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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ensign Group Ltd v The First Secretary of State [2006] EWHC 255 (Admin) (27 January 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/255.html Cite as: [2006] EWHC 255 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th January 2006

1. MR JUSTICE SULLIVAN: This is an application under section 113(3) of the Planning and Compulsory Purchase Act 2004 ("the Act") for an order quashing parts of the Milton Keynes and South Midlands Sub-Regional Strategy ("the Strategy") published by the defendant on 17th March 2005.
2. The claimant has an option to acquire a substantial part of a site to the north of Northampton which it wishes to develop for housing ("the site"). The site is known variously as Buckton Fields or Whitehills and lies mostly within Daventry District Council, with a part of the site being within the Borough of Northampton. In the Daventry Local Plan the site is allocated as part of a development for 1,000 dwellings. In a Regional Growth Area Assessment ("the GAA") published in May 2003, the site was assessed as being capable of accommodating another 500 dwellings. In June 2003 the Consultation Draft of the Strategy was published. It was not in dispute that the policies in the Draft Strategy at that stage reflected the May 2003 assessment of the site's capacity to provide 1500 dwellings.

The Panel's Report

3. A public examination was held into the Draft Strategy in March and April 2004. Daventry District Council submitted representations to the Panel, in which it contended that the site described as Buckton Fields was no longer needed and that the housing numbers allocated to the site would be better accommodated at Daventry itself.
4. The Panel's report was published in August 2004. The Draft Strategy is referred to as the SRS in the Panel's report. In the light of a concession made by Mr Brown on behalf of the Secretary of State (see below), it is unnecessary to rehearse the Panel's recommendations in great detail. The Draft Strategy proposed a total of 29,400 dwellings for Northampton for the period 2001-2021. Because the growth of Northampton would not necessarily respect the administrative boundaries between Northampton Borough, Daventry District Council and South Northamptonshire District Council, the SRS contained a policy for a Northampton Implementation Area ("NIA") to secure the appropriate provision and phasing of the necessary housing in each of the affected districts.
5. The Panel were concerned that the Draft Strategy failed to distinguish between the growth that was already committed through existing planning permissions, allocations in Local Plans, and assumptions about windfalls, and "additional growth" that would result from the proposals in the SRS. Thus, for the NIA only about 1300 of the 29,400 dwellings would be additional growth. The figure for commitments in the NIA (28,100 rounded down from 28,113) included the 1500 dwellings on the site. While the Panel supported the studies that had led to the 29,400 figure, they considered that an additional 2100 dwellings should be brought forward from the decade 2021 to 2031, making a total of 31,500 dwellings for the NIA up to 2021 (29,400 plus 2,100). In the final sentence of paragraph 5.8 of their report the Panel said:

"However, no matter how great the eventual yield from this source [previously developed urban land] it is evident that there will have to be a significant amount of green field development to 2021 to make it possible to achieve our recommended slightly enhanced total of 31,500 completions."

The Panel explained in paragraphs 5.9 and 5.10 why they did not think it appropriate for the Strategy to identify particular growth locations, but said that they were satisfied that the NIA could grow by 2021 to the extent indicated in their recommendations without coming up against overriding strategic constraints. Recommendation 4.5, which dealt with Strategic Policy 1, reflected this reasoning and included a figure of 31,500 dwellings for Northampton, comprising 28,100, which would be provided under "current policies", and 3,400 which would be provided under "SRS additions". When the Panel dealt with Daventry it referred to the District Council's wish to boost the town's role as a sub-regional centre, and to that end to increase the town's rate of growth by increasing the district wide housing provision to 2021 by 1500. The Panel supported this "modest increase", saying in paragraph 5.28:

"This change would have two components. Firstly, the 1,500 dwellings allocated to Daventry in 2001-11 as part of the NIA provision would be removed from Northamptonshire Policy 2 and regarded as related to the non-NIA provision for Daventry. Any Daventry contributions to the NIA resulting from our recommendation R5.1 would be additional to the District figure. Secondly, a further 1,500 dwellings would be brought forward from the decade 2021-31 into the 2011-21 period. We do not consider that this minor rearrangement would have any significant effect on the general quantity and distribution of growth in the SRS."

