Compulsory purchase – Lawfulness – Viability of scheme – Compulsory purchase order made for purpose of reactivating wharf – First appellant refusing planning permission for wharf redevelopment but confirming CPO – Whether that decision irrational – Relief to be granted under section 24 of Acquisition of Land Act 1981 – Whether quashing order to apply to CPO in its entirety or to confirmed CPO only while leaving “made” CPO intact – Appeal allowed in part
The respondents owned Orchard Wharf, an unused and vacant wharf at Leamouth on the north side of the river Thames, near to its confluence with the River Lea, or Bow Creek. The respondents hoped to develop the land at some stage for uses including residential accommodation, a boatyard and a waste-to-energy facility to handle river-borne waste. They objected to a compulsory purchase order (CPO), made by the second appellant as port authority in May 2012, for the acquisition of the wharf with a view to bringing it into active use as a wharf for handling river-borne aggregates and cement and batching them into concrete.
The local planning authority refused planning permission for that development on grounds relating to the impact of the buildings on the character and appearance of the surrounding area. Following an inquiry before a planning inspector, the first appellant dismissed an appeal against the refusal of planning permission but nonetheless confirmed the CPO. That decision followed the recommendation of the inspector, who had found that, while the specific development proposals would not accord with the development plan due to poor design and layout, it ought to be possible to devise a viable scheme that would overcome much of the environmental harm.
The respondents brought proceedings under section 23 of the Acquisition of Land Act 1981 to challenge the CPO. Allowing the claim, the judge accepted the respondents’ contentions that: (i) there was no legally sufficient evidence to support the inspector’s findings as to the viability of a revised scheme; and (ii) the introduction of that matter as a ground for confirming the CPO was unfair to the respondents, who had been given no proper opportunity to deal with it: see [2015] EWHC 1083 (Admin).
In a further decision, the judge held that the appropriate relief to be granted under section 24 of the 1981 Act was to quash the CPO in its entirety, and that it was not open to the court to quash only the first appellant’s confirmation while leaving intact the CPO as made by the second appellant: see [2015] EWHC 1889 (Admin). The appellant appealed.
The parties to another case, Horada v Secretary of State [2016] EWCA Civ 169, were joined as interested parties to make submissions on the relief to be granted under section 24, that being an outstanding issue remaining for determination in their own case.
Held: The appeal was allowed in part.
(1) Where a court decided to “quash” an unlawful CPO pursuant to section 24(2) of the 1981 Act, the quashing order had to apply to CPO in its entirety, as made and confirmed. It was a long-accepted rule that the effect of an order to quash was to render the instrument in question as if it had never been. If only the confirmed CPO were quashed, leaving the made CPO, the latter would still have legal effects including appeal rights and the duty of the secretary of state, under section 13A of the 1981 Act, to hold a public inquiry.
(2) It was not possible to avoid that conclusion by construing the term “compulsory purchase order”, as it appeared in section 24(2), as referring only to the CPO after confirmation and publication and as excluding the made CPO. The term “compulsory purchase order” bore the meaning given to it by section 2, which made it clear that it was intended to refer compendiously to the CPO as made and confirmed. The fact that the CPO was only “operative” after publication of its confirmation did not imply, in light of section 2, that the instrument in its earlier stages was not under the statute a CPO at all. The CPO, throughout its incarnation, was recognised as the source of authority for the land’s acquisition notwithstanding that its authority did not bite until after publication. Accordingly, the term “compulsory purchase order” meant the instrument so called from first to last. If the legislature had intended to allow for relief going only to its confirmation, it would have so provided.
(2) The court did not have any inherent power, outside of section 24, to grant a lesser form of relief that a quashing order. That position flowed from section 25 of the 1981 Act, so far as it provided that, other than by means of sections 23 and 24, a CPO “shall not… be questioned in any legal proceedings whatsoever”. Accordingly, the only remedy available on a challenge to a CPO was that given by section 24.
(3) It was in principle possible to confirm the CPO despite the dismissal of the planning appeal. The judge had been wrong to conclude that there was no legally sufficient evidence to justify the first appellant’s decision in that regard. Matters of planning judgment were within the exclusive province of the decision-maker: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 795; [1995] 2 PLR 72 considered. That did not absolve the decision-maker of the need to act on evidence, and there had to be evidence to provide the factual materials on which the planning decision-maker formed his conclusions. However, whether the decision-maker considered the material before him to be adequate for that purpose was a matter that lay within the scope of his planning judgment, as did his conclusion as to the planning outcome or outcomes. To that extent, the concept of “planning judgment” involved two stages, sufficiency of the evidence and conclusion on the merits. In the instant case, there was material on which a reasonable decision-maker could conclude that the environmental harm that would inevitably be occasioned by reactivation of the wharf could be reduced or mitigated by an improved design and disposition of the building.
The judge had wrongly considered that the inspector could only lawfully arrive at the overall conclusion that a better design might come forward if chapter and verse of such a design had been presented to him in the evidence, or elaborated by him on the basis of evidence. In light of the inspector’s comprehensive appreciation of the details of the scheme on offer, his criticisms of its scale and design, his legitimate emphasis on the benefits of the wharf’s reactivation, and his view that, on balance, the existing proposals would be contrary to the development plan, he was entitled to decide that there was a sufficient probability of an alternative, adjusted scheme coming forward and that, in those circumstances, the CPO should be confirmed. That was quintessentially an exercise of planning judgment.
(4) However, there had been procedural unfairness since the inspector had introduced the possibility of a satisfactory alternative scheme, as a ground or confirming the CPO, without giving the respondents a proper opportunity to deal with it. The inspector’s view that a better design was likely to come forward was central to his recommendation that the CPO be confirmed. That was never put to the parties at the inquiry as a distinct proposition. The respondents should have been given an opportunity to address the matter. It followed that the CPO had been unfairly, and therefore unlawfully, confirmed. The court invited written submissions on the question of the appropriate relief.
Charles Banner (instructed by the Government Legal Department) appeared for the first appellant; Russell Harris QC (instructed by Bircham Dyson Bell LLP) appeared for the second appellant; Peter Village QC and James Burton (instructed by Gowling WLG LLP) appeared for the respondents; David Wolfe QC (instructed by Leigh Day) appeared for the second interested party; Rupert Warren QC (instructed by Orion Shepherds Bush Market Ltd) appeared for the third interested party.
Sally Dobson, barrister
