The Court of Appeal uphold High Court's decision to quash the London Wharf CPO

The Port of London Authority (PLA) had hoped to bring the wharf back into use for handling river borne aggregates and cement to increase the use of the Thames as a transport link. Aggregate Industries UK Ltd and London Concrete Ltd had made a planning application for the operational development required for this. The land owners, Grafton Group (UK) Plc had hoped to redevelop the land for residential use.

Last year, then transport secretary Patrick McLoughlin confirmed the CPO even though the secretary of state for communities and local government had rejected the planning appeal for the intended development on the site. McLoughlin confirmed the CPO on the basis that an alternative scheme might secure planning permission.

In the High Court, the judge quashed the CPO in its entirety and upheld the landowner's challenge. The judge held that "the basis upon which the CPO was confirmed was different from the basis upon which it had been promoted throughout the inquiry" and that Grafton was not given "a fair opportunity to deal with his basis for confirming the CPO, changed as it was from that presented at the inquiry".

With the support of the transport secretary, the PLA challenged these grounds and argued that only the confirmation of the CPO should be quashed.

The Court of Appeal reviewed the relevant legislation and analysed the interpretation of the word 'quashed'. It supported the High Court's judgment and held that the whole of the CPO had to be quashed and not just the confirmation. "There is no inherent power to grant a different remedy, lesser or otherwise," said the ruling. 

The Court of Appeal did not support the claim that there was insufficient evidence to justify the confirmation of the CPO. The Court of Appeal ruling held that the planning inspector was "wholly entitled to decide that there was sufficient probability of an alternative, adjusted scheme coming forward and that in those circumstances the CPO should be confirmed". It said this was "quintessentially an exercise of planning judgment".

However, the Court of Appeal did determine that the decision to confirm the CPO was "unfair" on the landowner and that the High Court judge "was right to hold that [the landowner] had been unfairly treated" as at the inquiry the PLA did not discuss or argue that an alternative scheme may be adopted. Consequently, "the CPO was unfairly and therefore, unlawfully confirmed", the ruling said.

Planning expert Susanne Andreasen of Pinsent Masons, the law firm behind Out-Law.com, said: "The case highlights the importance of promoting CPOs on the basis of the underlying scheme rather than a particular planning permission and to ensure that all parties are provided the chance to give evidence on that basis."

"The Court made it clear that the basis on which an inspector may decide there is a reasonable probability of an alternative scheme coming forward does not need to include assessment of a fully detailed alternative proposal," said Andreasen. "However the key point is fairness and a conclusion that an alternative scheme may come forward will not be sufficient to support confirmation of a CPO unless the prospect of it has been part of the case for the CPO and parties have been able to make submissions on this basis."

"It has generally been the case that successful challenges to CPOs have resulted in the quashing of the whole CPO, though to date there has been no clear case law authority on this being the correct interpretation of the legislation. The recently enacted Housing and Planning Act has introduced a clearer position by setting out express power for the court to choose to quash the decision to confirm the order rather than the order itself," Andreasen said.