(1) Grafton Group (UK) Plc and Another v (1) Secretary of State for Transport (Defendant/First Appellant) (2) The Port London Authority (First Interested Party/Second Appellant) (1) James Joseph Horada (on behalf of the Shepherds Bush Market Tenants' Association) (Second Interested Party) (2) Orion Shepherds Bush Market Ltd (Third Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice David Richards |
| Judgment Date | 21 June 2016 |
| Neutral Citation | [2016] EWCA Civ 561 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2016 |
| Docket Number | Case Nos: C1/2015/1582 & 1583 |
[2016] EWCA Civ 561
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE OUSELEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Longmore
and
Lord Justice David Richards
Case Nos: C1/2015/1582 & 1583
and
Charles Banner (instructed by the Government Legal Department) for the First Appellant
Russell Harris QC (instructed by Bircham Dyson Bell) for the First Interested Party/Second Appellant
Peter Village QC and James Burton (instructed by Gowling WLG LLP) for the Respondents
David Wolfe QC (instructed by Leigh Day) for the Second Interested Party
Rupert Warren QC (instructed by Orion Shepherds Bush Market Limited) for the Third Interested Party
Hearing date: 9 – 10 2016
Approved Judgment
LAWS LJ:
INTRODUCTION
These are two appeals against judgments of Ouseley J given in the Administrative Court on 21 April 2015 ( [2015] EWHC 1083 (Admin)) and 27 April 2015 ( [2015] EWHC 1889 (Admin)). Both judgments were given in the same set of proceedings, a challenge to a compulsory purchase order (CPO) brought under s.23 of the Acquisition of Land Act 1981 (the 1981 Act). By his first judgment Ouseley J upheld the challenge (on certain grounds only), and by the second decided what was the nature of the relief that might be given pursuant to s.24 of the 1981 Act. The claimants, to whom I will refer as Grafton, are the relevant landowners. The Secretary of State for Transport was named as defendant. The Port of London Authority (the PLA), Aggregate Industries UK Ltd and London Concrete Ltd were joined as interested parties. The Secretary of State and the PLA appeal by permission of the judge against the order for relief made pursuant to the second judgment. Further interested parties have been joined in this court so that they might advance submissions on that appeal; I shall give details in due course. The PLA appeals against the first, substantive judgment by permission of Lewison LJ granted on consideration of the papers on 18 December 2015. Grafton have served a respondent's notice seeking to uphold the judge's substantive decision on further grounds, namely those rejected by him. For reasons which I will explain in due course, it has not been necessary to enter into those points.
In his first judgment Ouseley J crisply introduced the case as follows:
"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 the Port 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."
At paragraph 7 the judge gave these details of the CPO:
"The Port of London Authority (Orchard Wharf) Compulsory Purchase Order 2012 stated that it was made on 28 May 2012 under s.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."
Grafton brought these proceedings to challenge the CPO decision. Ouseley J upheld the claim on two seemingly interlinked grounds: (1) the Secretary of State confirmed the CPO on a different basis from that upon which it had been promoted throughout the Inquiry, and did so without legally sufficient evidence (first judgment, paragraph 117); (2) in the circumstances that was unfair to Grafton, who did not have "a fair crack of the whip" (paragraph 156). These conclusions are challenged in this court by the PLA, with the support of the Secretary of State, under what have been called Grounds 2 and 3; these are the Grounds for which Lewison LJ gave permission. In his second judgment Ouseley J held that in consequence of his substantive decision, by force of s.24 of the 1981 Act the CPO had to be quashed in its entirety: it was not open to the court to quash only the Secretary of State's confirmation of the CPO and leave the Order as made by the PLA intact – which would, as in effect the judge acknowledged (paragraph 10), have sufficed for the justice of the case. This conclusion is challenged in Ground 1, for which the judge gave permission and on which the Secretary of State has carried the burden of the argument.
PLANNING POLICY
At paragraphs 14 – 17 of his judgment Ouseley J set out material extracts from the London Plan (part of the local development plan) which commend (Policy 7.26B) the protection of "existing facilities for waterborne freight handling use" and increased "use of safeguarded wharves [which include Orchard Wharf (OW)] for waterborne freight transport, especially on wharves which are currently not handling freight by water". The supporting text, as the judge noted (paragraph 15) has this:
"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."
The legal means by which wharves are safeguarded are unusual. Ouseley J described the position as follows:
"18. The legal process of safeguarding a wharf is not its declaration as such in a policy, but a Ministerial direction under the Town 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."
Supplementary planning guidance ("Safeguarded Wharves on the River Thames: London Plan Implementation" – SWIR) recommended that OW should retain its safeguarded status. As the judge said (paragraph 20), at the time of the Inquiry the SWIR was under review by the Greater London Authority. The Safeguarded Wharves Review of March 2013 (SWR) contained its final recommendations. Grafton had been one of the consultees. It had not been approved by the time of the Inspector's Report, nor by the time of the two Ministerial decisions. The SWR recognised weaknesses in the SWIR, but recommended the continued safeguarding of OW: the site was "viable, well located to serve central and inner London locations and can satisfy an element of the forecast shortfall of aggregate supply in the sub-region".
GROUND 1 – RELIEF
I turn first to the appeal brought by the Secretary of State and the PLA against the order for relief made by Ouseley J following his second judgment.
S.23 of the 1981 Act provides so far as relevant:
"(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...
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