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

Under section 24(2) of the Acquisition of Land Act 1981, a compulsory purchase order is the single instrument made and then confirmed. Quashing it ordinarily removes the whole order, not merely its confirmation. The statutory scheme permits no inherent lesser remedy.

A planning decision-maker must have evidential material on which to exercise planning judgment. Detailed evidence of a replacement scheme is not invariably required where the decision-maker has adequately assessed the proposed scheme, its defects and the relevant planning benefits. Procedural fairness nevertheless requires an affected party to have a fair opportunity to address a distinct basis on which a CPO is confirmed.

The Port of London Authority made a CPO to acquire Orchard Wharf for reactivation as a waterborne aggregates and cement handling wharf. The proposed operational development was refused planning permission, but the Inspector recommended that the CPO be confirmed because a better-designed scheme was likely to be achievable.

Ouseley J, in [2015] EWHC 1083 (Admin), held that the CPO had been confirmed without sufficient evidence and unfairly. In [2015] EWHC 1889 (Admin), he held that section 24 of the Acquisition of Land Act 1981 required the whole CPO to be quashed. The Secretary of State and the Authority appealed on relief; the Authority also challenged the findings on evidence and fairness.

1. The appeals did not displace the conclusion that the CPO had been unlawfully confirmed. Ground 2, concerning evidential sufficiency, succeeded. Grounds 1 and 3, concerning relief and procedural fairness, failed.

2. Section 24(2) of the Acquisition of Land Act 1981 treats a CPO as the instrument from its making through to its confirmation. A quashing order deprives that instrument of effect as though it had never existed. Quashing confirmation alone would leave the made order with legal effects. The words allowing the court to quash a provision, or an order so far as it affects the applicant’s property, exhaust the statutory qualifications to whole-order relief.

   Section 25 excludes any inherent power to grant a different and lesser remedy. The statutory remedy was effective, even if it could operate bluntly in a case where the defect arose at confirmation.

3. The Secretary of State had adopted the Inspector’s report in full. The Inspector was entitled, as a matter of planning judgment, to conclude that an alternative design with the same or a similar throughput was sufficiently likely to come forward. He had closely examined the proposed development, identified why its scale and design caused harm, and weighed the benefits of reactivating the wharf. The judge had therefore drawn an unjustified line between a permissible judgment that some scheme could be approved and an impermissible judgment about broadly similar throughput.

4. However, the Inspector’s conclusion that a better design was likely to come forward was a distinct basis for confirming the CPO. It had not been advanced by the promoter or put sufficiently to the parties at the inquiry. Grafton had no fair opportunity to address it, including its lack of specificity. That procedural unfairness made the confirmation unlawful.

5. The court invited written submissions on the consequential relief.

• Court of Appeal (Civil Division) Allowed the appeal on evidential sufficiency, but dismissed the appeals on statutory relief and procedural fairness. It invited written submissions on consequential relief.
• Administrative Court Ouseley J upheld the challenge to the CPO on evidential and fairness grounds in [2015] EWHC 1083 (Admin) . He held in [2015] EWHC 1889 (Admin) that section 24 of the Acquisition of Land Act 1981 required quashing of the whole CPO.