In recommendation R5.2 the Panel recommended that Northamptonshire Policy 1 should be amended. The table included annual average building rates over the four five year periods between 2001 and 2021, and these totalled 10,800 for Daventry (consistent with the Panel's addition of 1500 to the previous figure of 9,300) and 31,500 for Northampton. There was an asterisk by Northampton, and the corresponding note to the Northamptonshire Policy 1 reads as follows:

"Figures for Northampton include any provision made in urban extensions across local authority boundaries. Such provision would be additional to the figures for the 'receiving authorities' in the above table."

6. The Panel recommended in R.5.3 that Northamptonshire Policy 2 should be amended as follows:

"The Local Development Schemes for Northampton Borough, and the District and Borough Councils of South Northamptonshire, Daventry, and Wellingborough will together identify and provide for the timely preparation of an appropriate set of LDDs making up a Local Development Framework which will put into effect the proposals of the SRS for growth within the Northampton Implementation Area (NIA), making provision for joint working where appropriate.

Together these LDDs will provide for an increase in the number of homes in the NIA in the period to 2021 as follows."

There is then a table which yet again gives a figure of 31,500 dwellings for the NIA.

The defendant's consideration of the panel's report

7. For reasons which it is unnecessary to rehearse, the defendant understood the Panel to have been recommending in paragraph 5.28 of their report that the number of dwellings in the NIA should be reduced by 1500, which would leave a figure of 30,000 dwellings for the period 2001-2021. The department e-mailed the Panel's Secretariat on 3rd September 2004 asking for clarification of the Panel's position. The Panel, having delivered their report, did not think it appropriate to respond. So the Department included in the schedule of changes proposed by the Secretary of State, published in October 2004, amended figures for the NIA. Wherever it occurred the figure of 31,500 was reduced to 30,000. The reason given for this change "was to eliminate errors in the panel report's calculations". In all other material respects the Panel's recommendations were accepted. The claimant's representations.
8. On 10th December 2004 the claimant made detailed representations, contending that the reduced housing provision for the NIA was "inexplicable", that no reasonable or adequate explanation had been given for the change from 31,500 to 30,000 dwellings, and that the "reason for change" was "inadequate and misguided", because, in summary, it did not accord with the Panel's reasoning and recommendations in respect of Northampton. The claimant said in terms:

"Unaccountably, Northamptonshire Policies 1 and 2 of the Proposed Changes suggest a figure of 30,000 dwellings. There is no adequate justification for the decrease of 1,500 dwellings from the level of activity recommended by the Panel.

We believe that inadequate justification/explanation for this position has been set out in the Proposed Changes and we object strongly to the reduction in housing activity directed to the NIA, an outcome that is contrary to the overriding spatial strategy for the Sub-Region."

The publication of the Strategy

9. When the Strategy was published in March 2005, the change from 31,500 to 30,000 dwellings from 2001 to 2021 for the NIA was retained, but no further explanation was given and there was no response whatsoever to the claimant's representations.

The claim

10. This claim was lodged in April 2005, and on 8th June 2005 the Department wrote to the Panel asking whether the Department's understanding of the Panel's recommendations had been correct. The letter to the Panel's chairman said in part:

"The underlying assumption behind the decision to remove the 1,500 dwellings from the Northampton NIA allocation was that the 1,500 dwellings were better provided elsewhere in Daventry. There are extensive brownfield development opportunities in Northampton and greenfield areas such as White Hills area will not be needed in the short to medium term. This decision was based heavily on an interpretation of paragraph 5.28 which focused heavily on the fourth sentence of the paragraph and the word 'removed'. The Panel Report was interpreted as stating that the 1,500 dwellings should be removed from the Northampton NIA figures and counted as part of the Daventry non NIA provision. This explains the arithmetic adjustments. The decision was also conscious of the arguments made by Daventry District Council at the Public Examination that this part of their District was not a sustainable choice for development and that Daventry would be a more appropriate location for growth.

The appellants have a different interpretation of the Panel Report and I have attached a copy of their claim for your information. The appellant's view is that the Panel Report makes it clear that the additional allocations recommended for Daventry (as opposed to those within Daventry District but forming part of the Northampton NIA) were to be considered as additional to any contribution in Daventry to the NIA. Therefore the appellant suggests that the 1,500 dwellings should not have been removed from the Northampton NIA allocation.

