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

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.

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.

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.

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.

Grafton challenges that CPO decision under s23 Acquisition of Land Act 1981, which provides for the normal grounds for review of this sort of decision: the CPO was beyond the powers of the Secretary of State; procedural requirements were not complied with.

The Claimant raised many grounds, which can be grouped as follows. (1) Policy: the Inspector and Secretary of State failed to reach conclusions about the basis upon which OW continued to be safeguarded as a wharf in London Plan policy; the policy had been misconstrued as supporting a CPO; the policy test for a wharf’s viability was wrongly treated as the same as the test justifying its compulsory acquisition; the policy did not support concrete batching on wharves. (2) The change in purpose or justification for the CPO: the Inspector ignored material factors or reached unreasonable conclusions, adopted by the Secretary of State, in dealing with the quantitative need for OW for handling aggregates, and once that need was shown not to exist, the purpose for which the Order lands were required, or the justification for the CPO, therefore changed so as to prevent the lawful confirmation of the CPO. (3) The consequences of the refusal of planning permission: the refusal of planning permission meant that there was no reasonable prospect that the scheme for which the CPO was being promoted would go ahead; the Inspector failed to seek submissions on the possibility that he might recommend that the CPO be confirmed despite recommending dismissal of the planning appeal; and there could be no consideration of the benefits of any alternative, and no opportunity for Grafton to deal with them as warranting the CPO.

The Port of London Authority (Orchard Wharf) Compulsory Purchase Order 2012 stated that it was made on 28 May 2012 under s11 (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 [OW] pursuant to its undertaking and functions under” s5(1A) and (2). No greater detail of the purpose of the proposed acquisition was given in the Order.

The purpose as set out in the Order reflects the broad power of compulsory purchase in s11 in respect of “any land which the PLA require for the purposes of the undertaking….”. The general powers and duties of the PLA in s5(1A) include power “to provide, maintain, operate and improve such port and harbour service and facilities in, or in the vicinity of, the Thames, as they consider necessary or desirable….”. Subsection (2) gives the PLA power “either by themselves or by arrangement between themselves and another person to take such action as the Port Authority consider necessary or desirable whether or not it is in the vicinity of the Thames …” for various broadly expressed purposes.

Grafton accepted that this power was broad enough to cover the acquisition of the Order lands for river borne aggregate and cement handling, as well as concrete batching. The CPO purpose as expressed in the CPO was wide enough for that as well, as its language reflects that of s5(1A).

The approach to the making and confirming of a CPO can be gathered from two Court of Appeal decisions, commonly cited together for their differing tones and emphasis, the vigour of the language of the earlier tempered by the later, and synthesised along with other principles relevant to a challenge of this sort in Margate Town Centre Regeneration Co. Ltd and others v SSCLG and Thanet District Council [2013] EWCA Civ 1178 at [17]:

“A CPO should only be made where there is a compelling case in the public interest. An acquiring authority should be sure that the purposes for which it is making a CPO sufficiently justify interfering with the human right of those with an interest in the land affected”: see para. 16 of Circular 06/2004. To similar effect are certain observations of Lord Denning MR in Prest v Secretary of State for Wales [1982] 266 EG 527.

A consequence of principle (a) is that “the draconian nature of the order will itself render it more vulnerable to successful challenge on Wednesbury / Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on the merits”: per Slade LJ in De Rothschild v Secretary of State for Transport (1988) 57 P. & C.R. 300.”

ODPM Circular 06/2004 “Compulsory Purchase and The Crichel Down Rules” sets out the policies which Secretaries of State, acting as confirming authorities, will adopt in that task. They echo the authorities. Paragraphs 16-19 of the Memorandum to the Circular are headed “Justification for making a Compulsory Purchase Order”. It is for the acquiring authority to decide how best to justify its proposals. But the confirming Minister would consider the following: the CPO should only be made “where there is a compelling case in the public interest”; the acquiring authority should be “sure that the purposes… sufficiently justify interfering with the human rights” of the landowner. The more comprehensive the justification, the stronger the case, but each case will be considered on its merits, and the Minister will not require “any particular degree of justification for any specific order”. It is not necessary to show that the land is required immediately, but the acquiring authority is likely to have to show that it has “a clear idea of how it intends to use the land” and “that all the necessary resources are likely to be in place within a reasonable timescale.”

Paragraphs 22-23 deal with “Impediments to implementation.” The various factors to be taken into account include the need for planning permission.

“22.

In demonstrating that there is a reasonable prospect of the scheme going ahead, the acquiring authority will also need to be able to show that it is unlikely to be blocked by any impediments to implementation. In addition to potential financial impediments, physical and legal factors need to be taken into account. These include the programming of any infrastructure accommodation works or remedial work which may be required, and any need for planning permission or other consent or licence.

23.

Where planning permission will be required for the scheme, and has not been granted, there should be no obvious reason why it might be withheld. In particular, this means that, irrespective of the legislative powers under which the actual acquisition is being proposed, the provisions of section 38(6) of the 2004 Act require that the scheme which is the subject of the planning application should be in accordance with the Development Plan for the area unless material considerations indicate otherwise.”

Appendix A to the Circular sets out how the acquiring and confirming authorities should approach CPOs made under s226 of the Town and Country Planning Act 1990, acquisition for planning purposes. Paragraph 16 sets out the factors which the confirming Minister would be expected to consider. Although s226 TCPA 1990 was not the power invoked here, it was not disputed before me that the framework was relevant to this CPO, and no direct challenge was made to its use by the Inspector as the framework for his analysis and conclusions here. Paragraph 16 looks to (1) whether the purpose for which the land is being acquired “fits in with the adopted planning framework for the area”, (2) the extent to which the proposed purpose contributes to the “economic, social or environmental wellbeing of the area”, (3) the potential financial viability of “the scheme”, relevant to whether there is a reasonable prospect that the scheme will proceed and (4) whether the purpose behind the acquisition could be achieved by other means.

The relevant part of the planning framework is the London Plan, part of the development plan. There are two policies I need to refer to in particular. Policy 7.26B aims at increasing the use of the “Blue Ribbon Network”, BRN, for freight transport. This BRN includes the Thames, and the River Lea. (I was told that the tidal part of the river is usually but not consistently called the Lea and the non-tidal part, the Lee. Leamouth is also spelt Leemouth.) Policy 7.26B reads:

“Development Proposals:

a.

should protect existing facilities for waterborne freight handling use. The redevelopment of safeguarded wharves for other land uses should only be accepted if the wharf is no longer viable or capable of being made viable for waterborne freight handling (criteria for assessing the viability of wharves are set out in paragraph 7.77)… The Mayor will review the designation of safeguarded wharves prior to 2012.

b.

which increase the use of safeguarded wharves for waterborne freight transport, especially on wharves which are currently not handling freight by water, will be supported…

d.

close to navigable waterways should maximize water transport for bulk materials, particularly during demolition and construction phases.”

The supporting text, which is not part of the policy but which is considered by the independent Inspector and commented on during the statutory process of development plan examination, says:

“7.76

The safeguarding of a number of wharves is a well established aspect of planning in London. The safeguarding directions, some of which have been in existence since 1997, have successfully maintained a number of sites which can now be used to transport goods through London. The Mayor will support positive action, including the use of compulsory purchase powers where necessary, to bring inactive sites into use. The specific sites that are safeguarded are set out in the Safeguarded Wharves Implementation Report, January 2005...

The safeguarding will be reviewed and updated approximately every five years…

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.”

There then follows the list of criteria for viability for the purposes of the policy.

Policy 5.20 seeks to ensure an adequate supply of aggregates to London, including by importing them by sustainable transport modes. To reduce the environmental impact of the use of aggregates, plans should safeguard wharves, minimise the transport of aggregates by road, and maximise their transport on the BRN.

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 SI No.419, 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.

The policy was supported from 2005 by supplementary planning guidance, in force at the time of the Inquiry, known as the “Safeguarded Wharves on the River Thames: London Plan Implementation Report”, SWIR. In addition to assessing the requirement for water-borne freight, it provided information on the safeguarded wharves and those proposed for safeguarding, or for safeguarding no longer. OW was recommended to retain its safeguarded status. It was regarded, by virtue of its “site characteristics and market placement” as capable of being made viable for cargo-handling, particularly for transhipped aggregates, and a then recent marketing exercise by the PLA, Greater London Authority, GLA and the LDA had led to seven formal bids from the cargo industry for using it for construction materials or waste.

The SWIR was under review by the GLA at the time of the Inquiry. The Safeguarded Wharves Review of March 2013, SWR, contained its final recommendations, which were for the Secretary of State for Communities and Local Government to accept or reject by way of keeping or changing safeguarding Directions. It had been the subject of consultation, including with Grafton. It had not been approved by the time of the Inspector’s report, nor by the time of the two Ministerial decisions. Indeed, no decisions on it have yet emerged. The SWR recognised weaknesses in the SWIR, but it 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.” It referred to the efforts by the PLA and GLA to obtain planning permission and, their intention after confirmation of the CPO, to reactivate it as a wharf.

A summary is required to set the context for the various grounds of challenge. In section 5 of his report, the Inspector dealt with planning policy and described the wharf capacity shortfall identified in the SWIR and SWR. In the next three sections, he summarised the PLA case made jointly with AI/LC, the case made by the London Borough of Tower Hamlets, and Grafton’s case. The GLA put in written submissions only, dealt with in section 10. Section 12 contains his conclusions. He dealt with the planning appeal first.

He set the context of the policy and site constraints: there was “no hint” that the site would cease to be safeguarded, regardless of the ongoing SWR; [12.2]. But for a variety of reasons, OW was at a “special location which, from what could be seen on the boat trip and site visits, is probably more sensitive to its context than most of the other wharves at the eastern end of the Thames.” [12.9].

The main structures would be very large, the cement storage enclosure and the concrete batching plant equating to 7-8 storeys of residential development; the aggregates store would equate to 5 ½ storeys, over 100m long. The early drawings took a functional approach to layout and design, and although some details had been worked up, there had been very little change to the layout; [12.12]. “The enormity and extent of the proposed buildings would be evident in important public views….they would appear massive, prominent and overbearing…;” [12.16]. After several further quite severe criticisms of the impact of the design and layout of the site as proposed in the full planning application, the Inspector concluded that the scheme would harm the character and appearance of the area.

Next, he concluded that considerable weight should be given to LP policy 7.26B under which OW was safeguarded, and which was against any other form of development than wharf use. Therefore environmental policies could not always stifle reactivation of a wharf; the benefits of reactivation could outweigh harm to character and appearance in principle; [12.22]. Then he rejected Grafton’s argument that a concrete batching plant fell outside the scope of and was not supported by policy 7.26, to which I shall have to return. The weight given to the safeguarding would be considerable so long as the Direction remained in place, regardless of disputes over the SWR 2013; [12.27].

The language of policy 7.26 was such that the balance should normally be struck in favour of reactivation; [12.31]. However, in striking that balance between reactivation and its effects on the surrounding area, all reasonable steps had to be taken to reduce the impact; that had not happened as the crucial parameters had been taken as fixed inputs. There was no evidence that the projected throughput required the size and disposition of structures presented, nor that a scheme would be uneconomic with a smaller throughput; [12.33]. The balance was to be struck between a very harmful wharf and a less harmful wharf, rather than between a very harmful wharf and no wharf at all; [12.47]. His overall conclusions on the planning appeal were [12.61] that a less harmful but viable scheme could be devised, which would accord with the Development Plan. But the scheme was contrary to it at the present, and so planning permission should be refused.

The Inspector introduced his analysis of the CPO with a non-contentious summary of the policy framework, taking the structure from Appendix A to Circular 06/2004. “Like the main parties”, he largely structured his conclusions to follow those considerations; [12.63].

He did not see it as his task to comment on the SWIR 2013, though recognising that if OW were released from safeguarding, his report should be viewed in a very different light. But until that happened, and so long as OW were safeguarded, policy 7.26 applied regardless of any flaws in the SWR 2013; [12.64-65]. The policy framework supported reactivation and acquisition; [12.66]. The objectors’ intention not to reactivate the wharf, but rather to landbank it made a strong case for acquisition; [12.67]. Policy did not require an urgent demand or a current capacity deficit; but if a wharf were viable in policy terms, that added considerable weight to the CPO; [12.69].

Economic, social and environmental well-being were considered next. He commented under the latter heading that , “contrary 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”; [12.73]. He then dealt with the advantages in modal shift of the proposed use by AI/LC of OW, concluding, [12.83], that while the unnecessary harm to the character and appearance of the area counted against the planning appeal, “it need not count heavily against the CPO”, because “there would remain a reasonable prospect that an improved design and layout would be granted planning permission and could achieve the goal of reactivating the wharf without the harm identified.” AI/LC were committed to leasing the site, and that lease was not tied to a specific planning permission.

