Agenda item

This report seeks approval to amend the Council’s Constitution to reflect the national scheme of delegation for local planning authority functions introduced by the Planning and Infrastructure Act 2025 and the Town and Country Planning (Discharge of Local Planning Authority Functions) (England) Regulations 2026, which come into force on 31 October 2026.

The Regulations significantly restrict the circumstances in which planning applications may be referred to Planning Committee and replace existing local referral mechanisms, including Ward Member call-ins and objection-based triggers. The report explains the distinction between Schedule 1 applications, which must be determined by officers, and Schedule 2 applications, which are presumed to be delegated unless the statutory gateway test is met and the nominated officer and nominated member agree referral to committee.

The recommended approach is to amend the Constitution to comply with the national scheme, establish nominated officer and nominated member arrangements, retain appropriate transparency through decision records and reporting, and provide clear information for Members and the public.

While the Council has limited discretion over the national requirements, the proposed amendments are intended to ensure lawful implementation, reduce the risk of legal challenge, and maintain effective, transparent and accountable planning decision-making.

The Chair and Head of Democratic Services presented a report, a copy of which had been circulated to each Member and a copy of which appears as Appendix 'A' to these Minutes in the Minute Book.  The Director of Planning and Transport and the Head of Planning Operations joined the meeting to answer any technical questions the Committee had.

 

The report sought approval to amend the Council’s Constitution to reflect the national scheme of delegation for local planning authority functions introduced by the Planning and Infrastructure Act 2025 and the Town and Country Planning (Discharge of Local Planning Authority Functions) (England) Regulations 2026, which come into force on 31 October 2026.

 

The Regulations significantly restricted the circumstances in which planning applications could be referred to Planning Committee and replaced existing local referral mechanisms, including Ward Member call-ins and objection-based triggers. The report explained the distinction between Schedule 1 applications, which must be determined by officers, and Schedule 2 applications, which were presumed to be delegated unless the statutory gateway test was met and the nominated officer and nominated member agreed referral to committee.

 

The recommended approach was to amend the Constitution to comply with the national scheme, establish nominated officer and nominated member arrangements, retain appropriate transparency through decision records and reporting, and provide clear information for Members and the public.

While the Council had limited discretion over the national requirements, the proposed amendments were intended to ensure lawful implementation, reduce the risk of legal challenge, and maintain effective, transparent and accountable planning decision-making.

 

The Committee discussed the report, including:

 

•         The proposed changes to the planning scheme of delegation arising from new Government regulations and stressed that the changes were being implemented in response to national legislation rather than local choice. 

•         The Chair confirmed that whilst the Council had no choice with regards to implementing the changes, it did have some discretion over how, which was what she wanted the Committee to focus on during this item.

•         Concerns were raised regarding the reduction in opportunities for elected member involvement in planning decisions, particularly for Schedule 1 applications which would no longer be eligible for committee determination. 

•         In response to a query, Officers clarified that applications for 150+ homes could still be considered by Planning Committee, but any proposed refusal must first be referred to the Secretary of State. 

•         In response to a query, Officers clarified that Schedule 1 and Schedule 2 classifications were based on established national planning categories, which were clearly defined. 

•         The Committee was advised that Schedule 2 applications may be referred to committee where they met the required gateway tests relating to significant economic, social or environmental impacts and whilst Officers noted that this did give the nominated Officer and Member some subjectivity in interpretation, it was confirmed that the applications that currently went to Committee would likely continue under the new legislation. 

•         There was a significant discussion focused on transparency and decision-making by the nominated officer and nominated member, and the need for robust decision records where applications were not referred to committee. 

•         Members expressed concerns regarding council-owned land and own-interest applications, particularly where commercial considerations may be involved, and the importance of maintaining public confidence in the process and how that could be achieved.

•         Officers confirmed that regulations required decisions on referrals for own-interest applications to remain with the nominated officer and nominated member and that councils could not prescribe referral outcomes in conflict with the regulations.  The Chair reassured the Committee that there would still be an opportunity for members to make a referral to the nominated officer and member setting out any reasons, including commercial, why they think an application should go to Committee, but ultimately it was their decision.

•         In response to a concern, Officers confirmed they could create an aide memoir of the reasons which would be considered before making a decision whether or not to refer to Planning Committee, however it was also highlighted that any decision not to refer would be documented with an Officer Decision Record.

