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High Court Judge quashes CPO for London Wharf


The High Court has quashed a compulsory purchase order (CPO) for the unused and vacant Orchard Wharf. Mr Justice Ouseley ruled that the reasoning that led to the decision to confirm the CPO was 'unfair' on the landowners as the decision was based on information that was not put forward for the inquiry.

The Port of London Authority had hoped to bring the wharf back into use for handling river borne aggregates and cement to increase the use of the Thames as a transport link. Aggregate Industries UK Ltd and London Concrete Ltd had made a planning application for the operational development required for this.

Following the recommendation of the planning inspectorate, the secretary of state for transport confirmed the CPO even though the secretary of state for communities and local government had rejected the planning appeal for the intended development on the site. The secretary of transport confirmed the CPO on the basis that an alternative scheme might secure planning permission.

In a decision issued last month, Mr Justice Ouseley considered several possible problems with the secretary of transport's decision. He held that "there was nothing wrong in principle in confirming the CPO despite the dismissal of the planning appeal," and that "the secretary of state was also entitled to conclude that there was a reasonable prospect of some form of [permission] being granted".

However, this means that "the basis upon which the CPO was confirmed was different from the basis upon which it had been promoted throughout the inquiry," the ruling said.

The ruling said that confirmation of a CPO does not necessarily have to be tied to a specific planning permission, planning application or appeal. A CPO can be made and confirmed even if no planning permission has been sought as long as certain requirements have been considered and met.

The Court also considered if there was sufficient evidence to conclude that there was a reasonable prospect of planning permission being granted and implemented which justified a CPO. No alternative designs, layouts or changes were discussed during the inquiry and the design concerns were not specifically addressed.

Although the ruling acknowledged that planning inspectors can come to their own views and formulate evidence based on their expertise and information collected from site visits, he did not accept that there was sufficient evidence in this situation.

"A CPO cannot lawfully be confirmed, after the scheme relied on has been rejected, on the basis of something which, at best, is no more than an undisclosed concept, perhaps no more than a hunch, in the mind of the Inspector. That provides no evidential basis for confirmation of a CPO. The confirmation of a CPO has to be more fully formed, disclosed, reasoned and justified than that," it said.

Mr Justice Ouseley further confirmed that "the decision must be quashed for the want of evidence to support crucial conclusions."

Finally, the last issue the Court considered was if the landowners had a fair opportunity to deal with the change in the basis of the confirmation. It had been previously agreed at the inquiry that the CPO would not be confirmed if the planning appeal was dismissed. The planning inspector had specifically asked each witness this point and had received the same answer from all. It had been suggested that the planning appeal could still be allowed even if the CPO was not confirmed, but the reverse was not expected.

Therefore, Mr Justice Ouseley held that "what happened was unfair... the [landowner] did not have a fair crack of the whip." The basis of the confirmation was not the same as discussed at the inquiry and the landowners did not have a fair chance to deal with this, they could not have anticipated the change of basis. The landowner was not given the opportunity to address any changes to the scheme, whether substantial or minor and did not have the chance to explore on the prospect of the permission being implemented on any basis other than the one it was promoted.

The secretary of state for transport will now have to reassess the plans to bring Orchard Wharf back into use.

Planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com, said: "There is a clear distinction made here, the CPO here could have been confirmed, even if no planning permission had been sought at all, provided it can be shown that there was a reasonable prospect of the wharf receiving planning permission and it could be evidenced that there was reasonable prospect that such a permission would be implemented. Here, evidence was to the effect that the 'appeal proposal was the scheme which, at great cost, [the developer had] designed, was defending, and was prepared to build, as it met their needs'."

"In the judge’s eyes, it was as such doomed to failure, as the CPO and the very specific nature of the planning appeal had been 'intrinsically linked'. This raises a clear warning flag to those progressing evidence relating to the confirmation of a CPO which is reliant, or at least provided in conjunction with, an associated planning permission. The evidence must demonstrate that a planning permission can come forward, not only the planning permission in front of Inspector."

"CPOs have very high success rates at inquiry", said Marcus Bate, another planning expert at Pinsent Masons. "Hard lessons need to be learned from the few failures, like this one. CPO cases should focus on the underlying scheme and not rely too much on being tied to a specific planning permission. This means that alternative planning proposals ought to be considered in appropriate circumstances in order to demonstrate that there is a realistic prospect of securing planning permission."

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