The Inspector held that it was for the SSCLG to decide on the SWR 2013; and he proceeded on the basis that the SWR would not alter the safeguarded status of OW, creating a strong presumption that it could be used as a wharf which would not happen with Grafton’s aspirations; [12.91].

The Inspector did not accept Grafton’s criticisms of the demand forecast in the SWR, but, on Grafton’s criticisms of the capacity analysis, accepted that at least half of the forecast shortfall in capacity in the NE London sub-region should be discounted, leaving less than half of the 0.8m tonnes pa forecast shortfall in the SWR; [12.98].

The Inspector roundly rejected Grafton’s argument, [12.104], that proof of a quantitative shortfall was necessary to justify the CPO: “That is not the test”. Two other important factors came into play: the policy support for the CPO, and the “considerable degree of modal shift within London which it would achieve.” He rejected [12.112] what he described as Grafton’s contention that there had to be “an irrefutable need for wharfage”; [12.113] “all that is required is a need as found at PW [referring to a 2006 planning appeal at Peruvian Wharf] and a degree of justification to be determined on its own merits”.

Finally, he dealt with the “compelling case”. This is important context for the submissions which were made by Mr Village QC for Grafton. The Inspector found, [12.117], no prospects of negotiation; the CPO was supported by the adopted planning framework, by its effect on the well-being of the area; “viability is probable and funding is in place demonstrating a reasonable prospect that the scheme would proceed. The purposes of the CPO, securing the provision of port and harbour services and facilities at OW, could not be secured by other means.” In [12.118], he said :

“It cannot be in the public interest for this important site to remain vacant when there is a better than reasonable prospect of a scheme being developed which would meet the purposes of the 1968 Act and would be supported by all up-to-date documents within the development plan. [s4] [8.6-8.8]”

He saw the choice as being between maintaining the safeguarding knowing that the wharf would not be reactivated, which he saw as pointless, and pursuing the CPO. [12.119]

“Providing OW is safeguarded and viable, with a reasonable prospect of a suitable scheme being delivered, which it is, this provides strong support for finding a compelling case in the public interest.”

None of the flaws in the forecasts showed that there would be poor prospects for the future trading of OW, or that its use would be redundant, and so those flaws should not be allowed to undermine what was an otherwise compelling case.

While it would be wrong, [12.120], to confirm a CPO when there was “little or no likelihood that the wharf would be needed, to exclude the possibility of a CPO where there is clear viability and demand would be to invalidate the policy”. The balance of the evidence was that a better designed scheme would come forward; the CPO did not have to be refused simply because the planning appeal was to be dismissed; [12.121]. In [12.122] the Inspector referred to the sending of a “minded to confirm” letter to AI/CL as one way in which delays could be reduced, since they could make the necessary further planning application speedily, and before confirmation of the CPO.

So he recommended that the planning appeal be dismissed but that the CPO be confirmed. These conclusions and recommendations were accepted by the Secretaries of State.

Although OW was a safeguarded wharf within policy 7.26 of the London Plan, the basis for continuing the safeguarding of the wharves currently safeguarded was considered by the GLA through the SWR 2013, in its final draft form at the time of the Inquiry. It would be for the SSCLG to decide, in the light of his decisions on the SWR, what wharves should be safeguarded in which London sub-region in the light of whatever conclusions he reached about demand and capacity. Were OW no longer to be safeguarded, the policy underlying the compulsory acquisition would cease to apply to it, and that would at least severely undermine if not destroy the case for the CPO.

Mr Village, and Grafton’s team, had subjected the SWR 2013 at the Inquiry to a sustained attack, as Mr Village described it. The SWR 2013, he had submitted, identified a shortfall in wharf capacity which, on examination, did not and would not exist. The continued safeguarding of OW therefore could not be regarded as certain. That was a matter for the SSCLG to consider, since some wharves might no longer be safeguarded if he accepted that there was significant over-capacity; indeed, the SWR had already proposed that nine wharves be released from safeguarding, even on its overstated need for wharf capacity. There were also site specific reasons why OW might cease to be safeguarded, in substance noted by the Inspector in his consideration of the site context, and the character and appearance of the surrounding area, since, unlike other north-east bank wharves, it was close to a nature reserve, housing, a new cycle bridge, and the Trinity Buoy Wharf heritage and cultural site.

In order to deal with this uncertainty over the status of OW, Grafton had asked the SSCLG not to reach a decision on the SWR before receiving the Inspector’s report on the Inquiry so that the SSCLG’s decision on the SWR would be informed by what the Inspector said in his report. This assumed that the decision on the SWR would otherwise precede the decision on the CPO. Once the decision on the CPO was to come first, as turned out to be the case, the Secretary of State for Transport either had to reach a view in the CPO decision on the weight to be attached to the SWR because of its effect on the continued safeguarding of OW, or else had to defer the CPO decision until the SSCLG had reached his decision on the SWR. The one approach which the Secretaries of State could not lawfully or fairly adopt was to treat the safeguarding of OW as weighty in terms of policy 7.26 and yet to ignore the strength of the attack on the SWR as to the basis for that very safeguarding. Yet that, submitted Mr Village, is what happened.

They could only grapple with that issue by reaching a view on Grafton’s case at the Inquiry that the SWR was flawed in its assessment of the need for wharf capacity, and the retention of the safeguarding of OW. This was not confined to the intrinsic flaws in the SWR, but encompassed Grafton’s case that the SWR was tainted with bias. Neither the Inspector, nor the Secretary of State for Transport, grappled on either ground with the weight to be given to the SWR, and to the continued safeguarding it proposed, before confirming the CPO. They had therefore ignored a material consideration, and neither had given adequate reasons for any conclusion which they reached upon a principal issue. They had wrongly elevated the safeguarding to a justification of itself for the CPO.

These points were the more important in the context of a CPO, where the safeguarding which caused policy 7.26 to apply to OW had never been subject to any independent scrutiny on its merits, whether when the London Plan was adopted in 2004, consolidated in 2008 or in the SWR 2013. The SWIR of 2005 was recognised generally as flawed.

I have some sympathy for Mr Village’s position, but I am not persuaded that he demonstrated errors of law.

The Inspector recorded accurately the progress made in cross-examination by Mr Village and the resulting submissions he made on the absence of the capacity shortfall asserted in the SWR, and the accepted unreliability of the SWIR. He dealt with those issues, in [12.92-12.96] on demand for wharfage, and [12.97-98] on capacity.

The SWR forecast a shortfall in wharfage capacity in the NE sub-region of 0.8m Tpa by 2031 for construction materials. It concluded that OW and Peruvian Wharf, PW, were best placed to meet that demand, and that policy was to preserve more capacity than required since once wharfage was lost, it was unlikely to be regained. The Inspector went through the main points raised by Mr Village as to why the demand was over-estimated for the north-east. I do not need to spell them out. He largely accepted the explanations provided by the PLA. There is nothing unreasonable about any of those conclusions. He was entitled to reject the first point on capacity, namely the inclusion in the demand figures of the usage of non-safeguarded wharves, but the exclusion of their related capacity. In effect, the demand would exist, but the non-safeguarded wharves might not. He did however accept, [12.98] that the exclusion of PW from the capacity figures was “harder to explain.” Whether taking the demand figure put forward by the operators of 0.5m Tpa, which he saw as the more realistic, or the permitted capacity figure of 0.75m Tpa, he accepted that the forecast capacity in the NE sub-region was not accurate. Thus far, the report cannot be criticised on this point.

The Inspector then commented: “However, that is the nature of forecasts and is still consistent with safeguarding more wharves than are absolutely necessary.” I do not follow that; the indefensible omission of the permitted and substantial capacity at PW has nothing whatever to do with the nature of forecasts, but this error is not of significance. The Inspector is not specific by quite how much the capacity shortfall would be reduced, but it is difficult to see how the residual shortfall could exceed 0.3m Tpa on his finding about the omission of PW finding alone, and he clearly had reservations about the justification for the quantity of demand allocated from the SE sub-region to the NE sub-region, and contributing to the shortfall there, in the light of the difficulties of crossing the Thames with short-lived concrete; [12.95]. All of this was reported to the Secretary of State.

But what mattered, which I deal with first, is not so much his acceptance that a capacity shortfall, much reduced from 0.8m Tpa, still required safeguarding more wharves than were absolutely necessary and, later, OW in particular. What mattered in reality for the whole of the policy related ground, as I then come to, is that the Inspector did not regard the shortfall, whatever number was put on it, as an important issue. This features in a number of places in his report. A forensic triumph, mauling the SWR, was not bound to win the day.

In [12.102], although under the head of bias, the Inspector notes that the GLA contended for a precautionary approach to safeguarding, and that the SWR 2013, acknowledged that there would be over-capacity. Indeed, earlier on the Inspector had explained why that was a justified approach, since once lost, it was unlikely that a wharf would be reinstated. In [12.103], the Inspector said that even if the SWR were ignored completely, OW would still be a viable and safeguarded wharf “whose reactivation could make a substantial contribution to the LP aim of shifting freight onto the BRN. This of itself would provide a strong justification in favour of confirming the CPO.”

In his summary on the SWR, the Inspector said:

“12.104

The Objectors argued that proof of a quantitative shortfall is necessary to justify the CPO. That is not the test. Two other important factors come into play in assessing whether or not there is a compelling case: first, that the CPO is supported by policy, which it is; second that it would achieve a considerable degree of modal shift within London, which it would. [8.8]

12.105

Safeguarding assumes that more wharves will be reserved than are needed at any one time in order for the policy to have any chance of working. The SWR 2013 acknowledges the limitations of forecasting, explains the need for a precautionary approach and notes that some vacant capacity will remain. However, while it is surely appropriate to release wharves from safeguarding if it is unlikely that they will ever be needed, that is not the same as saying that there is no case for a CPO to reactivate a wharf where there is a reasonable probability it would be required and a reasonable prospect that the scheme would proceed. [5.26]”

He then pointed out that without CPOs, the wharves better located to serve the centre of London would be used for housing, and if too many had been safeguarded in the past, that did not mean that there was no need to reactivate any of them. The SWR assumed that the LP policy towards modal shift on to the BRN was working. Forecasts should assume that the policy would be made effective through CPOs.

In his general conclusions on alternatives, the Inspector said that the concern in the SWR was not to have too much over-supply; need was based on precautionary forecasts; it did not require a proven forecast shortfall, [12.113]: “All that is required is a need as found at PW and a degree of justification to be determined on its own merits.”

What the Inspector had to say about specific alternative sites is also germane. He explained that the focus had to be on north bank sites to the east of the City of London. He rejected Grafton’s approach as circular: each wharf could point to another wharf as available for compulsory purchase, and others would be able to point to OW as better placed. He rejected Grafton’s methodology for examining alternative sites, and said that “together with PW, the PLA produced reasonable evidence to show that OW is one of the best placed [wharves] and that [Grafton’s] evidence fails to prove otherwise. There are therefore sound reasons why [AI/LC] did not look beyond OW.” [12.114] is important:

“12.114

It is self-evident that there is currently excess capacity as the SWR 2013 proposes to release several wharves. Even if the Objectors’ figures were accepted in their entirety, it is unlikely that OW would be released so there would be no change to its safeguarded status as it might still be seen to be needed for port purposes and to achieve modal shift onto the BRN.”

I have also already noted the passage in [12.2] where the Inspector commented that there was “no hint” that OW would be released from safeguarding, regardless of the SWR.

More importantly, Mr Harris QC for the PLA rightly pointed out that the Inspector’s “need” case had not been based on the reduced shortfall in capacity, but on what was called “real world” demand. That meant the demand for OW by AI/LC. And the significance of this was not just that the wharf would have a user; it was the significance of that particular user’s operation for modal shift. Modal shift, the Inspector said, [12.89], was at the heart of the relevant policies and even if the SWR were flawed, it would not mean that policy 7.26 should be given no weight. The purpose of policy 7.26 was not a simple regeneration policy for unused wharves to give them some active use; it was to safeguard wharves so that they could be brought into use as wharves, because the transport of goods by water, on the BRN, and the related modal shift from road transport, would bring public benefits.

The Inspector dealt with this in [12.80] and [12.82]. He first summarised the PLA’s and Grafton’s claims, and expressed doubts about AI/LC’s threatened fall back of building a concrete batching plant in Silvertown. But in [12.80], having noted the uncertainties associated with predicting CO2 savings, he said:

“Nonetheless, the advantages of modal shift go beyond carbon reduction into reducing congestion within London and, by directing freight away from the roads and onto the Thames, promoting more sustainable forms of transport, at least within the capital. [6.23] [8.46]”

[6.23] is a reference back to the case for the PLA/AI/LC made at the Inquiry. The Inspector’s comment shows that he was accepting its point in general, if not in all its detail. This case was:

“6.22

...LC has about 25% of the London cement market. All its concrete deliveries are by HGV from Chatham. With OW, all cement would go by barge for onward distribution saving around 1/2m road miles compared with Chatham. This would be a significant benefit.

