“1. Grafton Group Ltd and British Dredging Services Ltd, Grafton, own a wharf, known as Orchard Wharf, at Leamouth on the north side of the River Thames, near its confluence with the River Lea, or Bow Creek. Orchard Wharf is unused and vacant, but for a few remaining derelict buildings. Grafton’s land here comprises 1.38 ha. of wharf, and a small additional strip. Grafton hoped at some stage to develop it for uses including residential, boat yard and a waste to energy facility, with the facility to handle river borne waste. 2. The Port of London Authority, PLA, made a compulsory purchase order, CPO, under thePort of London Act 1968 for the acquisition of Orchard Wharf, OW, and the strip, to bring it into active use as a wharf, handling river borne aggregates and cement, and for batching them into concrete. These are the CPO or Order lands. Grafton objected. 3. Aggregate Industries UK Ltd and London Concrete Ltd, AI/LC, sought planning permission for the operational development required for that activity. Its application covered the Order lands, and some other land owned already by the PLA, foreshore and jetty. The London Thames Gateway Development Corporation, at the material time (but no longer) the development control authority for the north side of the Thames (the Lower Lea Valley and London Riverside), granted the application for outline permission for the part within its area. The London Borough of Tower Hamlets refused the application for full permission for the operational development. The sole ground of refusal related to the impact of the buildings on the character and appearance of the area surrounding what was seen as a prominent riverfront location. AI/LC appealed against that refusal. 4. An Inquiry was held into the CPO and objections, and into the planning appeal. The Inspector recommended that planning permission be refused, but that the CPO be confirmed. The Secretary of State for Communities and Local Government accepted the recommendation that planning permission be refused. The Secretary of State for Transport, the confirming authority for the CPO, accepted the recommendation that the CPO be confirmed, and confirmed it. In each case, the relevant Secretary of State adopted the reasoning and accepted the conclusions of the Inspector.”
“The Port of London Authority (Orchard Wharf) Compulsory Purchase Order 2012 stated that it was made on28 May 2012 unders.11(2) of the Port of London Act 1968 for the purposes set out in s5(1A) and (2) of that Act. It would authorise the PLA to purchase compulsorily the Order lands ‘for the purpose of securing the provision of port and harbour services and facilities at Orchard Wharf pursuant to its undertaking and functions under’ s.5(1A) and (2). No greater detail of the purpose of the proposed acquisition was given in the Order.”
“7.77 The redevelopment of safeguarded wharves should only be accepted if the wharf is no longer viable or capable of being made viable for waterborne freight handling uses.”
“18. The legal process of safeguarding a wharf is not its declaration as such in a policy, but a Ministerial direction under theTown and Country Planning (General Development Procedure) Order 1995 …, Article 10(3), which enables the Minister to give directions requiring a local planning authority to consult with specified bodies before granting permission for particular types of development. The extant Direction was made in 2000, to allow for the powers of the Mayor, following an earlier Direction in 1997. It applies to applications for planning permission on OW of a particular type, and which would include non-wharf development, and requires the London Borough of Tower Hamlets to consult the London Mayor. So the policy in the London Plan applies to those wharves in respect of which a Direction is in force: they are ‘safeguarded’, even though the only requirement of the Direction is consultation with the Mayor.”
“(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court. (2) If any person aggrieved by— (a) a compulsory purchase order… desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court. (3) In subsection (2) above “relevant requirement” means— (a) any requirement of this Act… (4) An application to the High Court under this section shall be made within six weeks— … (b) … from the date on which notice of the confirmation or making of the order is first published in accordance with this Act…”
“Subject to the preceding provisions of this Part of this Act, a compulsory purchase order… shall not, either before or after it has been confirmed, made or given, be questioned in any legal proceedings whatsoever.”
“Subject to section 24 above, a compulsory purchase order… shall become operative on the date on which notice of the confirmation or making of the order is first published in accordance with this Act.”
“(1) The authorisation of a compulsory purchase shall be conferred by an order (in this Act called a ‘compulsory purchase order’). (2) A compulsory purchase order authorising a compulsory purchase by an authority other than a Minister shall be made by that authority and submitted to and confirmed by the confirming authority in accordance with Part II of this Act.”
