The Fairness Test

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...