6.23

Without OW, aggregates for the LLV OA would most likely come by road from Bardon or further afield. OW would allow aggregates to come by sea from Glensanda in Scotland via the Isle of Grain. This could save nearly 1.2m road miles for aggregates use at OW and a further 1.6m miles from open market aggregates sales. While the detailed figures can be challenged, and would vary in the future, the Objectors’ analysis does not alter the principle of significant savings.”

These figures were not part of the demand forecast in the SWR. In [12.82], the Inspector said that it was clear that the use of OW for concrete would bring a considerable volume of cement and aggregates close to the heart of London, using the BRN, in accordance with policy 7.26. The benefits of modal shift warranted considerable weight in favour of confirming the CPO. It was also clear from Mr Harris’ opening and closing submissions at the Inquiry that he put the PLA/AI/CL case on a much broader basis than simply meeting a capacity shortfall as identified in the SWR.

The Inspector explained why the reduced shortfall in capacity left what he saw as a still compelling case for the CPO. This included the fact that, for all its flaws in forecasts, there was no suggestion in the SWR that the surplus capacity would be reduced by ceasing the safeguarding of OW; OW was one of the two wharves best placed in the NE London sub-region to contribute to the shift to water from road of aggregates and cement traffic. That is what underlay the Inspector’s approach to the significance of the safeguarding of OW. It was not so much that he did not consider the weight to be given to the SWR; he did consider its flaws and their effect on his judgment as to the practical significance of the application of the safeguarding LP policy 7.26 to OW. But, because of the location and usability of OW for handling water borne cement and aggregates, he did not consider such flaws as he accepted, to be significant in that judgment, whatever state they left the SWR forecasts in.

Of course, in all of this, the Inspector and Secretary of State were well aware of the nature of the area surrounding OW which would be affected by reactivation; indeed that was the basis of the dismissal of the planning appeal. But that did not lead them to doubt the continued justification for the safeguarding of OW any more than did the problems with the forecasts.

Although Grafton do not accept the outcome of that analysis, it cannot fairly be said that the usefulness of OW as an active wharf has not been independently assessed. It would be quite wrong to characterise the Inspector as simply accepting the fact that OW was safeguarded as the be all and end all of the required analysis.

The Inspector made a number of comments to the effect that the SWR was beyond his remit, and he assumed that the final draft would be accepted. Any other outcome would radically alter the basis for his conclusions. But he is essentially saying that so far as the safeguarding of OW is concerned, which is what mattered for the purpose of the application of LP policy 7.26, it was its location, and ability to be brought into practical use for handling waterborne aggregates and cement which meant that it should continue to be safeguarded, with all the implications which that had for alternative uses on it.

In [12.64], the Inspector commented that the safeguarding of OW should be given full force until released. It was not for him to rule on whether the SWR 2013 should become SPG to the LP. Grafton had submitted their evidence on the SWR to the SSCLG. If OW were released contrary to the recommendation in the SWR final draft, “then the recommendations in this report should be viewed in a very different light.” At [12.91], he added that the report proceeded on the basis that the SWR “will not alter OW’s safeguarded status.” At [12.100], he commented that his conclusions assumed that the SWR 2013 would be accepted, since it was beyond his remit to assume otherwise. “If the SWR is not published in its final form as it relates to OW then that could radically alter the interpretation of these conclusions.” I think it clear enough that that is a reference to an SWR with no safeguarding for OW. The Inspector here is dealing with the formal position in relation to the SWR. In other paragraphs, he dealt with the impact of Grafton’s criticisms of the SWR for the weight to be given to safeguarding OW. He did not regard them as weighty in that context.

There was nothing unfair in the light of that understanding of the Inspector’s report in the way the relationship between the SWR and the decision on the CPO was handled. What in substance Grafton asked was that the decision on the CPO should be taken in the light of the decision on the SWR, which would grapple with the criticisms made of it by Grafton, since if OW ceased to be safeguarded, that would undermine the case for the CPO very significantly. However, the Inspector considered the criticisms, and did not regard them as significant in relation to the continued need to safeguard OW, and to the compelling case for confirmation of the CPO. Once that is understood, Grafton’s reasons for a decision on the SWR before the confirmation of the CPO have in substance been met. Grafton’s criticisms simply lacked the potency which it submitted they should have. There was therefore no reason for the decision on the CPO to await the decision on the SWR.

The Secretary of State for Transport accepted the Inspector’s conclusions. His comment in [13] of the CPO Decision Letter that the case had to be considered on the basis of the current designation was not made in ignorance of the consideration given to the case for the continued safeguarding of OW identified by the Inspector. He recognised that the position might be different if the SWR had proposed removing the safeguarding designation from OW, or if it had not been designated before.

The force of Mr Village’s argument would have been different as well if the Inspector had cast doubt on the way in which the SWR had actually approached the designation of OW, and had been critical of its continued designation or of the need for its continued designation as but one wharf among many contributing to an over-capacity which the SWR aimed to reduce, as in reality, Grafton suggested to him. But he did not favour Grafton’s side of the argument; instead he was plainly of the view that the case for OW’s continued designation, whatever else might have been wrong with the SWR’s forecasts and approach to surplus capacity, was clear.

It is therefore also irrelevant that the SSCLG, in the decision letter on the planning appeal, attached little weight to the SWR as it was in draft; [10], and made no comment on the accepted flaws in the SWIR, focussing instead on the fact that it was a safeguarded wharf. Had the circumstances referred to in [13] of the CPO decision letter occurred, or had the Inspector doubted the continued justification for safeguarding OW, I am by no means sure that the issue could have been left there by the SSCLG either, were he allowing the appeal. But that is not the basis for the Inspector’s reasoning or the Secretaries of State’s conclusions.

I do not consider that Mr Village has made out his claim that the Inspector or Secretary of State for Transport failed to consider either the intrinsic problems identified with the SWR or the weight which could be given to it as a result in the application of policy 7.26 or to the prospect of continued safeguarding for OW. They explained the position adequately.

Mr Village’s next submission on the weight to be given to the SWR, and the way in which the Inspector and Secretary of State grappled with Grafton’s case, concerns the alleged tainting of the SWR by bias and conflict of interest. A material consideration had been ignored which the Inspector and Secretary of State for Transport ought to have taken into account in deciding how much weight to give to the SWR.

The Inspector recorded Grafton’s argument that there was a conflict of interest among staff in URS Scott Wilson, consulting engineers, who were involved in both the preparation of the SWR for the GLA, and in the case for the PLA at the Inquiry; the SWR, it was said, had really been prepared to support the PLA case. The allegations were also forwarded to the SSCLG for his consideration when deciding what to do about the SWR.

The Inspector accepted that suspicions of a conflict arose, [12.101], and that there were unexplained matters in the SWR which depended on planning judgments, “which makes this conflict doubly uncomfortable”. But as there was no evidence of bad faith, or evidence as to the motives for the inconsistencies which were said to be the upshot of the conflicted interests, it was, [12.101], “still more than likely that the GLA was able to reach its own judgments on the recommendations in the SWR 2013 as it has stated. Consequently, the allegations were not substantiated at the inquiry and so should be given no weight in the decision on the CPO”. The GLA “robustly” defended the SWR 2013 as being its own judgment, although the PLA had implicitly acknowledged many of the more detailed criticisms made by Grafton; [12.102]. The GLA, which was responsible for producing the SWR and submitting it to the SSCLG, had put in written submissions to the Inquiry on this point. His report only dealt therefore with the likelihood that the SWR’s conclusions were sound and its effect on whether there was a compelling case for the CPO. He also thought that a bias in the report would have been “a pretty pointless exercise” as the inconsistencies had been exposed. Besides, were the SWR to be ignored, the case would simply be that OW was a safeguarded wharf, viable for use as a wharf, the reactivation of which would contribute to the various policy objectives, of itself therefore still providing a strong justification for the CPO. The CPO decision letter simply said that bias was a matter for the SSCLG when considering his decision on the SWR and the sites to be safeguarded. The SSCLG, in the planning appeal decision letter, makes no comment beyond that which I have already noted in relation to the SWR above.

Again, the problem in the way of Mr Village’s submission is that the Inspector did consider the allegations that the SWR was so tainted by an active conflict of interest as to be valueless, or less weighty than it might have been. He did not accept that they were made out; he did not regard them as affecting the weight to be given to the SWR, as he accepted that the judgment of the GLA was not affected by the errors said to illustrate the effect of the conflict of interest; and he considered that the case would be still strong even with no SWR at all. Granted, the Secretaries of State did not rule on this, but the Secretary of State for Transport did accept the Inspector’s conclusions which did not see this as a point of significance; and the SSCLG regarded the SWR as of little weight. I cannot see that the impact on the SWR of the conflict of interest was ignored and plainly its effect on the weight to be given was considered by the Inspector and not rejected by the Secretary of State. He provided an adequately reasoned conclusion.

It is in the context of my conclusions on the arguments as to the weight to be given to the SWR that I consider the claim that the Inspector and Secretary of State wrongly elevated the fact of safeguarding into a justification itself for the CPO. The precise nature of this error of law was not identified. Certain it is that the fact of safeguarding was given considerable weight in the application of policy. But that was not unlawful. It is in fact safeguarded and policy 7.26 applies to safeguarded wharves. They did in fact consider the prospect that the safeguarding might change; the Inspector did not expect it, having considered the forecasts, and the locational benefits and prospects of use for OW. He and the Secretary of State for Transport took account of the absence of recommended change in the SWR. The SSCLG took a different approach as he gave the SWR little weight anyway. And so he gave weight to the underlying SWIR, for all its flaws. But that decision is not challenged, as he dismissed the appeal. I do not consider that it can properly be said that the safeguarding in the policy was the justification of itself for the CPO, though it contributed strongly to it.

The Inspector had also said in [12.67] that “the unusual safeguarding Direction is likely to mean a stark choice between reactivation and continued blight for OW. [Grafton] confirmed that it intends to land bank the site until safeguarding is removed. While all relevant matters should be considered, these facts alone provide a strong case in favour of acquisition.” The decision letter, [10], noted the policy framework provided strong support for reactivation of the wharf, and then adopted the Inspector’s point about Grafton’s intentions, noting that the safeguarding, and viability of wharf use, meant that no other use would be permitted.

(d) Weight and Strategic Environmental Assessment of the SWR

Mr Village submitted that the SWR ought to have been subject to Strategic Environmental Assessment, SEA, the omission of which meant that it could not lawfully be relied on as it was, or meanwhile should be given less weight than it was. His submission did no more than refer me to the Annex to his submissions to the Inspector where he had made this point. Neither Inspector, who left it to the SSCLG, nor the SSCLG deal with this argument. Neither Mr Banner for the Secretary of State for Transport nor Mr Harris dealt with it at any length. I do not propose to come to any conclusion on whether the SWR or the SWR in draft required an SEA. I shall assume that it did, and that in its absence either the draft or the approved version would be unlawful as a policy or plan or framework for decisions. That could affect its current policy status as SPG, but the 2005 SWIR and not the SWR was the prevailing SPG at the time of the Inquiry.

I do not see how that could have any bearing on the outcome of the Inquiry. If the SWR were ignored entirely, the SWIR would be in place, for all its flaws, as the SPG which justified the safeguarding. As I have already discussed, the Inspector was clear that without the SWR, his conclusions would have been the same: OW would still have been safeguarded. The safeguarding of OW, regardless of the safeguarding of other wharves, was not in reality dependent on some refined or even crude calculations of capacity and demand, but on its location, and potential for use as an active wharf, which made it one of the best on the north bank of the Thames, east of the City. Additionally, the analysis in the SWR of demand and capacity, and not all Mr Village’s criticisms by any means were accepted, and its description of other wharves would still have been relevant to the Inspector’s judgment on those points. Mr Village would still have had to argue that the weight to be attached to the fact of safeguarding was limited or nil because the SWR had got its facts and appraisal wrong; but however wrong they were in many respects, they were not wrong, concluded the Inspector, and the Secretary of State for Transport agreed, on the locational advantages and potential for active wharf use of OW. And that was what mattered. All that would have altered is that the SWR could not have had any policy status, but the decision was not based on the policy status of the SWR; it was based on the current status of the safeguarding which seemed unlikely to change in view of the merits of the case for safeguarding, and in view of the content of the SWR on demand and capacity, and the attractions of OW for wharf use. It is difficult to see why those points should be given less weight if the SWR were presented not as SPG but as a report on demand, capacity and wharf locations.

Mr Village submitted that there was an important distinction to be drawn, which the Inspector had failed to draw, between whether a wharf was “viable” for the purposes of the safeguarding policy 7.26, and whether that showed that there was a compelling need for its compulsory acquisition. I have already set out the relevant passages from LP policy 7.26 and the supporting text in [7.77].