The appellant's interpretation appears to rely heavily on the fifth sentence in paragraph 5.28. An alternative interpretation of the meaning of the fifth sentence would see this as making a general point that any growth in the Northampton NIA but within the boundaries of Daventry District would not count against the Daventry allocation.

It would be very helpful to have your opinion on the two interpretations and I look forward to your reply, but please note that this may have to be made public for the High Court hearing."

The Panel chairman replied on 22nd July 2005. So far as relevant for present purposes his letter said:

"At Daventry our recommendations proposed an annual rate of 540 dwellings per annum throughout the period 2001-2021 for Daventry District excluding the NIA. The asterisked footnote to Northamptonshire Policy 1 in recommendation R5.2 makes it clear that any part of the Northampton figure provided by way of an urban extension into Daventry District would be additional to the 540 p.a. With hindsight the use of the word 'removed' in the fourth sentence of paragraph of 5.28 might have been taken to imply a reduction in the NIA figure. The intention was to remove the earmarking of a specific portion of the Daventry provision for an extension to Northampton. Had we intended a lower figure for the NIA than 31,500 we would have proposed this in our conclusions and recommendations in paragraphs 5.4 to 5.11."

That letter was exhibited to a witness statement dated 25th October 2005 from Ms Alker, the Director of Planning within the Government Office for the East Midlands (GOEM). In that witness statement she acknowledged that the Department's understanding of the Panel's intention was wrong. In summary, the defendant now accepts that there was no "arithmetical error" in the Panel's recommendation for Northampton. The figure of 31,500 for the NIA was correct and should not have been reduced to 30,000.

The law

11. The claimant's challenge is brought under section 113(3) on the grounds that (a) the Strategy is not within the "appropriate power", and (b) "a procedural requirement has not been complied with." The relevant procedural requirement is to be found in section 9 of the Act which provides, so far as material:

"(2) If an examination in public is held the Secretary of State must consider -

(a) the report of the person appointed to hold the examination;

(b) any representations which are not considered by the person appointed to hold the examination.

(3) If after proceeding under subsection (1) or (2) the Secretary of State proposes to make any changes to the draft he must publish -

(a) the changes he proposes to make;

(b) his reasons for doing so.

(4) Any person may make representations on the proposed changes.

(5) The Secretary of State must consider any such representations.

(6) The Secretary of State must then publish -

(a) the revision of the RSS incorporating such changes as he thinks fit;

(b) his reasons for making the changes."

In his skeleton argument Mr Brown submitted that, although it was now accepted that the Secretary of State's understanding of the Panel's report was wrong, there was no error of law because, absent any response from the Panel to the Department's initial request for clarification, the Secretary of State's understanding of the Panel's recommendations was a reasonable one. It was further submitted in the skeleton argument that the reasons given for the changes made by the defendant were adequate.

12. The defendant's skeleton argument did not engage with the fact that, while no response had been received from the Panel, there had been an emphatic response from the claimant, pointing out in no uncertain terms that the reduction in the figure of 31,500 for the NIA was inexplicable and contrary to the Strategy if the Panel's recommendations were read as a whole, and, moreover, that inadequate justification had been given for the change.
13. I invited Mr Brown to seek the defendant's instructions on this aspect of the case. Having done so, and without making any concession as to the ambit of the duty imposed by paragraph (b) of section 9 (6), Mr Brown conceded that, in the circumstances of this case, bearing in mind the nature of the changes made by the defendant and the content of the claimant's representations, there had been a failure to comply with the requirements of that paragraph. He also accepted that, for the purposes of 113(6)(b), the claimant's interests had been substantially prejudiced by the defendant's failure to give reasons, although he reserved the right to make submissions as to the extent of that prejudice. (see below)
14. In view of these concession on behalf of the defendant, it is unnecessary for me to consider the other grounds of challenge which Mr Purchas QC would have wished to advance and which are set out in his and Mr Philpott's skeleton argument, namely that the defendant had failed to consider the Panel's report as he was required to do under section 9 because, regardless of any lack of response from the Panel, he simply misunderstood the Panel's recommendations; alternatively, that his failure to understand the Panel's recommendations meant that he had either failed to have regard to material considerations or had regard to an immaterial one.
15. I merely observe that, if the Panel's report is read as a whole, the conclusion that they intended to reduce the housing allocation for the NIA in a section of their report which was dealing with Daventry would appear to be contrary to all of the other indications in the report.

