Who Decides? The New Politics of Planning Delegation

Amid reports that it could miss its 1.5 million homes target by as much as 40%, the government last week published the final version of its national scheme of delegation for planning functions. Billed as an essential measure to speed up decision-making and deliver greater consistency, the scheme’s finer details are set out in statutory guidance. Local authorities will now have just five months to embed the scheme in their constitutions before the regulations that back the guidance take effect on 31st October. 

There is to be no grace period, as the guidance makes clear: ‘where local planning authorities do not comply with the Regulations from the date they come into force…and their planning committees make decisions on applications which must be delegated [to] officers, those decisions may be subject to judicial review by anyone aggrieved by the decision.’ (para 4).

What’s the detail?

In summary, the national scheme of delegation introduces two categories of planning applications:

1. Applications that must be delegated to officers – Schedule 1

These cannot normally be determined by planning committee. 

Examples include:

• Householder applications
• Minor residential schemes (generally under 10 dwellings)
• Minor commercial development
• Non-material amendments
• Certificates of lawfulness
• Reserved matters applications that relate to a phase of an outline consent of fewer than 500 units or a building or buildings where the floorspace to be created by the development is less than 50,000 square metres

2. Applications that may go to committee – Schedule 2

These applications can either be delegated to officers or referred to committee where justified. Not all applications have to be considered for potential referral to committee, and it will be for local councils to decide how they administer this review process, which would suggest less consistency, not more.

Examples of these applications include:

• Listed building consent applications
• Section 73 variation applications relating to major schemes
• Reserved matters applications that relate to a phase of an outline consent of more than 500 units or a building or buildings where the floorspace to be created by the development is 50,000 square metres or more
• Own interest applications
• Larger or more complex planning applications
• Advertisement consent applications
• Tree Preservation Order consent applications

The guidance establishes a strong presumption that applications should be delegated unless there is a clear reason for committee involvement: ‘Committees should focus on the key proposals that matter to an area, enabling other, often more minor and technical, decisions to be made by planning officers.’ (para 5). 

How will the referral test work?

A committee referral will only occur where both a nominated officer (expected to be the Chief Planning Officer) and nominated member (expected to be the Chair of the Planning Committee) agree that the proposal meets at least one of the statutory criteria:

• Significant economic, social or environmental impacts locally; and/or
• Significant planning matters relating to the development plan or other material considerations. 

How the consideration of cases for referral will operate in practice will be for local planning authorities to decide: ‘Local planning authorities may, through their constitutions, decide which Schedule 2 or own-interest applications need to be considered for referral. The regulations provide for the option for Schedule 2 applications to be considered for committee against the gateway test but do not require all schedule 2 applications to be considered – they will otherwise be delegated to officer.’ (para 13)

The referral stage is therefore likely to become a key political battleground, particularly as ward member call-ins disappear under the new rules. That creates fresh scope for dispute – and potentially judicial review – over which applications reach committee. The selection of planning committee chair will have an added dimension, with members potentially searching for someone who can ‘stand up’ to officers. 

Back to the consistency point: Planning noted this week that while English councils on average already delegate more than 96% of decisions to officers, some delegate all and others less than three quarters. 

When asked as part of SEC Newgate’s annual survey of planning committee members what impact they thought the national scheme of delegation would have on housing delivery, less than one in three councillors felt it would be positive. Just as well then that the regulations now include a duty on the Secretary of State to review, within the next two years, how this scheme is operating.