The 2006 Peruvian Wharf planning appeal concerned a proposal to use the Wharf for a variety of uses including residential and offices, but also some wharfage use. The appeal was dismissed for reasons which included the loss of the safeguarded wharf. The Inspector in that appeal had to consider the meaning of “viable” in the same policy context. He said:

“12.53

To demonstrate lack of viability under this heading, it would be necessary to show either that the prospects of future trading are so poor that the wharf could not possibly be needed for cargo-handling, or, that there is over-provision in existing wharves such that the use of Peruvian Wharf for cargo-handling would be redundant. Neither of these positions exist in this case. ”

The Inspector at the OW Inquiry dealt with “need” in terms of policy 7.26 at [12.69] in his discussion of the planning framework. The issue he was facing was whether the safeguarding alone showed that the wharf was needed, and the effect on that of the SWR and its weaknesses. He said that the policy framework for safeguarded wharves provided strong support for the reactivation of the wharf; [12.66], and that the planning framework supported acquisition. The wharf would be blighted as a result of that planning framework, unless put to wharf use; that fact provided a strong case for acquisition; [12.67].

He then said this in [12.69]:

“12.69

It is fair to argue that being consistent with policy would not be enough where a wharf is not needed. However, providing a wharf is viable by the definition in LP paragraph 7.77, as interpreted by the findings at PW, for the policy to work, it should be assumed that a safeguarded wharf is needed unless the prospects of future trading are so poor that it could not possibly be needed for cargo handling, or that there is over provision in existing wharves such that its use for cargo handling would be redundant. Policy does not require that there is an urgent demand or a current capacity deficit. While policy support alone may not amount to a justification for a CPO, providing a wharf is needed by this definition, it does add considerable weight in its favour.”

He continued in [12.88], dealing with alternative means of meeting the CPO purpose, that viability, as defined in the PW decision, was the basis of deciding whether the wharf “could not be ‘needed’. No such evidence exists.” This did not mean that an irrefutable need for wharfage had to be shown; need was based on precautionary forecasts. “All that is required is a need as found at PW and a degree of justification to be determined on its own merits.” [12.113]. And at [12.120], under the heading of “Compelling case”, he said, reflecting PW:

“It cannot be in the public interest for this important site to remain vacant when there is a better than reasonable prospect of a scheme being developed which would meet the purposes of the 1968 Act and would be supported by all up-to-date documents within the Development Plan. [s4][8.6-8.8]

Providing OW is safeguarded and viable, with a reasonable prospect of a suitable scheme being delivered which it is, this provides strong support for finding a compelling case in the public interest.

Nevertheless, none of the flaws in the forecasts, individually or taken together, show that there would be poor prospects for future trading, or that its use would be redundant, and so should not be allowed to undermine an otherwise compelling case. While it would be wrong to confirm a CPO where there was little or no likelihood that the wharf would be needed, to exclude the possibility of a CPO where there is clear viability and demand would be to invalidate the policy.”

I can see no error of law in the various passages which Mr Village relied on. The Inspector had to consider how policy 7.26 applied to the safeguarded wharf. “Viability” in the planning sense was relevant, since if the wharf were not viable in that sense, the application of the safeguarding policy to it would have been difficult to sustain. Likewise, so long as the policy were applicable to OW, planning permission would be refused, as at PW, for non-wharf uses. OW would be blighted. In terms of policy 7.26, a safeguarded wharf is needed if it is viable for wharf use. So the Inspector had to ask himself where the public interest and the compelling case lay, if the policy would prevent the use of the site for the purposes for which Grafton wished to use it. It does not reverse the onus of proof to say that, in policy terms, the site is needed, and to look at what that means for the use of the site. The Inspector did not move simply from the fact of safeguarding to the compelling need case for acquisition. Quite apart from the consideration he gave to the frailties in the capacity figures, he considered what was called the “real world” demand, the relative advantages of the location of OW compared to other wharves for serving the NE London sub-region, and the role to be played in the reactivation of OW by AI/LC.

This ground is closely related to the last. Mr Village contended that the Inspector and Secretary of State for Transport had misconstrued the support which policy gave for the compulsory acquisition of wharves. He submitted that the text of policy 7.26 did not itself support any action other than safeguarding. As set out above, the supporting text does refer to compulsory acquisition, but that is not policy, although part of the Development Plan. I have set out above the passages from [12.66] and [12.67] to which Mr Village referred. The decision letter approved what the Inspector said in those paragraphs in [9] and [10].

I see no misreading of the policy framework. Neither confused policy with supporting text. What they both do is to point out the consequences of the safeguarding policy for a safeguarded wharf, which can be put to wharf use. That prevents its use for other purposes. And if, as here, the site is unused, and the landowners do not intend to put it to the only use for which permission would be granted, that alone to them provided a strong case for acquisition. The steps leading up to that conclusion are inevitable, and the conclusion drawn from those steps is one open to them without any misconstruction of policy.

Mr Village submitted that concrete batching, that is the production of concrete from the aggregates and cement which would be landed at OW, and its dispatch as a product from the site, would involve an industrial process, and not a “water-borne freight handling” use. It was therefore contrary to the very policy, 7.26, which was being used against Grafton- which also wanted to carry out uses which fell outside that policy. The policy did not support the acquisition for concrete batching, but told against it. This was a point which Tower Hamlets LBC had also taken at the Inquiry, in view of the scale of the concrete batching plant.

The Inspector dealt with this in [12.24]-[12.26]. At [12.24], the Inspector said:

“12.24

The Council’s contention overlooks two important points. First, concrete batching is not a complicated industrial process. Apart from water, and relatively tiny quantities of additives, concrete is a combination of cement and aggregates both of which would be brought to OW as water-borne freight. Batching involves little more than the handling these very bulky, low-value materials, albeit rather precisely for some applications. Handling cement and aggregates is therefore tantamount to handling concrete, and mixing it is very often an integral part of its handling, hence there are concrete batching plants on existing wharves and one is proposed for PW. While it might be theoretically possible to have a batching plant elsewhere, to expect that these materials could be brought into London by river and then moved to a plant elsewhere would be uneconomic and wouldn’t happen. Moreover, to require the batching plant to be away from the Thames would defeat the aim of the policy to shift transport onto the River. [5.2]”

He continued [12.25], saying that policy 7.26 did support proposals for uses which would increase the use of safeguarded wharves for water borne freight. This did not mean that any industrial use involving waterborne freight would comply with that policy, but the scheme would encourage the use of the wharf for water borne aggregates and cement; it was the logical consequence of bringing waterborne aggregates and cement by water into London.

It is significant in that context that, after I raised the issue with him, Mr Village did not contend, indeed disavowed any contention, that concrete batching of waterborne aggregates and cement fell outside the scope of the Order or the compulsory acquisition powers in the 1986 Act.

It seems to me that the Inspector was entitled to take the view that concrete batching would encourage the use of the wharf for water-borne freight handling of its component parts. There would also be a saving in road transport in being able to batch on the wharf as opposed to transferring the raw materials to another batching plant, and thence to the construction sites. The industrial process, however much the ingredients might need to be carefully weighed, and the additives measured, was not a complex one. And its relationship to the water-borne aggregates and cement was obviously close. He was right to take a purposive view of the policy support in 7.26B (b) or (d), even if not in 7.26B (a), for proposals which would encourage the carriage by water of aggregates. The SSCLG accepted those views. I reject this ground; it shows no error of law.

ODPM Circular 06/2004 “Compulsory Purchase and The Crichel Down Rules” sets out procedures which as a matter of policy confirming Ministers expect acquiring authorities to follow. Paragraph 35 states that landowners served with the notice of the making of the CPO should also be served with the authority’s Statement of Reasons for making the order. This statement “should be as comprehensive as possible”. It should be possible for the acquiring authority to use it as the basis for its statutory Statement of Case, required now under the Compulsory Purchase (Inquiries Procedure) Rules 2007 SI No.3167, the Rules.

Mr Village put a great deal of weight on the Statement of Reasons at the Inquiry and before me. It is dated 23 May 2012, a few days before the CPO was made. It says:

“1.3.

The PLA considers that Orchard Wharf is required for the purpose of its undertaking, such that the Order can be made under s.11(2) of the Port of London Act 1968, to enable a development that will reactivate a Safeguarded Wharf in accordance with national, regional and local planning policy. The PLA also considers that the Secretary of State is likely to conclude (for the same reason) that there is a compelling case in the public interest for the compulsory acquisition of the Order Land, such that the Order would be confirmed.”

At [3.7], the PLA states that it has considered carefully whether the land is “required” under s11 of the 1968 Act, and whether the Secretary of State would conclude that there was a compelling case in the public interest for the CPO. “It has concluded that the exercise of [CPO powers] would be justified [and supported by the Secretary of State] for the following reasons…:

a)

There is clear policy support at national, regional and local level to facilitate use of the Thames for the carriage of freight and, in particular, to bring back into use inactive, safeguarded sites (including the use of compulsory purchase powers where necessary);

b)

There is a need to provide further wharf capacity within the Port of London for importation of aggregates into London;

c)

The PLA has concluded that the current owners of Orchard Wharf do not have any wish to reactivate the wharf to introduce cargo-related activities; and

d)

There is a prospect of a genuine scheme, developed by Aggregate Industries and London Concrete, in conjunction with the PLA, for the reactivation of the wharf.”

Each of those points is elaborated in subsequent paragraphs, but it was (b) which was crucial for Mr Village’s submission. The figures for demand for aggregate handling wharves and capacity drew upon the SWIR 2005, and a 2011 consultation draft Review of it, SWR 2011. This was the then current precursor to what became the SWR 2013, available at the Inquiry. The SWR 2011 said that despite the over-provision of wharf capacity for general cargo, there was likely to be a shortfall in wharf capacity in the period 2011 – 2031, on medium growth forecasts for construction materials. In the north-east sub-region this was estimated to be approximately 0.9 million tonnes of aggregates a year. After setting this out, paragraph 5.10 of the Statement of Reasons said:

“5.10.

The SWR concludes (at para 7.2.7) that the reactivation of Orchard Wharf (and Peruvian Wharf) should be facilitated to address the identified capacity deficit in respect of construction material which is predicated to arise on a “medium growth forecast”. Orchard Wharf is considered to be (Table 7.1)-

“Viable, well-located to serve central and inner London locations and can satisfy an element of the forecast shortfall of aggregate supply in the [North East] sub-region.”

Section 7 dealt with the “Substantive Proposal for the Reactivation of Orchard Wharf”. It referred to AI/LC’s planning application, in fact made in December 2011. It was in outline for the deep water jetty and ship to shore conveyer for aggregates, and a sealed pipe for the transfer of cement and in full for the erection of a ready-mix concrete batching plant, cement storage terminal, aggregate storage bays, associated structures and facilities, walkways and landscaping. The Statement of Reasons said that it would enable the importation of approximately 0.35m tonnes pa of aggregate and up to 0.26 m tpa of cement, which would then be used by the onsite ready-mix concrete plant. The advantages in road transport savings and employment were adumbrated. AI/LC were “regarded as fully supportive of the scheme, financially robust and capable of implementing the proposals on which their planning application is based within a reasonable time frame.” The final layout was seen as minimising adverse impacts on amenity. The conclusion referred to the need to provide further wharf capacity in the PLA area for the import of aggregates.

The PLA’s Outline Statement of January 2013 required under the 2007 Rules, rule 5, was in very much the same vein, both as to the expected throughput of aggregates and cement, and as to the justification in summary for the CPO. Paragraph 1.3 of the Statement of Reasons was repeated. But there is a further theme in the elaboration of the justification in section 5, the capacity shortfall, and that is that OW has “particular attributes which make it uniquely suitable for reactivation by AI/LC.” It is the only unused wharf in the North-East Sub-Region of the London area suitable for AI/LC’s scheme. Section 7, the substantive proposal for the reactivation of OW, develops that theme somewhat beyond the position in section 7 of the non-statutory Statement of Reasons. This relates to the particular benefits of AI/LC’s scheme: there would be a saving of an estimated 3.5 million HGV miles p.a. because, instead of cement coming from their premises in Chatham by road to North –East London construction sites, it would come by barge to OW, and only thence by road; aggregate for sites east of Bow come at present by road from Leicestershire or Somerset; the wharf would mean that water-borne sources could be used instead; concrete would be supplied from OW, closer to construction sites than present suppliers. The Rule 7 Statement of Case is in the same vein as the outline Statement of Case, and includes the wording of paragraph 1.3 of the Statement of Reasons.

Mr Village’s submissions were: (1) The Secretary of State only had power to confirm, or could only fairly confirm, the CPO if the justification for it put forward in the Statement of Reasons were made out. (2) A key component of the justification, namely the asserted need for more wharf capacity, derived from the Statement of Reasons, as accepted by the PLA witness at the Inquiry, had not been made out, and so the CPO should not have been confirmed. Alternatively, (3) the Inspector and Secretary of State for Transport had ignored the fact that the asserted need had not been made out, and so ignored a material consideration. Or they had reached no conclusion on one of the principal issues, which was whether there was any need for more wharf capacity, or had failed to give legally adequate reasons for any conclusions which they did reach on that topic.

