Land – Compulsory purchase order – Viability – First defendant refusing planning permission for wharf redevelopment but confirming compulsory purchase order (CPO) to reactivate wharf – Claimant wharf owners applying for order quashing CPO decision – Whether inspector applying planning policy correctly – Whether inspector ignoring material factors or reaching unreasonable conclusions – Whether claimants having opportunity to deal with change in basis of CPO confirmation – Application granted
The claimants owned Orchard Wharf at Leamouth on the north side of the River Thames, near its confluence with the River Lea, or Bow Creek. The wharf was unused and vacant but for a few derelict buildings. The claimants hoped to develop the land at some stage for uses including residential, boat yard and a waste to energy facility to handle river borne waste. The second defendant Port of London Authority made a compulsory purchase order (CPO) for the acquisition of the wharf to bring it into active use as a wharf. The third and fourth defendants applied for planning permission for the operational development required for that activity. The local authority refused the application for full permission for the operational development, the significant and contentious part of which fell within their area. The sole ground of refusal related to the impact of the buildings on the character and appearance of an area surrounding a prominent riverfront location.
The third and fourth defendants appealed against that refusal. An inquiry was held into the CPO and objections and into the planning appeal. An inspector appointed by the first defendant secretary of state recommended that planning permission be refused but that the CPO be confirmed. The first defendant accepted those recommendations.
The claimants applied to quash the decision to confirm the CPO under section 23 of the Acquisition of Land Act 1981. The claimants contended that: (i) the inspector had failed to reach conclusions about the basis upon which the wharf continued to be safeguarded as wharf in London Plan policy which had been misconstrued; (ii) the inspector had ignored material factors or reached unreasonable conclusions, adopted by the first defendant, in dealing with the quantitative need for a wharf for handling aggregates; (iii) the inspector had failed to consider the benefits of any alterative scheme; and (iv) the claimants had not had a fair opportunity to deal with the change of basis for confirming the CPO.
Held: The application was granted.
(1) On the evidence, the inspector had not erred in law in his approach to the significance of the identification of the appeal site as a safeguarded wharf.
(2) The inspector had not erred in law in his approach to the planning policy test for viability and the CPO test for need. The inspector had considered how the relevant planning policy applied to the safeguarded wharf. Viability in the planning sense was relevant since, if the wharf were not viable in that sense, the application of the safeguarding policy to it would have been difficult to sustain. In terms of other planning policy, a safeguarded wharf was needed if it was viable for wharf use. So the inspector had to ask himself where the public interest and the compelling case lay, if the policy would prevent the use of the site for the purposes for which the claimants wished to use it. It did not reverse the onus of proof to say that, in policy terms, the site was needed, and to look at what that meant for the use of the site. The inspector had moved simply from the fact of safeguarding to the compelling need case for acquisition. He had considered the real world demand, the relative advantages of the location of the appeal site compared with other wharves for serving the region and the role to be place in the reactivation of the wharf by the third and fourth defendants.
(3) However, there was an insufficient evidential basis for the conclusion that there was a reasonable prospect of an acceptable planning permission being granted and implemented, sufficient to warrant confirmation of the CPO. The justification for the CPO had to be compelling in the public interest. The land could not be acquired unless there was a reasonable prospect that it would be used for the purpose for which it was acquired. The “reasonable prospect” test could not be allowed to become an undemanding threshold. A reasonable prospect that the land would be put to the use for which it was acquired, so as to achieve the benefits which warranted the acquisition required sound evidence, sufficient to warrant taking someone’s property from them: Margate Town Centre Regeneration Co Ltd v Secretary of State for Communities and Local Government [2013] EWCA Civ 1178; [2013] PLSCS 230 considered.
(4) Furthermore, the decision was unfair because the claimants had not had an opportunity to deal with a change in the basis of confirmation. There was no way in which the claimants could have anticipated the point they had had to deal with: an acceptable redesign which could achieve very much the same throughput, or alternatively, a significantly reduced throughput which did not matter very much because, whatever was permitted would be built, and the difference did not matter in terms of providing a compelling case in the public interest. Accordingly, the claimants had had no opportunity to address the basis upon which the first defendant had confirmed the CPO. Importantly, the claimants had had no chance to explore and comment on the prospect of permission for an alternative scheme being implemented.
Peter Village QC and James Burton (instructed by Wragge Lawrence Graham & Co) appeared for the claimants; Charles Banner (instructed by the Treasury Solicitor) appeared for the first defendant; Russell Harris QC (instructed by Bircham Dyson Bell LLP) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read transcript: Grafton Group (UK) plc and another v Secretary of State for Transport and others