ground of appeal arguable, he will give permission without needing to hear argument. If he considers it unarguable he will invite the appellant to try to persuade him otherwise. In this hearing the Judge did the opposite. He asked to hear detailed argument on the ground he considered arguable, and asked for argument to be curtailed on the ground he considered unarguable. At the conclusion of the appellant's submissions the Judge called on Treasury Counsel to respond, but only on the ground of appeal as to whether the building was a dwellinghouse. If the Judge had been satisfied that there was no arguable case he could have refused permission at that stage. Calling on Treasury Counsel implied that there was an arguable case to which he needed to respond. The threshold ought then to have been the same as on an application by a respondent to set aside permission to appeal, namely surmounting the high hurdle of showing that the appeal was completely unarguable."

9. But with deference to Mr Cole, this is a misconception. The only matter before Ouseley J was the applicant's application for permission to appeal under section 289. That was the only matter which Ouseley J determined. The fact that he called on counsel for the respondent cannot elevate a permission application into a substantive appeal. The judge's conclusion was in the end that the prospective appeal was not arguable and that accordingly the applicant's application for permission to appeal should be refused. There is no inconsistency between investigation of a point by a judge called on to decide whether to grant permission, including the reliance by him on what may be said by counsel for the prospective respondent, and his conclusion at the end of the day that after looking at the case the prospective appeal is in truth unarguable. I quite understand -- and indeed in considerable measure accept -- Mr Cole's submission that there is a pretty fine line between the judge deciding whether something is arguable or not and deciding its substance. There is certainly a fine line between the sort of submissions that might be made by counsel for the respondent upon the merits of the matter and the submissions he might make on arguability. But, fine line or no fine line, the fact is that there is no escape from the circumstance here that Ouseley J was only and ever dealing with a permission application. Nor is the matter affected by Mr Cole's suggestion that the judge dealt with the substantial point, the dwelling house question, in a manner different from that which had been the subject of the inspector's consideration. I am not, with respect to Mr Cole, at all clear that he is right about that, but even if he were, again that could not turn a permission application into a substantive appeal.
10. Lastly, Mr Cole seeks to say that if there is no jurisdiction here on the face of the Access to Justice Act and the Rules, then his wife has been the victim of a violation of her rights under Article 6 of the European Convention on Human Rights and, it being my duty to act consistently with and protect the Convention rights under the provisions contained in the Human Rights Act, I should find a means of conferring an avenue of appeal upon her.
11. First of all, as is well known, the Human Rights Act does not entitle the court to set aside statutory provisions and I am bound by the terms of section 54 of the Access to Justice Act. But, secondly, the jurisprudence of the Court of Human Rights does not (as I indicated to Mr Cole) require appeal rights to be established at all. A legal system might operate only by means of a first-instance jurisdiction if the processes of that jurisdiction are compliant with Article 6. There is no breach of the article in the absence of any rights of appeal. So I fear that the European Convention cannot assist the applicant.
12. There is one last point. It is said that the judge made an order for costs that should be vulnerable to appeal. Assuming I have jurisdiction to consider an application for permission in relation to that, I have to say that there is nothing that ought to attract an appeal in what the judge did. It is dealt with in paragraphs 51 and 52 of his judgment. I am not going go into it. I have read the paragraphs in question. What he did was to reduce the costs that were claimed as a matter of rough and ready approach on the basis that he described. Mr Cole says that there should have been a greater reduction. I do not think that that is a matter for the Court of Appeal.
13. In those circumstances it is my duty to refuse this application, which I do, and I thank Mr Cole for his courtesy.
ORDER: Application refused