I do not accept these submissions. They start from an erroneous legal premise as to the purpose and effect of the non-statutory Statement of Reasons. This, be it emphasised, is not a challenge to the vires of the Order. It is not said that, although the generality of its wording falls within the 1986 Act, some or all of the activities contemplated for the site if planning permission is granted, fall outside the scope of the Act or Order. This is about the significance of the justification put forward for the Order, and not merely in the general sense of the case put forward in support of the Order by the PLA in evidence and submission at the Inquiry, but specifically concerns the justification as formulated in the Statement of Reasons.

Although the decision in Proctor and Gamble Ltd v Secretary of State for the Environment (1992) 63 P&CR 317 (CA) deals with a related but different issue, it is unhelpful to Mr Village, as it is a stronger case than his. The CPO in that case was an Urban Development Corporation regeneration CPO, made for “the purpose of regenerating part” of the UDC area. The scheme to achieve regeneration included the demolition of Proctor and Gamble’s offices and the redevelopment of the site with new offices, and a hotel. That is what the non-statutory Statement of Reasons said and neither it nor the later statutory statement said anything about a road proposal. At the Inquiry, and with the objector properly notified of the change of case, the UDC contended that the land was now required, not for offices and hotel, but for a road widening scheme reasonably necessary to support the regeneration of the area. The Order was confirmed on that basis.

Proctor and Gamble’s contention, in its statutory challenge to the confirmation of the CPO, was that the CPO had been made for one purpose but had been confirmed for a different or additional purpose, and that was unlawful. Mann LJ accepted, p324, and Mustill LJ and Sir Christopher Slade agreed, that it would be unlawful for a CPO to be confirmed on that basis, even though, as I read later passages, the different or additional purpose was within the purposes for which the power to acquire land compulsorily was granted. But what had happened in that case did not involve that error. Courts are prepared to look behind the expressed purpose of the making and confirming of the CPO in order to identify on the evidence the actual purpose of the CPO, “axiomatically [for this argument to be arise at all] within the purpose for which the power to make and confirm is granted”; p325. The question was whether the purpose of the CPO was the scheme for which planning permission had been granted, that is the offices and hotel scheme, or whether it was the wider purpose of the regeneration of the part of the UDC area. The Court rejected the former, and held that it was the latter. It did so on the basis of what the CPO and statutory Statement of Reasons said. “Undoubtedly the [UDC] had the [office and hotel ] scheme in mind when they resolved to make the order, but nowhere do they confine their purpose to the implementation of that scheme.” Mann LJ noted the reference in the statutory Statement of Reasons to the implementation of a proposal “such as that for which planning permission has already been granted”, as he would have expected in a regeneration CPO, since the means whereby that objective would be achieved would change over time, as had happened. The purpose for which the CPO was made was “the regeneration of part of the” UDC area. “That was the expressed purpose of the maker”, to which Mann LJ attached decisive importance; confirmation was the ratification of what the acquiring authority had resolved upon. “The means of achieving the expressed purpose had plainly changed between making and confirmation from office development to a road improvement but in my judgment the expressed and actual purpose remained constant.” [p326].

It is not possible to say here that the purpose of the CPO changed at all. The purpose of the CPO, expressed in the CPO as made, has not changed. The reactivation of the wharf, which is the purpose of the CPO, would be the same whether or not there was a specific capacity shortfall. The purpose of the CPO in both the non-statutory and later Statements of Case has not changed. The wording which I have set out above from [1.3] of the Statement of Reasons, repeated in the Statements of Case, is important. It shows what the purpose of the CPO was, and that it remained unchanged.

That paragraph also draws the distinction between the purpose of the making of the CPO and the justification for acquiring the land to meet that purpose. That distinction is maintained in the structure and content of the Statements. The passage in the Statement of Reasons upon which Mr Village relied goes to the justification for and not to the purpose of the CPO. That is the crucial distinction drawn in Proctor and Gamble; it is the justification which may change, without error of law, provided that the case on the justification can fairly be met in the Inquiry process. Proctor and Gamble shows the flaw in Mr Village’s submissions which recognised no clear or consistent distinction between the purpose of making the CPO, and the justification for acquiring the Order land to meet that purpose. I note that it was not said, nor could it have been said, that the purpose of the CPO was to provide for the specific scheme for which AI/CL sought planning permission. That was part of its justification.

As Mr Banner and Mr Harris pointed out, if Mr Village were right, the acquiring authority would have to reconsider the purpose of making the CPO whenever part of the justification were shown to be less sound than it had thought, even if the case that remained was still sufficiently compelling for the confirmation of the CPO.

It is impossible for Mr Village to contend that Grafton was unable fairly to deal with these changes in emphasis to the justification, such as they were, in the light of what its forensic exertions achieved. Mr Village put great emphasis on an answer he obtained from the PLA planning witness, Mr Trimmer in cross-examination. No doubt anticipating that the evidence of a capacity shortfall, which featured in paragraph 3.7(b) of the Statement of Reasons, might be in a rather distressed state after he had finished with it, he asked Mr Trimmer, about this paragraph. Mr Trimmer answered that although paragraphs 3.7 (a), (c) and (d) were prerequisites of a successful CPO, they would not by themselves justify its confirmation. The shortfall in (b) had to be shown. Mr Village exploited this agreement in his closing submissions. (There appeared to be some dispute about whether Mr Trimmer had actually agreed with Mr Village. But the position is clear. There was no response to the claim in Mr Harris’ written submissions at the Inquiry. Mr Sharp, solicitor for Grafton, gave evidence in his witness statement, that that is what had been said. Mr Trimmer produced a witness statement covering other aspects of the evidence but not taking issue with this point. Ms Owen, a planning officer with the PLA, makes a number of comments on what else was said by Mr Trimmer, its context, and Mr Harris’s interventions, without actually denying that Mr Trimmer said what was attributed to him in Mr Village’s submissions. The Inspector in [8.8] records Mr Village’s contention and his footnote says “Acknowledged by Trimmer in XX”. I do not think that is merely noted as Mr Village’s assertion as to what Mr Trimmer said; rather it is the Inspector accepting that Mr Village is right in what he said Mr Trimmer had said. I would have expected the Inspector to say if that were not so, when dealing with the point.)

Mr Village thus made plain at the Inquiry how he sought to exploit Mr Trimmer’s answer. Mr Harris’ response was equally clear. The Outline Statement of Case had already shown that the “need” justification was broader than simply this capacity shortfall point. The PLA did not confine its case to the way in which Mr Trimmer answered that question, nor was it bound in consequence of his answer to adjust its case to match the answer. The “need” justification included the need to bring OW into active use because of its location, the likely prospect of its use by AI/LC to the public benefit from the way they would be able to operate the site, “the real world” need, and the absence of prospect of its active wharfage use, if owned by Grafton.

It is also clear that the Inspector did not ignore Mr Trimmer’s answer; the footnote shows that clearly. He understood the point being made by Mr Village. He did not agree with it. [12. 104], set out above, which refers in the endnote back to [8.8], makes this clear. As is clear from the need points discussed in relation to SWR, he did not see this quantitative shortfall as important, let alone as critical. He did not ignore the point. His reasons for his views are amply set out. Once it is recognised that the justification may vary at the Inquiry, with a different emphasis, with points abandoned, or added, without affecting the purpose for which the Order is made, provided that the procedure is fair, as it was, and the changing effect on the justification is considered by the Inspector, as it was, there is nothing in this point.

Mr Village’s point that it was not fair for a landowner to prepare to meet the case for a CPO on one basis and then to have to defend against it on another basis either goes to the lawfulness of a change in justification, which I have ruled it does not, or to the fairness of the procedure for dealing with the new evidence or argument, which is not arguable on this point here, or to the way in which the effect of that particular change was considered, here considered properly. Otherwise it is not a submission of law but the entirely human reaction to a score line which one side thinks does not reflect the run of play. There is no purpose, as Mr Banner and Mr Harris pointed out, in the Inspector concluding that there is a compelling case but, because it differed in part from the non-statutory Statement of Reasons, recommending that the CPO be not confirmed, so that it had to start again on a revised basis, which time might also cause to be revised in its turn. Nor could such a process assuage the sort of feelings of unfairness animating Mr Village’s submission.

As I have summarised earlier on, the Inspector, an architect, found the impact of the very large structures and buildings proposed in the full planning application to be very severe. He was very critical of the AI/LC approach to design. He comments on scale, appearance and design in [12.32] to[12.37] :

“Scale and appearance

12.32

The Council argued that while LP Policy 7.26 may justify reactivation, it does not justify the proposed scale and appearance of the scheme or the jetty. The appellants gave evidence that the design of the plant is unlikely to be larger or smaller than technical considerations demand. However, the plants at Bow and Ferme Park, Angerstein/Murphy’s Wharf and elsewhere demonstrate that concrete batching plants, and cement storage silos, can come in different shapes in sizes. Even accepting that use of the wharf, as sought by Policy 7.26, would involve aggregates and cement, and that this is tantamount to endorsing a batching plant, there is still a gulf between this conclusion and the need for the extent of the proposals as put forward. Unlike the safeguarding for reactivation, there is no presumption that maximising the use of the BRN should be paramount. [2.18,2.19][5.4,5.5][7.7]

12.33

There is no evidence that an analysis has been carried out to show that the projected throughput requires the size and disposition of structures or that the scheme would be uneconomic with a smaller throughput. Even if such an analysis had been carried out, the benefits of maximising the use of the wharf and the BRN, rather than just reactivating it, should be weighed in the balance with any harm that this would cause. [6.51][7.9][8.57]

Design

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. Other than consideration of an asphalt plant, it appears that the lengthy consultations were all based on roughly the same layout and disposition of the same configuration and size of buildings. 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. It is not quite accurate of the Council to say that the genesis of the design makes no reference to protective policies, as the DAS is clear on the importance of the EIDB. It is just that there is no evidence that it was taken into account before the scale and layout were finalised or that it went beyond the cosmetic application of facing materials and landscaping. [6.51][7.10][8.59]

12.35

Moreover, even if the scale of the plant was accepted as necessary, either for viability or to maximise the use of the wharf, the drawings refer to a specific proprietary unit and the cement silos would be purpose made. 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, stand entirely above the ground or be fully enclosed as one unit so preventing any views between them. [3.1]

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. Indeed, there is little identification of these, or opportunities, unlike the analysis carried out for the Objectors. It may well be that it is unusual for a concrete batching plant to be proposed in such a sensitive location. However, Ferme Park is sensitive because of its residential neighbours, and shows how a plant can be adapted, and the representations following consultations for the scheme at OW highlighted the importance of its visual context. [3.7][8.52]

12.37

Other than landscaping buffers to the EIDB and the Thames, the layout appears very similar to the engineers’ early proposals. It appears that one workable solution was found and that this was never seriously queried. While there is extensive evidence of design consideration and presentation after the layout and scale had been determined, there is limited evidence to suggest that the disposition of buildings and accesses on the proposed layout has been considered with regard to any factor other than the convenient and efficient running of the proposed plant. [3.4][3.7]”

The Inspector’s criticisms continued in [12.41]: there had been little consideration of the potential to exploit the different levels around the site, and no evaluation of whether individual buildings on the site could be better arranged to take account of views, or obvious attempt to relate building heights to surroundings or to position the taller buildings where they might have less impact. He was not yet done: [12.42] the timber cladding acknowledged the problem without providing a solution, when they ought to have looked afresh at the early design stages; the appellants paid scant regard to the existing setting, treating it basically as an industrial setting. “This limited analysis prior to determining the scale and arrangements of elements within the scheme is a considerable flaw which has resulted in proposals which pay scant regard to anything but accommodating a proprietary batching plant, storage and circulation. Indeed, for this reason the attempts to disguise the buildings under timber cladding may well have been misguided from the start.” And in [12.43], he said that the complex and sensitive surroundings should have been part of the original parameters. [12.44]: “Consequently, it was not enough to say that the wharf is safeguarded, and so anything goes. All reasonable steps should be taken.” He instanced a batching plant at Ferme Farm where efforts were made in relation to noise and dust and saw no reason why a similar approach should not be taken here to reducing the visual harm “beyond mere camouflage”.

At [12.59] the Inspector said that the appeal scheme had not taken all reasonable steps to mitigate the impact, or at the very least had not shown that it had taken all reasonable steps. “There is every reason to suppose that reactivation, including a batching plant, could be achieved with a better design and layout, ideally by including the same extent of plant and storage, but, if not, through scaling it down slightly”. The arguments in favour of reactivation did not “justify poor design in specific proposals which could and should do better.” Dismissing the appeal would not prevent reactivation but only the harm from this particular proposal.

