Grafton Group (UK) Plc & Anor v Secretary of State for Transport & Ors

A compulsory purchase order may be confirmed even though planning permission for the promoted scheme has been refused. The order is not necessarily tied to a particular planning scheme, provided there is a reasonable prospect of permission and implementation for a use sufficient to justify acquisition, and the landowner has had a fair opportunity to address the basis of confirmation.

The reasonable-prospect requirement is substantive. It cannot be treated as an undemanding threshold: sound evidence must support the prospect that the land will be used for the purpose justifying its compulsory acquisition. A change in the justification for an order does not necessarily change its purpose, but procedural fairness requires disclosure and an opportunity to respond.

The claimants challenged the confirmation by the Secretary of State for Transport of a compulsory purchase order made by the Port of London Authority under the Port of London Act 1968. The order concerned Orchard Wharf, a safeguarded but inactive wharf on the River Thames.

The proposed use involved handling aggregates and cement by water, with concrete batching. A related planning appeal for the detailed scheme was dismissed because of its harmful design and appearance, while the compulsory purchase order was confirmed on the basis that an improved scheme could be permitted and implemented.

The central issues were whether the decision unlawfully relied on a changed justification, whether there was sufficient evidence of a reasonable prospect of implementation, and whether the claimants had received a fair opportunity to address the basis on which the order was confirmed.

1. The claim succeeded. The confirmation of the compulsory purchase order was quashed for lack of evidential support and procedural unfairness.
2. There was no legal rule requiring the order to fail merely because planning permission for the particular scheme promoted at the inquiry had been refused. The order could be confirmed if:
   1. there was a reasonable prospect of planning permission for aggregates and cement handling, with or without concrete batching;
   2. there was a reasonable prospect that the permitted use would be implemented;
   3. the anticipated use supplied sufficient public advantage to make compulsory acquisition compelling in the public interest; and
   4. any change in the basis of confirmation had been dealt with fairly.
3. The purpose of the order remained the reactivation of Orchard Wharf. The asserted capacity shortfall was part of the justification, not the statutory purpose. The justification could develop during the inquiry, provided the objector could fairly meet the revised case.
4. The Inspector was entitled to regard concrete batching as closely connected with water-borne freight handling. Bringing aggregates and cement by water and batching them at the wharf furthered the policy objective of modal shift.
5. There was sufficient planning judgment to support a conclusion that some acceptable aggregates and cement facility might obtain permission. There was, however, no sufficient evidence that a revised scheme would be implemented. The evidence and funding had been directed to the rejected scheme, and the lease arrangements did not establish an obligation to implement whatever alternative scheme might eventually be permitted.
6. The claimants had not been given a fair opportunity to address the materially different basis on which the order was confirmed. The inquiry had proceeded on the promoted scheme, with the promoters presenting no clear fallback case based on an unspecified alternative scheme. The Inspector’s questions revealed only the possibility of different outcomes, not the substance of the alternative case. A “minded to confirm” procedure could have addressed the problem.
7. The Inspector’s later witness statement explaining his report was inadmissible or, at least, highly undesirable and was disregarded.