The use of compulsory powers by acquiring authorities to secure regeneration of their towns and cities is on the increase, and for those whose interests are subject to CPO there is almost a tacit acceptance that for sensible proposals the confirmation of a CPO is an inevitability, met equally sometimes with an arrogance by the promoting authority and developer that that will be the case.  However the recent case of Grafton Group (UK) plc and another v Secretary of State for Transport (2015) should act as a reminder that the principle of "fairness" will remain the high watermark test when determining whether individuals and companies should be dispossessed of land.

In this case, the Port of London (PoL) Authority made a CPO to acquire Grafton Group's land (Grafton), being an unused, vacant and safeguarded wharf to redevelop the wharf for handling river borne aggregates and cement and for batching them into concrete. Permission for redevelopment was applied for and was refused on design issues relating to the impact of the buildings on the character and appearance of the surrounding area.  The refusal  was appealed.

A co-joined inquiry was held to consider the CPO objections and the planning appeal.  The Secretary of State agreed with the Inspector and dismissed the appeal on poor design, but confirmed the CPO on the basis that there was a reasonable prospect of permission for the redevelopment being granted. Grafton challenged the decision to confirm the CPO.  The crux for quashing the CPO appears to be unfairness, Grafton "did not have a fair crack of the whip".

The judgement confirms that the justification for making a CPO can change between making and confirmation provided there is the opportunity to fairly test this in an inquiry.  Circular 06/04 guidance is supported where permission does not need to be in place to use CPO powers.

The judgement adopts a forensic examination of the evidence (or lack of) in front of the Inspector.  The judge concludes that no evidence was presented to the Inspector  to conclude an acceptable revised scheme was likely, there was no discussion at the inquiry of what that fallback scheme could take nor any assessment of the public benefit which may be derived from it; there was no evidence supporting the reasonable prospect such new scheme would be implemented.  Accordingly Grafton was given no opportunity to respond to the new basis on which the CPO was confirmed; the decision to  confirm the CPO was therefore manifestly unfair to Grafton and the CPO was quashed. 

The Government issued a consultation paper in March 2015 (which closed on 9 June 2015) which proposes to introduce clearer, fairer and faster procedures to promote CPOs.

A version of this article appeared in Planning Magazine, 5 June 2015