Finally he concluded:

“12.61

In principle, reactivating the wharf would conform to the Development Plan as a whole, despite some unavoidable harm to the environment. However, there is no reason to believe that it would not be possible to devise a viable scheme that would overcome much of the environmental harm but, due to the poor design and layout, the specific appeal proposals would not accord with the Development Plan. There are insufficient material considerations to outweigh this conflict. On balance, the proposals would be contrary to the Development Plan and the appeal should fail.”

The issue arose again in the CPO decision, and the Inspector considered it first under the heading of “Character and appearance”. He said [12.73], having referred to the weight which supporters of the scheme gave to the reactivation of the wharf over the environmental harm it would do, “However, contrary 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.” The site context should not prevent the reactivation of the wharf, but the design should clearly show how that context had been taken into account. Providing that it would be possible to design a scheme that would cause significantly less harm, which it very probably is, any outstanding harm could therefore be outweighed by the benefits of reactivating the wharf.” And at [12.74], he commented that a better layout and design should not be significantly more costly than the elaborate timber cladding. “While dismissing the appeal would lead to some delay, if the SoSDfT was minded to confirm the CPO, and given that the jetty is in outline form only, a better design need not take much longer than the approval of reserved matters.” The harm had a different effect on the planning appeal from that which it had on the CPO: [12.83] it counted against the planning appeal,

“But it need not count heavily against the CPO. Rather, there would remain a reasonable prospect that an improved design and layout would be granted planning permission and could achieve the goal of reactivating the wharf without the harm identified. In this case, looked at in the round, the modal shift would mean that the environmental well-being would count in favour of acquisition.”

He then considered it under the heading of “Compelling case”. [12.121] and [12.122], where he returned to his suggested way of dealing with delay [12.74] which the refusal of planning permission would cause, are important:

“12.121

Depending on the grounds, the PLA accepted that if planning permission is refused, it would be unlikely that the CPO would be confirmed as the scheme could not be implemented. This is not surprising given that it is seeking both confirmation of the CPO and the planning permission. However, this does not necessarily follow. The Circular only requires a reasonable prospect that the scheme would proceed. It is a matter of judgement 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. [5.30][12.50][12.63]

12.122

To refuse planning permission would lead to a delay. However, the PLA has been seeking to acquire OW for many years and the forecasts for growth are steady rather than urgent. Moreover, if the SoSDfT advised the appellants that he was minded to confirm the CPO, it should not take so long for the appellants to obtain an acceptable planning permission that confirmation could not be justified or that it could not wait.”

The conclusion is [12.123] that all of the above reasons provide a strong justification in the public interest for making the Order. The last sentence of [12.122] is not couched as a specific recommendation; the recommendation that followed [12.123] was that the CPO be confirmed.

The Secretary of State did not adopt the “minded to confirm” approach. His letter referred to what the Inspector said at [12.83]. He accepted the Inspector’s conclusion that “there is no evidence that it would not be possible to develop an alternative design of the batching plant… nor that these could not be custom-built to deal with the specific constraints…of the site.” At [34], the Secretary of State noted that the Circular only required “a reasonable prospect that the scheme would proceed” before confirming a CPO. He referred to [12.121] and [12.122], and the Inspector’s comment about a “minded to confirm” letter. At [35], the Secretary of State continued:

“The Secretary of State, after careful consideration, concluded that he agrees with the Inspector’s reasoning that there is a realistic prospect that the scheme could be granted planning consent, subject to a revised design being submitted that dealt with the concerns of both the Planning Committee and local residents. Therefore, he has taken into account the wording of Circular 06/2004, that ‘where planning permission… has not been granted, there should be no obvious reason why it might be withheld,’ and agrees with the Inspector’s conclusion it should be feasible for the planning permission to be obtained within a reasonable time frame and therefore there is a reasonable prospect that the scheme could proceed. Appendix A of the Circular 06/2004 accepts that planning permission may not have been obtained before proceeding with an order (paragraph 15)”

The Secretary of State then concluded that it could not be in the public interest for OW to remain vacant when there was a reasonable prospect of a scheme being developed that would meet the purposes of the PLA Act, supported by the up to date parts of the Development Plan.

Mr Village made a number of submissions under this head. (1) The confirmation of the CPO despite the refusal of planning permission meant that the Secretary of State had ignored the requirement in the Circular that there be a “reasonable prospect” that the “scheme” for which the land was required would go ahead, alternatively had misinterpreted it, or had reached an irrational conclusion on it. The “scheme”, for the purpose of the Circular, was not any wharf use of OW but the particular development comprised in the AI/LC planning appeal. (2) That is how the PLA /AI/LC had put their joint case at the Inquiry. At the Inquiry it had been the PLA/AI/LC case that there was very little which could be done to change the scheme and still reactivate the wharf. There was no evidence to support the conclusion that there was a reasonable prospect of an alternative scheme gaining planning permission in the light of all the evidence at the Inquiry, including in particular that from AI/LC. There was no evidence on the viability of any alternative scheme, or of the possibility of a viable scheme overcoming the environmental harm produced by the AI/LC scheme. The Inspector had commented on the absence of evidence to support the proposed design and layout put forward, but he had irrationally concluded that a better and viable alternative scheme would come forward. A different scheme could have different consequences in the balancing exercise, since throughput and modal shift could be different. No such balance had been struck nor could it be struck on the material available. (3) The Secretary of State, unfairly, had failed to give the parties the opportunity to address him on why he should not confirm the CPO if the planning appeal were dismissed, on the grounds which led to those decisions. There is some dispute about whether the Inspector has accurately set out the position of the parties as to whether, if the planning appeal were dismissed, the CPO could nonetheless be confirmed.

In essence, these grounds allege that the CPO was, but should not have been, confirmed on the basis of a different scheme from that put forward by PLA/AI/LC at the Inquiry, and that different and unknown scheme was not supported by the necessary evidence, nor was it fair for the Secretary of State to confirm the CPO without giving Grafton the chance to deal with this different and unknown scheme as the basis for confirmation.

(4) With permission, Mr Village added Ground 9 to the claim, which I record as his fourth submission under this general head. It arose this way. Mr Banner had submitted that in [12.122], by the reference to a letter to the appellants saying that he was “minded to confirm” the CPO, the Inspector was simply saying to the Secretary of State that he could confirm the CPO and that it would not take long for the planning permission to eventuate; it had not been a suggestion that the Secretary of State issue a “minded to confirm” letter which would lead to the permission for the revised scheme being sought and granted reasonably quickly before final confirmation of the CPO. Mr Harris submitted that [12.122] should be read as Mr Banner contended. I expressed surprise at that interpretation which seemed contrary to the clear language used by the Inspector. An adjournment of the case was necessitated for other reasons, and on resumption, Mr Banner submitted, with the support of a witness statement from the Inspector, as to which more later, that the Inspector in [12.122] had suggested, though did not formally recommend, that the Secretary of State could confirm the CPO without a planning permission, but that, an alternative course would be to send a “minded to confirm” letter, with actual confirmation following the anticipated rapid grant of a different permission. The amended ground alleged that the Secretary of State failed to construe correctly the suggestion by the Inspector, that a possible way of reconciling the refusal of planning permission with the requirement in the Circular of a reasonable prospect that the CPO purpose would be implemented, would be for a “minded to confirm” letter to be sent, and thus he ignored a material consideration.

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.

It is obvious that the Inspector and Secretary of State would have erred if it had been a requirement of law or policy that the CPO be not confirmed unless the appeal scheme with which it was promoted were permitted. That scheme was refused, and it was unlikely in the Inspector’s view that the re-examination of design and layout would succeed in justifying that which had been found so objectionable; [12.34].

There is, however, no statutory provision or policy requiring that a planning permission, or other necessary project consent, be in force for the development or use of the land for the purpose for which the CPO is to be confirmed. 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.

The fact that the PLA put forward a particular scheme as the basis for saying that there was a reasonable prospect of the purpose of the CPO being fulfilled, and for measuring the public interest in compulsory acquisition to go into the balance against the private interest in the landowner retaining his property, would therefore not bar the PLA from saying at the same time that another, lesser scheme could also come forward, and adequately justify compulsory acquisition if its favoured scheme were refused planning permission.

The CPO here could have been confirmed, even if no planning permission had been sought at all, provided (1) that the Secretary of State concluded that there was a reasonable prospect of the wharf receiving planning permission for aggregates and cement handling, with or without concrete batching, (2) that the evidence showed a reasonable prospect that such a permission would be implemented, (3) that what was reasonably in prospect was sufficient to show that the balance of public advantage over private disadvantage compellingly justified compulsory acquisition, and (4) that, if there had been a change in the basis upon which the CPO was to be confirmed, the procedure adopted gave a fair opportunity to the landowner to meet it.

Mr Village submitted that the promoters’ case at the Inquiry was presented on the basis of the planning appeal scheme. Their case did not include an alternative basis that the CPO should be confirmed, even if the appeal were dismissed, because there was a reasonable prospect of the grant and implementation of some other permission for aggregates/cement handling, with whatever throughput that might yield, which would be of itself sufficient to make the compelling case for compulsory acquisition. I am satisfied that Mr Village is right about that.

I observe at the outset that the PLA, as acquiring authority, presented a joint case with AI/LC as its development partner. There is nothing wrong at all with such a joint case, but the acquiring authority’s case naturally becomes aligned with and based on the specific scheme put forward by the development partner, unless the degree of leeway for one to fail but not the other, is made clear. But such a case would require not just the assertion that it included that alternative basis: the assessment of the extent of public advantage and the reasonable prospect of implementation would have to be made out by evidence on that alternative basis as well, and fairly.

It seems clear from the statutory Statements of Case, though not from the Statement of Reasons, from the opening and closing submissions of the PLA/AI/LC, the nature of the evidence called, and the recording of the case by the Inspector, that the appeal scheme was the only basis upon which the reasonable prospect of the achievement of the CPO purpose was put forward by the PLA, and the public benefit of acquisition assessed.

The Outline Statement, in section 7, puts that proposal forward as the “scheme” for those purposes, summarised in the Conclusions at 10.1(e) as “the prospect of a genuine scheme, developed by the PLA with its partners AI/LC for the reactivation of the wharf.” The Statement of Case is similar. In Mr Harris’ opening submission, [12] it is that scheme which is the basis for its contention that there was “clearly a much more than a realistic prospect that the proposal will proceed.” The proposal was the re-establishment of a viable functioning wharf. The case was not put on the basis of that proposal, or whatever other aggregates/ cement handling development might reasonably be permitted, if the appeal failed. The same is true of his closing submissions. The case was not that, if the appeal failed, the CPO should be confirmed because some other unspecified permission was likely to be granted, scope unknown, to reactivate the wharf for aggregate/cement handling which, in the light of the policy support and Grafton’s stance, was sufficient for compulsory acquisition. I do not see that case made at all in the submissions to the Inquiry. The PLA/AI/LC case was that the CPO should be confirmed because the appeal scheme was the only sensible way to achieve the throughput desired by the operator, and this represented the “real world” need and modal shift; and the development partner had been prepared to commit a very large sum of money to this appeal scheme.

The Inspector’s report in effect records all this. [6.62] summarises how the PLA put the case: OW was one of the best placed wharves to meet “the real world market interest, and the forecast need, for construction materials capacity. The PLA has successfully reactivated PW and a commercial operator is promoting the scheme. There is much more than a realistic prospect that it will proceed.” It was a “wide-ranging and holistic” case; [6.62]. In [6.63] he records the PLA case that “the proposal” helps to maximise use of the BRN and modal shift, would reactivate a viable and well located inner urban wharf, meet an “immediate and real world market need and an identified shortfall”. “Individually these points justify the CPO. Taken together the case is even more compelling.” This cannot be taken as meaning that the CPO should be confirmed regardless of the permitted form of reactivation, and its aggregates/cement throughput, or of the prospect that someone would implement any form of scheme which might emerge from the planning process. “The proposal” is the PLA/AI/LC promoted planning appeal scheme. The point being addressed in [6.62-63] was that the case for confirmation was not dependent on the quantitative shortfall figure or the debate about the soundness of the SWR, as Grafton had sought to argue. It was the “real world” case, based on what AI/LC would do, with their particular markets and site specific design, which made the CPO case.

The Inspector recorded the PLA case on the potential for variation in layout and design at [6.51], and it is important: “The height and scale of the scheme results from the functional requirements of its use and there are limited opportunities to manipulate these parameters. [Footnote: Tavernor: a development of this nature is unlikely to be larger or smaller than technical considerations demand.] The proposals would have to deal with bulk aggregates and so would be appropriately utilitarian and functional in appearance. It would be for a high volume, low profit use which would not produce the profits necessary to fund a high cost building.” I emphasise the words “limited opportunities.” Professor Tavernor, described by Mr Harris to the Inspector as “probably the country’s most eminent urbanist”, had given evidence for the PLA/AI/LC to show that the design and layout of the buildings were justified in their setting and for their purpose, in order to support the PLA/AI/LC contention that this particular scheme was really what would have to be permitted if reactivation were to take place in “the real world”. (I also note condition 34 on the outline planning permission granted for the jetty by LTGDC. It prevents development taking place until planning permission has been granted for the part of OW in LB Tower Hamlets’ area with the capability to handle 350,000 tonnes of aggregates and 260,000 tonnes of cement pa delivered by river. The reason for this was to ensure that the development was implemented in its entirety, and to accord with the policies of the LP. There was no appeal against this. This is what was being promoted.)

