Amin Dharmeshkumar v Secretary of State for Housing, Communities and Local Government & Anor [2026] EWCA Civ 247
Dharmeshkumar section 289 appeal is a Court of Appeal judgment about the test for obtaining permission to appeal from the High Court in a planning enforcement case.
The court held that an appeal to the Court of Appeal under section 289(6) of the Town and Country Planning Act 1990 is subject to the ordinary permission test in CPR 52.6, not the stricter second-appeal test in CPR 52.7.
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- Neutral citation
- [2026] EWCA Civ 247
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 10th March 2026
- Judge
- Sir Andrew McFarlane, President of the Family Division, Lady Justice Elisabeth Laing and Lord Justice Holgate
- Case number
- CA-2025-002648
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What the 2026 Dharmeshkumar judgment decided
Mr Dharmeshkumar had lost a section 289 appeal in the High Court concerning an enforcement notice against twelve flats in a former office building in Wembley.
He then sought permission to appeal from the High Court to the Court of Appeal. Before considering the merits of that application, the Court of Appeal had to decide which permission test applied.
The court unanimously held that the correct test is CPR 52.6: whether the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard.
A section 289 Court of Appeal case is not subject to the second-appeal test
The stricter CPR 52.7 test applies to certain second appeals and normally requires both a real prospect of success and an important point of principle or practice, unless there is some other compelling reason.
The Court of Appeal held that section 289(6) is part of a specific statutory appeal regime which allows permission to be granted either by the High Court or by the Court of Appeal.
Section 55 of the Access to Justice Act 1999 did not impliedly repeal that arrangement. As a result, the second-appeal regime which accompanies section 55 did not govern section 289(6).
CPR 52.6 therefore supplies the permission test
Because CPR 52.7 did not apply, the ordinary permission rule in CPR 52.6 did.
The court also rejected the Secretary of State’s fallback argument that section 289 appeals should receive some specially heightened or robust scrutiny even if the formal second-appeal test did not apply.
Parliament had created a right of appeal on a point of law first to the High Court and then, with permission, to the Court of Appeal. The court would apply the permission test prescribed by the rules rather than invent a stricter one for planning enforcement cases.
Section 288 provided the closer analogy
The court considered statutory review under section 288 a better comparison than specialist tribunal systems.
A section 289 appeal to the High Court shares many characteristics with a section 288 statutory review: it is concerned with errors of law or public-law principles and usually results in the planning matter being remitted rather than the court remaking the planning decision.
Appeals from section 288 proceedings are treated as first appeals for permission purposes, which supported the same approach under section 289.
This judgment did not decide the planning merits
The 2026 Court of Appeal judgment was deliberately confined to the preliminary permission-to-appeal issue. It did not decide whether the High Court was right about the underlying Class O prior approval, section 55 or enforcement questions.
Those substantive planning issues are explained separately on Planning Geek’s Dharmeshkumar prior approval case-law page.
The Court of Appeal directed that, once this preliminary issue had been decided, the actual application for permission to appeal would be determined separately on the papers by a single Lord or Lady Justice.
Why the case matters
The distinction can materially affect whether a proposed Court of Appeal challenge gets through the permission filter.
A section 289 appellant does not have to satisfy the additional important-point-of-principle requirement merely because the case has already passed through an Inspector and the High Court. The ordinary CPR 52.6 test applies.
Read the full 2026 Dharmeshkumar judgment
The full Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Dharmeshkumar Section 289 Appeal Case Law Page Updated: 10th September 2026