Discretion

16. It follows that the court has power under section 113(7) to quash the Strategy, either wholly or in part. Mr Purchas did not argue for the former but submitted that all the references to the figure of 30,000 dwellings for Northampton for the period 2001-2021 should be quashed, and that consequentially the total figures in Strategic Policy 1 and Northamptonshire Policy 1, which included the 30,000 figure rather than 31,500, should also be quashed. In addition, the annual average building rates and five yearly totals in Northamptonshire Policy 2, which were based on the figure of 30,000, should also be quashed.
17. Mr Brown submitted that the court should exercise its discretion under section 113(7) not to quash any part of the Strategy. He acknowledged that the discretion was one that should be exercised sparingly, but submitted, in summary, that quashing those parts of the policies in the Strategy, which set out the numbers of dwellings which must be provided in Northampton between 2001 and 2021, would leave a policy vacuum which could not be quickly filled. (It is common ground that it would be necessary to start the statutory process of replacing the quashed parts of the Strategy from the beginning). The resulting uncertainty would not be in the interests of good planning for the sub-region as a whole or even in the claimant's interests. He put his submissions under two interlinked heads; firstly, the extent of the prejudice that would be suffered by the claimant, and, secondly, the extent to which that prejudice might be reduced by the adoption of measures other than quashing the offending parts of the policy.
18. As to the first of those considerations, he pointed out that the Panel had not thought it appropriate to link the figure of 31,500 to any particular growth location. The Panel had recommended the removal of all references to growth locations in the SRS. In the Strategy published in March 2005 the references in the text (in Northamptonshire Policy 2), to growth locations were removed but the spatial diagram had arrows showing "possible direction of growth". Given that there was no longer any linkage in the Strategy between the housing figures and any particular site, Mr Brown submitted that it would be open to the claimant to argue that its site should contribute to the 30,000 dwellings required within the NIA. 95 per cent of a loaf was better than none. If there was no figure in the Strategy for the numbers of dwellings to be provided in the NIA, then the claimant would be in no better position to persuade a recalcitrant Daventry District Council to allocate the site for housing in the LDDs.
19. So far as issue 2 was concerned, the defendant accepted that if the policies in the Strategy were not to be quashed, it would be necessary for him to issue a statement acknowledging his error and making it plain that he had intended to accept the Panel's recommendation but had simply misunderstood it. The possibility of such a statement was considered by Ouseley J in South Northamptonshire District Council v Northampton County Council [2001] EWHC Admin, 1143, at paragraph 91.
20. A Draft Statement, which had received ministerial approval, was exhibited to a witness statement dated 13th January 2006 of Ms Sarris, the senior planning officer for Northamptonshire within GOEM ("the statement"). It is helpful to set the statement out in full so as to place it on the record:

"This Statement is being issued in consequence of the proceedings in Ensign Group Limited v First Secretary of State (CO/2654/2005), in which the Ensign Group Limited seeks an order for the quashing of the Milton Keynes and South Midlands Sub-Regional Strategy ('the Strategy'), pursuant to s.113(3) of the Planning and Compulsory Purchase Act 2004. Although addressed specifically to Ensign and to the planning authorities concerned with the Strategy, this statement is intended as a public statement of the First Secretary of State's position in relation to those proceedings and to the Strategy itself.

In the Consultation Draft of the Strategy, Northamptonshire Policy 2 had made a specific allocation of 1500 dwellings for the Daventry District part of the Northampton Implementation Area (NIA) in the period 2001 to 2011. This figure was reflected in the annual average housing rates set out in Northamptonshire Policy 3. When the First Secretary of State published the Strategy on 17th March this year, he made a number of changes to the housing numbers proposed for Daventry. The key change removed the 1500 dwellings allocated to Daventry as part of the NIA from the provision for that Implementation Area.

Although there was initially a relationship between the allocation of Ensign's site at Buckton Fields/Whitehills in the Daventry Local Plan and the provision within the Consultation Draft of the Strategy for 1500 of the dwellings proposed within the NIA to be located within Daventry District, this direct relationship was not carried through into the published Strategy. The First Secretary of State accepted the Panel's conclusion at paragraph 5.10 of their Report that it would not be appropriate to approve or disapprove particular sites, and that

'In preparing LDDs all the available options for expansion of the urban area will need to be considered positively and open-mindedly without reference to the arbitrary physical limits of Northampton's administrative area which will have little relevance to important planning factors such as topography, landscape and transport'.