Mr Village’s closing submission to the Inspector said that “in answer to the Inspector’s questions of all the planning witnesses (and in accordance with their response), 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 the Inquiry is the scheme which underpins the CPO.” He challenged Mr Harris to say otherwise. Mr Harris did not. On the contrary, what he said is reflected accurately in [6.59]. Indeed, in his closing submissions, Mr Harris [124] commended their fully worked up scheme on which more than £2m had been spent.

What the Inspector says in [12.121] confirms how the case was put, because he would have had no need to discount the PLA’s evidence that the planning appeal and CPO went together, saying, and I paraphrase, “Well they would say that wouldn’t they”. It is clear that that is exactly what they did say. He would have referred to their alternative or fall back case at this point, had they had one.

The fact that the Inspector, and only the Inspector, asked witnesses a question about whether the CPO could be confirmed were the planning appeal dismissed, and the way the witnesses answered, supports Mr Village’s point about how the PLA/AI/LC case was put. I deal with the evidence about these questions when dealing with fairness. But in my judgment, it is clear that there would have been no need for the Inspector to ask witnesses whether the dismissal of the appeal could lead to confirmation of the CPO, or to discount the PLA/AI/LC answers as he did, if their case had contained an explicit fallback position that, if the appeal were dismissed, the CPO should nonetheless be confirmed because of the reasonable prospect that some acceptable aggregates handling permission would emerge, would be implemented, and would be either the same or sufficient in throughput to make a compelling case in the public interest. The issue arose in the Inspector’s mind, and it was he who asked the question about it of so many witnesses on all sides, and not the PLA, precisely because that was simply not part of the PLA case.

In the light of that conclusion as to what the PLA/AI/LC case was, it follows that the CPO was confirmed by the Secretary of State, accepting the Inspector’s conclusions, on a basis other than that put forward by the PLA/AI/LC.

What is less clear is the basis upon which the CPO was then confirmed. This is not surprising as no such basis had been canvassed at or after the Inquiry. The Inspector contemplated, but thought it unlikely, that the same design and layout could be justified if the evidence showed that that was the only way of bringing about the use of the wharf with an appropriate degree of modal shift, but he reached no concluded view on that; [12.34]. That cannot be the basis upon which he concluded that there was a reasonable prospect of a scheme coming forward. He concluded that the same throughput might be achieved with no or but a slight change to the extent of the plant and storage, but better designed and laid out [12.59], but does not return to that particular formulation when dealing with the CPO itself.

His conclusions there are more vaguely expressed, as set out above; he may have concluded that some other scheme of unspecified throughput would be permitted and implemented. His conclusions suggest to me however that he thought that a scheme would be granted planning permission which was of a throughput not significantly less than the appeal scheme and that AI/LC would therefore still implement it. When dealing with funding, at [12.86], the Inspector noted that the development agreement between the PLA and AI/LC had been finalised and commented on after the Inquiry, that AI/LC were committed to leasing the site, when acquired, from the PLA, and that this improved “the already good prospect that the scheme would proceed and adds weight in favour of confirming the Order.” The lease was not tied to any specific planning permission and so did not depend on the success of the planning appeal.

In [12.117], dealing with the “Compelling case”, the Inspector said “viability is probable and funding is in place demonstrating a reasonable prospect that the scheme would proceed.” The reference back to [12.83] shows that “the scheme” is not the one for which planning permission had been sought, since that is the paragraph which deals with the prospect that another scheme would come forward if, as he recommends, the present planning appeal is dismissed. In [12.118] and [12.119], he refers to there being a better than reasonable prospect of “a scheme” being developed. In [12.121] above he reverts to “the scheme” which in the first reference is the planning appeal scheme, and in the second is a broader reference to a water borne aggregate/ cement handling facility at OW, so far as I can tell, with or without a concrete batching plant.

The decision letter appears broader in its basis for confirmation, although accepting the conclusions and recommendations of the Inspector. I note [10]: there was strong support in the policy framework for safeguarded sites for reactivation, which the landowners did not intend to bring about. That use was, in the planning sense “viable”, and OW was well located for the concrete markets where development was expected. This use would contribute to removing freight movements from London roads. The use of the wharf for aggregates handling would facilitate the growth of London; [19] the potential for modal shift was “a further factor that helps to justify the need for its compulsory purchase.” This does not suggest that the Secretary of State’s decision to confirm the CPO was critically dependant on some minimum throughput in order for the public benefit to be made out. In [22] the Secretary of State comments: “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.” That comment is also more general and appears to go wider than a scheme with a throughput not significantly different from that of the particular scheme which the PLA/AI/LC had promoted. In [27], he concludes that securing the provision of port and harbour facilities could not be achieved by any other means, which strongly supports the CPO. That is, in my judgment, another important indicator that the CPO was confirmed on the basis that this safeguarded wharf could only be brought into use by a CPO, and bringing it into use would generate a sufficient level of public benefits in transporting aggregates by water to where they would be well placed for the construction markets of NE London, and in the Lea Valley Opportunity Area in particular.

There was a reasonable prospect that “the scheme would be granted planning consent”; [25]. That is a scheme for the handling of aggregates, perhaps including batching, at OW; it cannot be a reference to the appeal scheme; no particular throughput is mentioned. The Secretary of State thought that the funding for the scheme was in place; [37]. It was in that paragraph that he made the point, as had the Inspector, which to my mind lay at the heart of the confirmation:

“It cannot be in the public interest for this site to remain vacant when there is a reasonable prospect of a scheme being developed that would meet the purposes of the Port of London Authority Act 1968 and would be supported by all up-to- date documents within the development plan.”

In my judgment, the CPO was confirmed by the Secretary of State on this rather broader basis, devoid of conclusion about the achievement of any particular throughput of aggregate/cement handling over the wharf, whether insignificantly different from or rather less than that which the appeal scheme would have achieved. A planning permission would be forthcoming for that use; that would set the limits for what was acceptable; that acceptable level would be implemented by AI/LC, and the wharf would be reactivated to the public benefit.

Was there a sufficient evidential basis for the conclusion that there was a reasonable prospect of an acceptable planning permission being granted and implemented, sufficient to warrant confirmation of the CPO?

In my judgment, it is plain that there were very real limitations on the evidential basis which either the Inspector or Secretary of State had for their conclusions on this crucial issue in a compulsory acquisition case, whether on what I consider to be the probable narrower Inspector’s basis or the Secretary of State’s probable broader basis.

No alternative designs or layouts were discussed at the Inquiry; no fall back position was presented; the PLA/AI/LC case did not include this broader basis. It was not the PLA case that there was some alternative scheme, however generally expressed, which sufficed. Quite the reverse: the PLA/AI/LC evidence was to the effect that the appeal proposal was the scheme which, at great cost, AI/LC had designed, was defending, and was prepared to build, as it met their needs. They had put forward a very clear and specific case as to why the design and layout had to be as they were, on impact, on the throughput which would be achieved and on the benefit of achieving such a throughput. This was what the case for the reality of reactivation was built on. It was not in Grafton’s interest to suggest an alternative: Mr Miele, who gave evidence for Grafton, critical of the design, did not provide other layouts or designs, showing how it might be done better. Tower Hamlets LBC said that there was no evidence that a scheme could not come forward which would be satisfactory, but that is not positive evidence that it could; and certainly not that it would have a throughput, modal shift or other public benefit, and financial attraction, sufficient for compulsory acquisition.

The Inspector had no alternative scheme before him from any party in illustrative, diagrammatic or sketch form, or even verbal description. No indications of the impact of a revised scheme, its throughput, or public benefit was provided by any party. No part of his report refers to one. No one has suggested that the Inspector asked questions about how a scheme might look or function or with what throughput or viability for AI/LC, if certain parameters were adopted to reflect the sensitivities of the surrounding area, or if the design and layout were changed in certain specific respects, for example, to cover lower, smaller, relocated batching plant and stores. He did not invite the PLA/AI/LC to produce diagrams to show what could be done, for the purpose of enabling the CPO to be confirmed if the planning appeal were lost. I have set out at some length the Inspector’s analysis and conclusions; they contain no reference to any such material.

No answer is recorded to the comment in his report, [12.121], that the PLA professional witnesses’ evidence was to be discounted because their judgment or, if not their judgment, then their answer was biased through a desire to win the case. I doubt that he gave the PLA the chance to respond, otherwise the response from witness or advocate would have been recorded somewhere.

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.

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. The absence of evidence before him about the particular impact which that unspecified scheme might have would not matter, since the acceptability of whatever impact there might be would be resolved within the planning permission process. LB Tower Hamlets supported the wharf use in principle but not the design and layout applied for. Its case was that the scheme applied for had been poorly conceived; a better scheme could be devised, though it put forward no specific proposals or illustrations. There was no need for the throughput to be at volumes which required so harmful a scheme. The Inspector records its case as including this: “Nor is there evidence that an alternative design could not be achieved for the proposed use.” [7.16].

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. In reality, the PLA/AI/LC case was that the appeal scheme was the way in which the site needed to be developed, notwithstanding its constraints. The report does not refer to any evidence being given by any party as to how the operation could be designed and laid out so as to obviate the problems for such a throughput. One would have expected that to come from PLA/AI/LC once their scheme ran into design based objection, were it readily envisaged, but it did not, because they said it could not be done.

I accept that evidence can be an elastic concept at an Inquiry of this sort, and the role of an Inspector, who is not bound to accept agreed evidence, and who is not required to put his own expertise to one side, permits him to reach views which are not put forward by any party, provided it is done fairly. What an Inspector sees on site visits can inform his judgment, although evidence cannot be given there. But I do not accept that that is anywhere near sufficient in the context of this CPO, and in the light of the way in which the evidence was left here. 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. If the CPO was indeed confirmed on the narrower basis, there was no evidence that a scheme with a throughput not significantly different from that of the appeal scheme could be designed acceptably, in the light of the dismissal of the appeal. But, as I come on to, if the Inspector’s judgment stood for evidence on this point, it could not possibly be fair for the CPO to be confirmed on that basis without Grafton being able to deal with it.

If however, the CPO was confirmed on the broader basis rather than the narrower one, and accepting Mr Banner’s and Mr Harris’ submissions to the extent I have, two evidential issues arise: what was the evidence of the public benefits of a scheme of such an unspecified throughput and what was the evidence of a reasonable prospect that it would be implemented? In my judgment, the Secretary of State could reach a conclusion on the first of those issues but had no evidence on the latter to support confirmation of the CPO.

It is obvious that there could be no evidence as to the specific throughput or as to the degree of modal shift which would arise from the implementation of a scheme which was not yet designed. There was thus no specific measure of the public benefit to go into the balance in favour of compulsory acquisition. But this broader basis itself means that the Secretary of State confirmed the CPO concluding that the level of throughput did not matter as such: the planning permission reasonably in prospect, in striking the balance between impact and benefit, would produce a sufficient throughput to warrant compulsory acquisition; the policy favoured the use of OW for freight handling, and aggregates in particular; without the CPO it would not be so used; and in use there would be some beneficial modal shift. So, there was an adequate basis for a lawful conclusion that the throughput would be sufficient, whatever it was, to justify acquisition. That was a judgment the Secretary of State was entitled to reach. No greater level of detail was required.

The second point however is whether there was evidence of a reasonable prospect that such an unspecific scheme would be implemented. The evidence from PLA/AI/LC was that the development agreement/lease was not dependent on permission being granted for the appeal scheme. But that did not mean, and the Inspector and Secretary of State made no findings to this effect, that AI/LC would be obliged to implement whatever emerged from the planning process. It would be very surprising if AI/LC were obliged to take a lease of the land and to develop on it whatever scheme finally achieved permission, however the costs of their doing so fitted with the profitability of their handling whatever quantity of aggregates it permitted. It would be particularly surprising in view of the evidence they gave at the Inquiry about the appeal scheme. The evidence of funding and implementation was directed to that scheme. The fact that the lease may not be confined to that particular scheme is not evidence that there is a wholly unconfined obligation to implement whatever is permitted. That is what the evidence on implementing would need to show if the development agreement/lease were the basis for the conclusion on implementation.

There is no other evidence of the reasonable prospect of such a scheme being implemented. There was no conclusion nor basis for a conclusion that the scale of the permission itself would be measured by what AI/LC would need to implement it; and the PLA/AI/LC evidence about the scale of development necessary for the throughput AI/LC needed, did not prevent the dismissal of their appeal. The Inspector’s cynicism about the reason for their evidence does not supply the evidence of a reasonable prospect of their implementing whatever comes forward. There was no evidence of a third party waiting in the wings to implement what ever might emerge.

