Ensign Group Ltd v The First Secretary of State

Where a Secretary of State changes a draft regional spatial strategy after an examination in public, Planning and Compulsory Purchase Act 2004, section 9 requires consideration of representations on the proposed changes and publication of adequate reasons for the final changes. An admitted misunderstanding of the examination panel’s recommendations, coupled with a failure to respond to material representations, may amount to non-compliance with that procedural requirement.

In deciding whether to quash under section 113, the court must balance prejudice, planning uncertainty and the statutory development-plan framework. Erroneous figures should be quashed where leaving them in place would create a potential conflict between the regional strategy and the statutory duty of local development documents to conform generally with it.

The claimant sought judicial review under section 113(3) of the Planning and Compulsory Purchase Act 2004 of parts of the Milton Keynes and South Midlands Sub-Regional Strategy.

The Strategy reduced the Northampton Implementation Area housing figure from 31,500 to 30,000 dwellings. The Secretary of State later accepted that this resulted from a misunderstanding of the examination panel’s report. The claimant had made detailed representations explaining why the reduction was erroneous, but the published Strategy gave no response.

The Secretary of State conceded that, in the circumstances, section 9(6)(b) had not been complied with and that the claimant’s interests had been substantially prejudiced. The remaining issue was whether the court should exercise its discretion to quash the affected provisions or leave them in force subject to a corrective statement.

1. Claim allowed. The court quashed the specified parts of the Strategy and ordered the defendant to pay the claimant’s costs.
2. Section 9(6)(b) of the Planning and Compulsory Purchase Act 2004 required the Secretary of State to publish reasons for the changes made to the Strategy. In this case the reduction from 31,500 to 30,000 resulted from a mistaken interpretation of the panel’s recommendations. The Secretary of State failed to address the claimant’s emphatic and material representations challenging that interpretation. The conceded failure to give reasons was therefore a procedural failure causing substantial prejudice.
3. The court did not determine the alternative arguments that the Secretary of State had failed properly to consider the panel’s report or had taken irrelevant considerations into account, because those issues were unnecessary after the concession.
4. Although quashing would create a policy gap and some uncertainty, leaving the erroneous figures in force would create a potential conflict. Under section 24(1), local development documents had to be in general conformity with the regional spatial strategy, while a statement issued as guidance under section 19(2)(a) would merely be a matter to which authorities must have regard. The competing figures could therefore produce uncertainty about the basis on which the Northampton Implementation Area’s local development documents should be prepared.
5. The appropriate course was to quash the erroneous figures and related tables. The Secretary of State could, if considered appropriate, fill the resulting gap through guidance under section 19(2)(a), pending replacement policies. Section 113 did not permit the court to substitute declaratory relief or remit the matter for correction.
6. The quashing covered the Northampton figure on page 10; the corresponding figures and total in Strategic Policy 1 on page 12; all Northampton figures and totals in Northamptonshire Policy 1 on page 35; and the relevant paragraph and table in Northamptonshire Policy 2 on page 36.

First-instance judicial review in the Administrative Court. The claim was allowed and the specified parts of the Strategy were quashed.