“The debate between the successful claimants and the Secretary of State, and the Port of London Authority, is what is meant by ‘quash the compulsory purchase order’ [sc. in s.24(2)]. Mr Village QC submits that that means that the whole of the compulsory purchase order as made and as confirmed falls to be quashed. There is only one compulsory purchase order, he submits, and that is what is quashed. The contention from the Secretary of State and the Port of London Authority is that quashing the compulsory purchase order means quashing the confirmed compulsory purchase order as opposed to the made compulsory purchase order and that the effect of that, unlike the effect for which Mr Village contends, is that the process does not have to go back to square 1 with the making of a new compulsory purchase order and the start of a new inquiry process as a result of the objections which can be anticipated.”
“37… The sense of the rule of law with which we are concerned rests in this principle, that statute law has to be mediated by an authoritative judicial source, independent both of the legislature which made the statute, the executive government which (in the usual case) procured its making, and the public body by which the statute is administered… 40. None of this, of course, is to say that Parliament may not modify, sometimes radically, the procedures by which statute law is mediated. It may impose tight time limits within which proceedings must be brought. It may provide a substitute procedure for judicial review, as it has by a regime of statutory appeals in fields such as town and country planning, highways, and compulsory purchase: where, however, the appeal body remains the High Court. It may create new judicial authorities with extensive powers. It may create rights of appeal from specialist tribunals direct to the Court of Appeal. The breadth of its power is subject only to the principle I have stated.”
“My judgment, in summary, is that there was nothing wrong in principle in confirming the CPO despite the dismissal of the planning appeal. The Secretary of State was also entitled to conclude that there was a reasonable prospect of some form of aggregates/cement handling permission being granted. But that meant that the basis upon which the CPO was confirmed was different from the basis upon which it had been promoted throughout the Inquiry. If the Secretary of State concluded that there was a reasonable prospect of an acceptable scheme which was not significantly different in throughput from the appeal scheme, or of the implementation of a scheme which was significantly different in throughput, those conclusions had no evidential basis. The Secretary of State did not give Grafton a fair opportunity to deal with his basis for confirming the CPO, changed as it was from that presented at the Inquiry. Had he followed the suggestion of the Inspector about a ‘minded to confirm’ letter, these problems could have been avoided.”
‘There is no convincing evidence to suggest that the site could not operate economically nor that there is insufficient business to maintain its use for aggregates and concrete.’
“[t]he Secretary of State… has considered the whole of the Inspector’s Report and the arguments within it and accepts his conclusions and recommendations.”
“Confirmation of a CPO is not in law or policy necessarily tied to any particular scheme for which planning permission is simultaneously sought. So the refusal of planning permission for a particular scheme on grounds which the Inspector thought remediable, rather than fatal in principle to the very purpose of the CPO, does not necessarily require non-confirmation of the CPO, and the starting of the whole process all over again with a different planning application. So there was no error in principle of itself in confirming the CPO while dismissing the planning appeal.”
“If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State”
“12.16… [T]he enormity and extent of the proposed buildings would be evident in important public views. The structures would be much larger than their immediate neighbours and… they would appear massive, prominent and overbearing, particularly from the east side of the EIDB [East India Dock Basin]… Compared even with the desolate and vacant site, the proposals would have a significant and harmful impact on the appearance and setting of the EIDB… 12.19 The scheme would therefore harm the character and appearance of the area… 12.34 The appellants’ argument that there are limited opportunities when designing a water borne cargo facility such as this is an assertion which is not supported by a great deal of evidence… Although it is just conceivable that the appellants’ consultant engineers’ solution is the only arrangement that would achieve a viable concrete batching plant on the site, there is scant analysis to support the contention that there is no other possible layout or building configuration that would satisfy these requirements… 12.35… There is no evidence that an alternative design of batching plant or cement silo is not available or that these could not be custom-built to deal with the specific constraints, including views. Similarly, there is no evidence that cement silos must be of a specific height… 12.36 There is little evidence that thought has gone into alternative layouts and arrangements of structures to take account of the site’s environmental constraints or wider context…”
“12.74 Moreover, there is no reason why a better layout and design would necessarily involve significantly greater costs than the elaborate timber treatment proposed… 12.121… It is a matter of judgment as to whether or not a better design would be likely to come forward. The balance from the evidence is that it probably could and would. If followed, these recommendations do not require an unattainable goal, simply that good design skills are deployed to produce a scheme that properly considers how the necessary plant could be arranged and enclosed to minimise the harm to the environment.”