Consequently, the decision by the First Secretary of State to remove the 1500 dwellings which was specifically allocated to Daventry as part of the overall NIA figure was not based on any assumptions about the development of the site at Buckton Fields/Whitehills.

This decision was based heavily on paragraph 5.28 of the Panel Report following the Public Examination into the draft Strategy. In particular, paragraph 5.28 of the Report suggested that the 1500 houses should be 'removed from Northamptonshire Policy 2 and regarded as related to the non-NIA provision for Daventry'. The Panel report was interpreted by the First Secretary of State as meaning that the 1500 dwellings should be removed from the NIA altogether. It was recognised that this interpretation was inconsistent with the figures recommended by the Panel for inclusion in the NIA. However, it was concluded at the time that this was an arithmetical error on the part of the Panel, which the proposed changes sought to correct.

These amendments to the Strategy were first published as Proposed Changes in October 2004. The Panel was consulted upon them, but did not comment. The First Secretary of State therefore concluded that his proposed changes were in accordance with the Panel's intentions.

Following publication of the Strategy, an application was made by Ensign Group Ltd for an order quashing the Strategy, or those parts of it which were affected by the changes outlined above. In essence, Ensign contended that the First Secretary of State had fundamentally misunderstood the Panel Report and, in consequence, had erroneously and unlawfully removed the 1500 dwellings from the NIA. On considering Ensign's application, the First Secretary of State contacted the Panel to seek clarification of its true intentions. By letter dated 22 July 2005 the Panel Chairman indicated that Ensign was correct, and that the interpretation which had been adopted by the First Secretary of State when publishing the Strategy did not in fact accord with the Panel's intentions.

The First Secretary of State therefore now accepts that the Panel's intention was as follows:

* At page 10 of the Strategy, that Figure 1 (the Spatial Diagram) should read 31,500 dwellings for Northampton.

* At page 12, within Strategic Policy 1: the Spatial Framework, that the Northampton figure should read 31,500 and the MKSM Total growth should read 171,300.

* At page 35, within Northamptonshire Policy 1: The Spatial Framework, that the figures for Northampton should read as follows: 1200 (2001-2006); 1600 (2006-2011) and total 31,500, and that the totals at the bottom should therefore read 4295 for 2001-2006, 5075 for 2006-2011 and total 101,000 (2001-2021)

* At page 36, within Northamptonshire Policy 2: Northampton Implementation Area, the figures should read as follows: 6000 (Total 2001-2006); 31,500 (Total 2001-2021); 1200 (2001-2006 Average annual rate); 1600 (2006-2011 Annual Average Rate) and 1575 (Annual Average Rate 2001-2021).

The First Secretary of State recognises that this statement can neither form part of the development plan, nor can it formally amend the Strategy, and that the Strategy remains the development plan for the purposes of the s.38 Planning and Compulsory Purchase Act 2004. However, it has at all times been the First Secretary of State's position that the Panel's recommendations in relation to the NIA represent the most appropriate basis for the preparation of local development documents by the relevant planning authorities. It was not the First Secretary of State's intention to change the housing numbers in the NIA in a way which did not accord with the Panel's intention.

This statement represents the most up-to-date expression of the First Secretary of State's intent in relation to housing provision in Northampton and Daventry, and the First Secretary of State intends that it should be regarded as a material consideration to which appropriate weight should be attached in the interpretation and application of the development plan. It is also advice contained in guidance for the purposes of section 19(2) of the Planning and Compulsory Purchase Act 2004 to which all local planning authorities should have regard when preparing their local development documents."

The statement was in draft because the defendant was prepared to consider suggested amendments. Mr Brown submitted that the statement would sufficiently protect the claimant's position and overcome any possible prejudice as a result of not quashing the policies in the Strategy, and would also serve the necessary purpose of setting the record straight in some form of public document.

