Councils take on futile fight against national planning changes
Four local authorities have drawn lines in the sand, refusing to amend their constitutions to adopt the latest statutory government guidance that would see officers become the default body for deciding most planning applications across England.
Bolton Council, Tameside Council, Central Bedfordshire Council, and Fenland Council have refused to amend their constitutions to be compliant with the National Scheme of Delegation of Planning Functions, which goes into effect on 1 November.
Their decision will inevitably have consequences, should they continue to refuse to comply.
What is the National Scheme of Delegation of Planning Functions?
In short, the regulation changes mean that more applications will be decided by officers and less by committees.
This will create a national standard for what is, and what is not, taken to council planning committees – whereas previously local authorities could set their own guidelines for what sort of application merited the committee treatment.
Among the types of applications that will revert to officers for decisions will be reserved matters applications for schemes with outline consent for less than 500 homes or 540,000 sq ft of development.
Reserved matters applications for outline consented projects beyond the above criteria could come to committee – provided the council’s nominated officer and the planning committee chair or vice-chair agree on its referral.
However, this is only to be done if these applications raise a significant economic, social, or environmental issue or a planning matter from the local development plan.
Other applications that will receive this treatment include listed building consent and those that the local authority or one of its officers or members has an interest in, among others.
The scheme will also see planning committees reduced in size to a maximum of 13 members.
‘We are the backbone of England’
There is no debate as to whether there will be repercussions for Bolton, Tameside, Central Bedfordshire, and Fenland councils for failing to amend their constitutions.
The government has been clear from the onset – those local authorities that do not adopt with the new regulations from 31 October will open themselves up to judicial review, reversals of planning decisions, and costs.
It is a battle the local authorities cannot hope to win. But for some councillors, the punishment is worth it to send a message to Number 10.
“As Bolton, we should show the country that we are the backbone of England, and we should stand against it,” was the rallying cry of Reform’s Cllr Glen Clarke in Bolton as the local authority voted to refuse to amend its constitution earlier this month.
Meanwhile, Conservative Cllr Nadim Muslim called the national scheme a “terrible assault on local democracy.
“It flies in the face of everything we believe as a democracy,” he told his fellow councillors. “We should send a clear signal to the Prime Minister that we in Bolton will not take it anymore.”
While it is a good soundbite, Colette McCormack, head of planning at law firm Winckworth Sherwood, contends that it is, ultimately, irresponsible.
“They’re saying that they’re protecting democracy, but all they’re going to do is wilfully ignore government guidance and legislation, create uncertainty, clog the courts up with unnecessary planning action, and open themselves up to costs at a time when local authority budgets are being squeezed,” she said.
The law is the law, she contended.
“You can’t pick and choose which parts of government policy you want to follow.”
Not a threat, but a promise
As it stands, Bolton Council, Tameside Council, Central Bedfordshire, and Fenland Council will be sitting ducks come 1 November if they continue to refuse to adopt the government guidance.
There may be no problem for the first few planning committee meetings, but eventually, a problematic planning application will find its way onto a committee agenda. This will be a planning application that should have defaulted to officers.
When that happens, lawyers like McCormick will be ready.
If she saw one of her clients’ projects land on that agenda, she said would be sending a pre-action protocol letter, threatening judicial review. If the application continues to go to committee, she would issue judicial review proceedings on the council for procedural irregularity.
The courts are virtually guaranteed to side with lawyers, as the council would have been in knowing breech of national guidance. At that point, the local authority has opened itself up to have to pay not only its own legal fees, but those of the developer.
It is a potentially costly stand.
And again, the councils have been warned of this. It is the reason that many have opted to voice their opposition loudly but to amend their constitutions to be compliant.
A pragmatic decision
Sunderland Council was among those to begrudgingly adopt the statutory guidance.
“The question before us was not whether we agreed with the government’s planning reforms,” wrote Leader Cllr Chris Eynon, a member of Reform UK, in an open letter.
“I have already made clear that I have serious concerns about the reduction in local democratic discretion within the planning system,” he continued.
“The question before the council was whether Sunderland should have a clear, lawful, and workable framework in place before the new rules take effect.”
He added: “Where Sunderland retains discretion, we will use it properly. Where the law is clear, we have a responsibility to comply with it.”
West Lancashire Council voted similarly.
Leader Cllr David Whittington said: “While we have a legal duty to implement the changes required by the National Planning Scheme of Delegation, councillors have made it clear that they do not support this legislation.”
In Staffordshire, Leader Cllr Martin Murray had harsh words for the government during the two-hour debate over whether to adopt the National Planning Scheme of Delegation.
“What this Labour government wants to do is to centralise planning decisions, stripping local people of their voice – that’s an affront to the very concept of representative democracy and that in my view is fundamentally wrong,” the Conservative Party member argued.
He had back up in Reform Cllr Mike Broom: “Let’s call this what it is. This statutory instrument is this Labour government lawmaking by the back door. It bypasses parliamentary scrutiny and strips power away from local people, the very people who elected us. While I share that frustration, sadly our hands are tied.”
Like Sunderland and West Lancashire, Staffordshire ultimately voted to amend its constitution.
What is next?
Bolton Council’s planning committee will next meet on 29 October – at that point, it will still be compliant with government policy. As of Thursday morning, the only application on this agenda is for permission to build three homes – one that would go officers to decide under the new guidance.
The first planning committee after the guidance goes into place will be on 5 November. The council was contacted for comment.
Over in Tameside, the council is “considering the implications of the full council’s decision and any appropriate next steps,” according to a local authority spokesperson.
“In the meantime, planning applications will continue to be processed and determined in accordance with the council’s existing constitutional arrangements, until the government’s new planning legislation coming into force on 31 October 2026,” they said.
The first planning committee meeting post-guidance will be 11 November.
Central Bedfordshire is due to have its development management committee meet on 18 November.
Fenland has already cancelled its planning committee meeting for November, and will not convene the committee again until 9 December.
Changes to the constitution generally require approval at a full council meeting. So, we will be keeping an eye out to see if extraordinary council meetings make their way to local authority calendars.
In the meantime, it is a waiting game.
Mike Sheridan contributed to this report.
