Appeal judges uphold decision by High Court to quash CPO for wharf

Appeal judges have upheld the High Court's quashing of a compulsory purchase order on an east London wharf.

The Port of London Authority (PLA) sought to bring Orchard Wharf at Leamouth into use to handle aggregates and two companies, Aggregate Industries and London Concrete, made a planning application for the installations required for this.

Landowner Grafton Group however wanted to try to seek planning permission for residential development.

The PLA, made a compulsory purchase order under the Port of London Act 1968, which was later confirmed by the Secretary of State for Transport.

The London Borough of Tower Hamlets had though refused the application for the operational development, citing the impact of the proposed buildings on the character and appearance of a prominent riverfront location.

Following an inquiry a planning inspector recommended that planning permission be refused, but that the CPO be confirmed, positions accepted by the Secretaries of State for Transport, and for Communities and Local Government.

The High Court then upheld Grafton’s challenge to the CPO, noting “the basis upon which the CPO was confirmed was different from the basis upon which it had been promoted throughout the inquiry” and that Grafton did not have “a fair crack of the whip”.

In its appeal the PLA argued that only confirmation of the CPO should be quashed not the CPO itself.

According to Matrix Chambers, whose David Wolfe QC was involved in the case, the Court of Appeal in Grafton Group (UK) Plc & Anor v Secretary of State for Transport & Anor [2016] EWCA Civ 561 held that the judge had been correct to interpret s 24(2) of the Acquisition of Land Act 1981 as only provided authority to quash the whole of the CPO. “If Parliament had intended to empower the court to quash the confirmation only, thereby leaving the CPO intact, it would have said so.

“However, the court found that the judge had erred in holding that there was insufficient evidence to support the CPO confirmation, as the confirmation did not have to be linked to any particular planning permission sought. It was enough that there was a sufficient probability that an alternative scheme would be acceptable. The inspector had indicated that this was the case,” Matrix said.

The set added: “The court upheld the judge’s decision that the respondent had been treated unfairly. The PLA had not argued during the inquiry that an alternative design could be possible, and the proposition that a better design could be chosen was never put to the parties. As this had been the basis upon which the Secretary of State confirmed the CPO, it was unfair that the respondent had not been given an opportunity to address this point.”

The Court of Appeal asked for written submissions on relief.

Mark Smulian