Conclusions

21. The defendant's submission that 95 per cent of a loaf is better than none is superficially attractive, but in my view it takes insufficient account of two factors, (a) the particular circumstances of the site, and (b) the legislative framework and, in particular, section 24(1) of the Act. Taking those two factors in turn, as to (a), Daventry District Council had made representations to the Panel that the site was no longer needed and that the 1500 "committed" dwellings on the site would be better accommodated at Daventry. The Panel increased Daventry's provision by 1500. The reduction of the NIA figure by 1500 dwellings from 31,500 to 30,000 would, if uncorrected, enable Daventry to argue that its wish had been granted by the Strategy, and the 1500 dwellings on the site had been transferred to Daventry. It is clear that this was not the Panel's intention, even though they did not think it appropriate to comment on the particular locations for growth within the NIA. Daventry's 1500 dwellings were to be in addition to the 31,500 dwellings that the Panel was proposing for the NIA. (See the note to Policy Northants 1). While it is true that the claimant could argue that the site should contribute towards the dwellings to be provided in the NIA through the LDD process, whether the number to be provided is 30,000 or 31,500, if the figure was taken as being the former rather than the latter, the district councils responsible for the NIA would not be required to find an alternative location or locations for 1500 dwellings or to argue that all or part of the 1500 dwellings should be provided elsewhere within the NIA.
22. Turning to factor (b), section 19 of the Act provides:

"(1) Local development documents must be prepared in accordance with the local development scheme.

(2) In preparing a local development document the local planning authority must have regard to -

(a) national policies and advice contained in guidance issued by the Secretary of State;

(b) the RSS for the region in which the area of the authority is situated, if the area is outside Greater London."

Pausing there, this would enable the defendant to issue the statement as guidance under paragraph (a) in subsection (2), and then the relative weight to be accorded to such guidance and ,(under paragraph (b)), to those parts of the Strategy which would not have been quashed, would be a matter for the local planning authorities responsible for preparing the LDDs for the NIA. However, section 19 does not stand alone. Section 24 of the Act deals with conformity between regional strategy and local development documents. So far as material section 24 provides:

"(1) The local development documents must be in general conformity with -

(a) the RSS (if the area of the local planning authority is in a region other than London).

(2) A local planning authority whose area is in a region other than London -

(a) must request the opinion in writing of the RPB [Regional Planning Board] as to the general conformity of the development plan document with the RSS.

(3) Not later than the end of the period prescribed for the purposes of this section the RPB must send its opinion to -

(a) the Secretary of State;

(b) the local planning authority.

(6) If in the opinion of the RPB a document is not in general conformity with the RSS the RPB must be taken to have made representations seeking a change to the document."

Moreover, section 20(1) requires local planning authorities to "submit every development plan document to the Secretary of State for independent examination." Subsection (5) explains the purpose of such an examination:

"The purpose of an independent examination is to determine in respect of the development plan document -

(a) whether it satisfies the requirements of sections 10 and 24(1);

(b) whether it is sound."

23. While I appreciate that an addition of 1500 dwellings to the total of 99,500 for Northamptonshire might well be regarded as being in "general conformity with the Strategy", it is at least arguable (to put it no higher) that it would not be in "general conformity" with the Strategy if the Strategy was viewed from the perspective of those policies dealing with the NIA. The local planning authorities responsible for preparing the LDDs covering the NIA would be faced with a dilemma. Should they prepare the LDDs on the basis of the 30,000 figure in the Strategy or the 31,500 figure in the statement? I accept Mr Purchas's submission that such a conflict would be undesirable, not merely from the claimant's point of view, but also from the point of view of the public's interest in having clear, accurate statements of planning policy at all levels in the development plan hierarchy.
24. I further accept his submission that the potential for conflict between the Strategy (if the policies were left unquashed) and the statement, is best resolved by quashing the admittedly erroneous figures in the Strategy. This will leave a policy gap and will therefore result in undesirable uncertainty, but the defendant has power to fill the gap with a Statement issued as guidance under section 19(2)(a), which will then resolve most, if not all, of the uncertainty.
25. In summary, it is better for all concerned that admittedly erroneous figures in an RSS should be quashed and the resulting policy gap filled, if the defendant considers it appropriate to do so pending the adoption of replacement policies, by guidance issued under section 19(2(a), than for there to be a potential conflict between the local planning authority's duty under section 24(1) and its duty to have regard to the statement as a material consideration whether or not it is issued as guidance under section 19(2(a). It is most unfortunate that the admitted error in the Strategy cannot be remedied by some form of declaratory relief, but section 113 does not enable the court to grant such relief. The power to quash, in whole or in part, or not to quash, is a blunt instrument, made the more blunt by the fact that a procedural error, such as a failure to give reasons at the end of a lengthy statutory process, which may have been carried out in an impeccable manner throughout all the earlier stages, will result in the policy or policies being quashed, so that the process has to be recommenced from the beginning.
26. The court's power in enforcement notice cases to remit the matter for rehearing and/or redetermination under section 289(5) of the Town and Country Planning Act 1990 could usefully be extended to challenges such as those falling under section 113. It would at least enable the court to ensure that procedural errors were corrected without having to throw the baby out of the bath water.

