QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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GRAFTON GROUP (UK) plc -and- BRITISH DREDGING SERVICES LIMITED |
Claimants |
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- and - |
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SECRETARY OF STATE FOR TRANSPORT |
Defendant |
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-and- |
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THE PORT OF LONDON AUTHORITY |
First Interested Party/Second Defendant |
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- and - |
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AGGREGATE INDUSTRIES UK LIMITED -and- |
Second Interested Party/Third Defendant |
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LONDON CONCRETE LIMITED |
Third Interested Party/Fourth Defendant |
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Charles Banner (instructed by The Treasury Solicitor) for the Defendant
Russell Harris QC (instructed by Bircham Dyson Bell LLP) for the First Interested Party/Second Defendant
Hearing dates: 25th February, 26th February and 4th March 2015
Judgment
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Crown Copyright ©
MR JUSTICE OUSELEY :
The legal and policy framework
"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."
"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."
These other material considerations include supplementary planning guidance.
"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."
"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."
The Inspector's Report and the Decision Letters
"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."
The policy grounds: (1) the approach to the significance of the identification of OW as a safeguarded wharf: (a) intrinsic flaws in the SWR
"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]"
"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."
"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]"
"6.22 ...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."
I (b): weight to the SWR and bias
1(c ): safeguarding as a justification of itself for the CPO
(1) (d) Weight and Strategic Environmental Assessment of the SWR
The policy grounds: (2) the planning policy test for viability and the CPO test for "need"
"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. "
"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."
"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."
The policy grounds: (3) policy support for the reactivation of OW by CPO
The policy grounds: (4) policy relating to concrete batching plants
"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]"
The second group of grounds: The change in justification or purpose for the CPO
"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."
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."
"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."
The third group of grounds: the consequence of the dismissal of the planning appeal.
"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]"
"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 SSCLG specifically agreed with [12.61] in [24] of his decision letter.
"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."
"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 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)"
(1): Did the Secretary of State or Inspector err in concluding that there was a reasonable prospect of "the scheme" being permitted?
(2) Was there a difference between the way the PLA/AI/LC presented their case at the Inquiry and the basis upon which the Secretary of State confirmed it?
"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."
(3) 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?
(4) Did Grafton have a fair opportunity to deal with the change in the basis of confirmation?
"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."
Conclusion
Postscript