The justification for the CPO should be compelling in the public interest. The land cannot be acquired unless there is a reasonable prospect that it would be used for the purpose for which it is acquired. That “reasonable prospect” test cannot be allowed to become an undemanding threshold. A reasonable prospect that the land will be put to the use for which it was acquired, so as to achieve the benefits which warranted the acquisition requires sound evidence, sufficient to warrant taking someone’s property from them.

The decision must be quashed for the want of evidence to support crucial conclusions.

Did Grafton have a fair opportunity to deal with the change in the basis of confirmation?

I deal here with the evidence about what questions the Inspector asked since it is primarily relevant to fairness. But it also supports my judgment about the lack of evidential support for the Inspector’s and Secretary of State’s conclusions.

The Statement of Facts and Grounds, [129], supported by a Statement of Truth, asserted that the Inspector’s report had not given the full picture: it had been common ground at the Inquiry that if the planning appeal were dismissed, the CPO could not be confirmed. It was the Inspector who asked all the planning witnesses whether the CPO could be confirmed if the planning appeal were dismissed, and received the same answer from, as Mr Village emphasised, all the planning witnesses. [12.73] of the report was wrong if it suggested otherwise in saying:

“Contrary 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.”

Ms Owen’s witness statement for the PLA said that the Inspector “made a point of asking every relevant witness questions reflecting this very potential”, even recalling one witness to put that specific question to him. By “relevant”, she meant every witness, planning or otherwise, who was asked that question. She said, and it is not disputed, that Mr Brooke, an economic and planning development consultant called by the PLA, answered the Inspector saying that whether there could be two different decisions would depend on the grounds for the refusal of planning permission, but if they were ones which could be overcome in a subsequent application, that need not stand in the way of the CPO. Mr Woolner, a town planner called by the PLA, answered that he thought that confirmation of the CPO would be unlikely were the planning appeal dismissed. Ms Owen says that Mr Woolner did not accept that there was no potential for confirmation in those circumstances; but in the light of later evidence, I am satisfied that she is not recording what he said rather than noting, a little ambiguously, what he did not say.

Mr Sharp, solicitor for Grafton, pointed out in his witness statement in reply, that Ms Owen had not taken issue with the comment that all the relevant planning witnesses agreed that they expected the CPO not to be confirmed if the planning appeal were dismissed. Mr Trimmer, Head of Planning for the PLA had answered that the planning appeal and CPO should go together. Mr Brooke only gave evidence about the SWR and primarily about economics, although he had answered the Inspector’s question as Ms Owen had said. Mr Woolner, who had been recalled to answer the question, had said that it was the planning permission which could still be granted if the CPO were not confirmed, but that the converse was unlikely. He did not go further than that. He was not asked to comment on what Mr Brooke had said. Nor did the PLA seek to take this issue further with its witness. Mr Edmonds for Grafton was not asked by the PLA whether the CPO might still be confirmed if the planning appeal were dismissed; he had answered the Inspector’s single question of him, saying that if the appeal failed, so too must the CPO. No witness called in relation to the planning issues expected the CPO to be confirmed if the planning appeal failed. I accept that evidence.

I conclude that what happened was unfair. Grafton did not have a fair crack of the whip. The basis of confirmation was not the basis upon which the Inquiry had been conducted, as I have already concluded. If there was a case sufficient to justify confirmation of the CPO on a different basis, Grafton ought to have been given a chance to deal with it, but was not.

It was suggested by Mr Banner and Mr Harris that the way in which the Inspector asked questions about the decisions on the CPO and planning appeal differing, as they turned out to do, should have alerted Grafton to the need to deal with confirmation of the CPO in such circumstances. Ms Owen said that the Inspector had made it very clear that the two decisions did not have to go the same way and had indicated that the parties would understand why he was asking those questions, thus, she says, making it very clear that the decisions might differ.

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.

Grafton could have made submissions on what procedure should be adopted to deal with two potentially differing decisions, but not on the merits of the confirmation of the CPO without the planning appeal being allowed. Grafton was alerted to the fact that it might happen but not as to why it might. It is very clear that PLA/AI/LC did not adopt the approach of saying that the CPO could be confirmed but the appeal could be dismissed, and so its case provided no indication as to a possible basis for such decisions. Mr Harris did not make any clear submission to the Inspector about a basis for confirmation of the CPO were the planning appeal to be dismissed, although submitting that any one of the arguments put forward could warrant confirmation. It is clear that that is not a specific fallback argument. Mr Village addressed the issue but only on the basis that the answers of the witnesses were all one way; he did not address the potential significance of some other planning permission being sought.

There was no material from a party which Grafton could address as a basis for confirmation of the CPO were the appeal dismissed. There was no suggestion that a redesign could lead to no more than a slight change in throughput and benefit, and no suggestion that the CPO might be confirmed on the basis of whatever scheme might be granted permission, or that such a scheme would be implemented. There was no specific evidence about any alternative better scheme from anyone, in response to the Inspector’s questions, and certainly not from PLA/AI/LC.

It is clear that the Inspector offered no indication as to the basis upon which he might take that view. What Ms Owen means by saying that the Inspector said that everyone would understand why he was asking the questions is not that he explained the basis upon which he might recommend confirmation of the CPO along with dismissal of the planning appeal, because there is no evidence that he offered such an explanation, but that the questions simply made clear that he might so recommend. That is true but irrelevant.

The generally consistent answers to the Inspector’s question from all sides, as set out above, meant that no material was put forward by any party to provide a basis upon which the CPO could be confirmed, but the appeal dismissed. The general position on both main sides to the CPO was that the dismissal of the appeal could not lead to the confirmation of the CPO. Ms Owen said that it had not been an agreed position that there could be no CPO if the planning appeal were dismissed. I am not prepared to accept that as a fully accurate characterisation of the position; there may have been no formal statement to that effect, but were she right, there would be material recorded as evidence or as submissions in the Inspector’s report, or elsewhere, to show on what basis the confirmation of the CPO was still sought and justified by its promoters, if the appeal were dismissed. There is nothing at all. The whole tenor of the joint PLA/AI/LC case contradicts the impression which her comment might leave. Ms Owens did not say that there had been an agreed position that the two decisions could be different.

I add that [12.73] is a curious comment. It is not clear from the evidence before me, or recorded by the Inspector, what one or more witnesses the Inspector is referring to in addition to Mr Brooke. There may I suppose have been a witness from Tower Hamlets LBC, but the Inspector uses the expression “both sides”, and [12.73] is in the CPO section of the report. It is difficult to see how Grafton could not be seen as one of the two “sides”; yet it is impossible to see where a Grafton witness said that the CPO could be confirmed without the planning appeal being allowed. A wrong impression of a division of views within Grafton appears to have been given.

The Inspector gave no indication as to the basis upon which he might reach differing decisions, even though the broadly common position of the parties remained clear at the end of the Inquiry. One of the very few witnesses who did not answer that the two went together said that the answer could depend on the reasons why the planning permission was refused. It would anyhow have been reasonably clear, in the broadest of terms, that design and layout was the likeliest cause of differing decisions, where the planning appeal was dismissed but the CPO confirmed, and that that would happen if the LB Tower Hamlets’ case succeeded sufficiently to lead to the dismissal of the appeal. But that only illustrates the problem and the limitations of the Inspector’s questions as supposedly giving sufficient notice of the change in basis for confirmation so that Grafton could address it.

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. Had he done so, that would have alerted Grafton, or indeed the PLA, to the need to address such a point. He asked no questions, saying for example that he was asking them to test hypotheses, about specific parameters and their effect on design and throughput, or records no answers if he did. It might have been that it was only the batching plant or its size which the Inspector was thinking was objectionable, or some other readily remediable aspect of the layout or design. The Inspector did not say anything to suggest any specific basis or thinking which would enable comment to be made on it. No points were put forward by him to focus discussion about an alternative, which could lead to differing decisions. He did not suggest that he might recommend confirmation of the CPO on the basis of whatever scheme was granted planning permission, nor say that he assumed that AI/LC would build whatever was permitted.

The parties to an Inquiry cannot be expected to press an Inspector to reveal what his thinking is; they are entitled to, and indeed must, assume that he will reveal enough for them to respond fairly, if it is not an issue raised by the parties. It seems to me clear that Grafton entirely reasonably did not press the Inspector to explain his thinking, or try to get him to explain what was in his mind, so as to subject it to criticism. This would have been a very undesirable way to proceed.

It is difficult to see what else Grafton could have been expected to do in the light of the PLA evidence and the clear way it put its case, the Inspector’s questions, limited as they were, the difficulty in questioning an Inspector, the difficulty in anticipating that the Inspector would adopt the dismissive attitude towards the PLA/AI/LC design evidence, which he did, yet still recommend confirmation of the CPO, and the difficulty of anticipating the Inspector’s thinking about what form of redesign would be close to the same throughput or at least adequate. There is no way in which Grafton could have anticipated the point it had to deal with: an acceptable redesign which could achieve very much the same throughput, or alternatively a significantly reduced throughput which did not matter very much, because whatever was permitted would be built, and the difference did not matter in terms of providing a compelling case in the public interest. The Inspector was the only one who knew what he was thinking could be the justification for the differing decisions. It could not be for Grafton to redesign the AI/LC scheme so that it was acceptable with the same throughput or to show that it could not be done in the light of the PLA evidence. Grafton had not come to meet a case, and nothing at the Inquiry alerted it to the need to defend against the CPO, on the basis that any reasonable aggregates handling facility with some unspecified throughput would suffice for a CPO regardless of either shortfall or “real world” need, which is what PLA/AI/LC were promoting. Nor was it for Grafton to design an acceptable scheme in its view, and then appraise its benefit, as a means of objecting to the CPO. Realistically, if the Inspector’s judgment stands as the evidence, it is impossible to see why, in the interests of fairness, he should not have explained it to the parties for comment.

Grafton had no opportunity to address the basis upon which the Secretary of State confirmed the CPO. Grafton did not have the opportunity to comment on the prospect of an acceptable scheme with sufficient changes being designed so as to achieve the same approximate throughput as the appeal scheme, if that was the assumption which underlay confirmation. It had no chance to give evidence that the only acceptable scheme could not achieve that througput. Indeed, it would have been very difficult for it to have done so given the wholly unformed and vague state of the relevant evidence it would have had to address. Grafton had no chance to comment on whether any lesser throughput which possible schemes might produce showed a compelling case. Importantly, it had no chance to explore and comment on the prospect of that permission being implemented, different as it would be from the basis upon which the CPO had been promoted.

The CPO was confirmed, in my judgment, on a basis which Grafton had no real chance to deal with. This was an unfair decision. The Inspector’s questions about differing decisions could not have alerted Grafton to the need to deal with the basis upon which the differing decisions were reached.

The Inspector’s suggestion in [12.122] supports my view that there was something unexpected about confirming the CPO in the light of change in the basis for confirmation and the common understanding of the parties. I accept the Inspector’s later comment that it would be unusual to confirm a CPO without a planning permission. I add that that is even more true where the case has been run on the basis of a particular scheme which is refused permission, and no simple remediable step is identified. I am not sure how far the significance, intentional or otherwise, of his suggestion was really appreciated. It was not considered as an aspect of fairness, but merely as an aspect of whether permission could reasonably be anticipated.

Had the Inspector’s suggestion been adopted that the Secretary of State write to AI/LC saying that he was minded to confirm the CPO if they obtained a planning permission reflecting the Inspector’s concerns, the issue might well have been resolved fairly since the other parties would have been sent copies of the letter and would have had some opportunity to make representations about the substance of the case, and about the effect of the permission before confirmation of the CPO. As it is, Grafton had no chance to make representations about what should happen in the light of the differing recommendations once it could see the basis for them, or indeed about the substance of the merits of confirming the CPO for whatever scheme, if any, leads to its land being acquired compulsorily.

The decision was unfair, and is quashed for that reason as well as the lack of evidence to support it.

Mr Banner produced a witness statement from the Inspector to explain what he had meant in [12.122]. This is not admissible, whatever comfort it may give to Mr Banner in making submissions. I have explained the reasons why such statements are not admissible, or at best are highly undesirable, in Ioannou v SSCGL [p2013] EWHC 3945 (Admin) [15-53]; see also [2014] EWCA CIV 1432 [41]. The Inspector explained what he meant in [12.122], and comments that this was an unusual situation. I have taken no notice of his explanation; it has no legal relevance. He commented, inappropriately, on the decision letter, and then on matters beyond the [12.122] issue upon which Mr Banner said that he would be seeking evidence. However, the Inspector did not provide evidence, which might have been admissible, on whether he asked at the Inquiry about how to proceed if he recommended confirmation of the CPO but dismissal of the planning appeal, or whether he asked any questions to show what specifically was in his mind about why the decisions could differ.