Decision

27. Sadly, that option is not open to me, and, for the reasons set out above, the proper course is to quash those parts of the Strategy that are listed in the schedule below. Schedule

(i) Page 10, the figure of 30,000 for Northampton.

(ii) Page 12, Strategic Policy 1, the figure of 30,000 for Northampton and the total figure of 169,800.

(iii) Page 35, Northamptonshire Policy 1, all figures against Northampton, and the total figures. The asterisk against Northampton is not deleted.

(iv) Page 36, Northamptonshire Policy 2, second paragraph beginning 'Together these LDDs' to the end of the table.

28. MR PURCHAS: I draw attention to one matter. It may have been a slip of the tongue. It may be a point that your Lordship may wish to revisit. It was under your first point on the submissions or the arguments why discretion should not be exercised against relief. You examined the position of the 1500. On my note your Lordship ended up by saying that Daventry would be able to argue that it was not required to find an alternative for the 1500 dwellings. I think it is said that the NIA authorities were not required to find an alternative to the 1500 dwellings. What I have in mind is that the obligation for the 31,500 was on the NIA authority as a whole, which includes Northampton and South Northampton.
29. MR JUSTICE SULLIVAN: I appreciate that it is not all the site within Daventry. It is most of it.
30. MR PURCHAS: There was no obligation to find any land as such in Daventry.
31. MR JUSTICE SULLIVAN: I think I was focusing rather more on Daventry's argument that whatever was allocated on the site to it should not be allocated to it. I will think about that.
32. MR PURCHAS: I am grateful for the order. It was agreed between us that the claimants should have their costs.
33. MR JUSTICE SULLIVAN: It seems to me that it is possible to argue or, to put it in this way, which would meet your concern strictly speaking, that, having said that they could argue that if the figures were uncorrected Daventry would be able to argue that its wish had been granted by the Strategy, one can say that so much of the 1500 dwellings on the site that would be provided on the site within Daventry would have been transferred to Daventry.
34. MR PURCHAS: Yes. The point that I had in mind was that the Panel, the Secretary of State effectively, by accepting the recommendation had removed any location from the NIA. It is only a small point. Costs are agreed. The claimants should have their costs, to be taxed if not agreed.
35. MR BROWN: There is one matter I would raise on your judgment. You made certain observations about what I accepted the Secretary of State would have to do if the Strategy was quashed, both in terms of whether he would need to issue a statement and in terms of what that statement would need to contain. That is the way I have written the note down. When you see the transcript, may I ask you to check the way that it reads? I make it clear what I have said in the course of submissions. If there is any mismatch in the transcript, can you check that what I am saying now corresponds? The Secretary of State would need to say something as a result of your Lordship's quashing today. Secondly, what he may say may well coincide with what the statement is that was issued and is exhibited to the witness statement before the court. I hope I have not committed the Secretary of State to making a statement in that form or in any particular context. I say that because the situation that faces the Secretary of State is different from the one if you had been minded not to quash. There are a number of other considerations, including the relationship of this Strategy to other overlapping strategies which are still in the course of preparation and development. I would not want it to be thought that I had indicated that it would be necessary for the Secretary of State to issue a statement in any particular form.
36. MR JUSTICE SULLIVAN: I understood that was your position. What I said initially is that the defendant accepted that, if the policies in the Strategy were not to be quashed, then it would be necessary for him to issue a statement acknowledging the error. By contrast to that, I formed the view that it was better ----
37. MR BROWN: I may have missed the not. I did not want it to be thought that I had gone outside my instructions.
38. MR JUSTICE SULLIVAN: I said that it is better that admittedly erroneous figures should be quashed and the resulting policy gap filled if the defendant considers it appropriate to do so. The contrast was there. The formal order is application allowed, policies quashed as set out in the schedule, the claimant's costs are to be paid by the defendant to go for detailed assessment if not otherwise agreed.