“142 Mr Banner and Mr Harris submitted that the Inspector was an architect, and so would have some expertise and experience in that capacity, which I am prepared to assume will have included some experience in this area, and that he went to sites where a variety of batching plants could be seen. The Inspector had had a thorough analysis of how the present scheme was arrived at; he had accepted that the flaws resulted from the way in which the design and layout parameters had been set in the first place. They had not been re-examined, yet it was they, in his judgment, which caused the serious problems. His views about what could be done started from that unchallengeable judgment. If he reached a judgment that there was a reasonable prospect that a scheme, which would be acceptable in planning terms, could be designed if one started at the proper place, respecting site constraints, that was a planning judgment, accepted by the Secretary of State, with which this Court should not interfere. 143 I accept that submission only up to this point: the Inspector would have been entitled to conclude, as a matter of planning judgment, even on the limited state of the evidence before him, that there was at least a reasonable prospect that a planning permission would be granted for the structures and buildings required for some level of aggregate and cement handling, probably but not necessarily with a batching plant, at OW. It is difficult to see, given the size of the site, and the policy support for such a use, that he could conclude otherwise… 144 What I cannot accept is the fullness of their submission that, if the Inspector did in fact conclude in [12.59] that the throughput of this unknown scheme would not be significantly different from the appeal proposal, that too was a legitimate planning judgment which required no more specific evidence to support it than the Inspector’s own expertise. That is all that Mr Banner and Mr Harris could rely on, for there was no more specific material before the Inspector or referred to by him. If he concluded that a ‘slight’ alteration to the scale of plant and storage, with better design and layout could produce an insignificantly different throughput, I consider that he required evidence, which he did not have, to reach so specific a conclusion. This could have been by way of simple indicative but measurable material. He needed to have evidence in view of his many and very serious criticisms of flaws which went right back to the beginning of the design and layout of the appeal scheme, and in view of the varied constraints imposed by the surrounding area. The more fundamental the changes required, the more difficult it is for that judgment to be made without specific evidence. He did not say that it was just a question of lopping a few feet off a building’s length or height; there was no specific objectionable but removable feature which he identified. He has not said that a particular parameter such as height limits or limits on the length of the buildings is to be observed or that an area of wharf should be excluded from development, so that the effect of that on throughput could be considered or proven. He put forward no suggestions for comment. There is no description by him of what changes would meet his requirements, and how…”
“[c]ontrary to the evidence from some witnesses on both sides, refusal of planning permission on account of poor design should not necessarily lead to non-confirmation of the CPO” (paragraph 12.73). At all events, the judge observed at paragraph 165: “The Inspector’s questions revealed nothing specific about the basis upon which he might recommend that the Secretary of State dismiss the planning appeal and confirm the CPO. He did not ask questions about whether a redesign could be accomplished with only a minor reduction in throughput if any, or records no answers if he did. He did not suggest that that was the basis upon which he might recommend confirmation of the CPO and dismissal of the appeal.”
“The Inspector’s questions did not make the confirmation fair in the circumstances. The relevant point is not whether the questions revealed the possibility of there being two different decisions, for they certainly did that; and the persistence of the Inspector in asking it of so many witnesses meant that that was clearly something in his mind. The real point is whether, knowing of that possibility, Grafton had a fair chance to address the basis upon which the CPO was eventually confirmed without the planning appeal being allowed. It did not.”
“Where, as we submit will be the case here, planning permission is refused, then there is no conceivable basis upon which it would be appropriate to confirm the CPO. This represents the clearest impediment to implementation and in answer to the Inspector’s questions of all the planning witnesses (and in accordance with their responses) we submit that if planning permission is refused, the CPO must fail. There is no evidence that some ‘other’ scheme exists, none has been put forward, and all parties have proceeded on the basis that the scheme before this inquiry is the scheme which underpins the CPO…”