•         Officers advised that failure to comply with the national scheme of delegation could expose the Council to judicial review and the quashing of decisions. 

•         A Member, who was not on the Committee, was invited to address the Committee and shared her concerns and experiences of a recent planning application, however acknowledged that the discussion over the evening had been focused on trying to get the best out of the regulations for everyone impacted.

•         Members discussed the importance of public information, transparency, member engagement and support for residents regarding the revised arrangements. 

•         Discussions took place on material planning considerations that could be suggested by Members or residents to help address the impact of applications not referred to Planning Committee, and how information about such considerations could be communicated to the public in a clearer and more accessible way.

•         The Committee supported the creation of public guidance to explain residents’ ability to suggest planning conditions and how representations could influence planning outcomes where applications cannot be referred to committee. 

•         In response to a query, the Committee was advised of processes and procedures which were not changing and those were detailed in Paragraph 20 of the report.

•         The Chair highlighted that consideration could be given in the future to the number of nominated members required to deal with the workload and the potential need to reduce the number of Planning Committees currently scheduled, however felt that consideration could be given to these items during an anticipated review.

•         There was some discussion regarding whether the Constitution Review Working Group was the correct forum for consideration of information provided and the review as detailed in Paragraphs (e) and (f) of the Recommendation, with a preferred option discussed of a cross-party task and finish group of between five and seven members with Planning Committee expertise to commence within the first six months of operation.

•         It was discussed again that applications involving council-owned land or a commercial interest could not automatically be referred to Planning Committee and must follow the gateway process and Members expressed a preference for such applications to be referred to Planning Committee where appropriate.  It was suggested that the issue could be considered as part of the planned review, and it was proposed for this to be set out as a consideration of the review.

 

The following recommended additions and amendments were considered throughout the item discussion but have been set out below for ease of reference.

 

It was Proposed, Seconded and agreed by the Committee that the following section of Part 6, Schedule 3, Paragraph 4.12 be clarified to include the relevant constitutional paragraphs which define the qualifying criteria:

 

4.12. Any application submitted by the Council or involving land forming part of the red line area of a planning application which is owned by the Council shall be determined by the Planning Committee, subject to the qualifying criteria set out in paragraphs 2.15 to 2.17 to Part 3A of the scheme of delegation.

 

It was Proposed, Seconded and agreed by the Committee that under Part 3A of the Constitution, Responsibility for Functions, the sub-paragraph to 2.17 should be amended to read:

 

“Such own-interest applications must be considered by the nominated member and nominated officer for referral to and determination by Committee…”

 

It was Proposed, Seconded and agreed by the Committee to add to Recommendation (d) as set out on the report:

 

(d) officers be authorised to prepare and publish appropriate guidance and communications for Members, officers and the public explaining the revised arrangements for planning referrals and decision-making under the national scheme of delegation, to include guidance and information on material planning considerations, planning conditions and the ability for members of the public to propose planning conditions.

 

It was Proposed, Seconded and agreed by the Committee to amend Recommendations (e) and (f) as follows:

 

(e) officers monitor the operation of the revised arrangements, including the volume and nature of referral requests, decision records, committee referrals, and any associated operational or resource impacts, with specific consideration to be given to own interest, applications and commercial interests, to inform the review by a Cross-Party Task and Finish Group of between five to seven members with Planning Committee expertise;

(f)   the Cross-Party Task and Finish Group undertake a review of the arrangements within the first six months of operation and recommend any changes, if any, that may be considered necessary;

 

Post meeting note – due to the removal of (d) as printed to a resolution of the Committee, instead of a Recommendation to Full Council, the above items were now Recommendations (d) and (e) below.

 

It was Proposed, Seconded and agreed by the Committee to request that the Director of Planning and Transport:

 

•         Review the operational feasibility of reintroducing a weekly planning applications list for members, including direct links to applications.

 

•         Produce Monthly reports to Planning Committees setting out Schedule 2 referral decisions made by the nominated member and nominated officer.

 

•         Arrange an all-member briefing on the new arrangements, including advocacy routes for Schedule 1 and Schedule 2 applications and the potential use of planning conditions.

 

The Head of Democratic Services advised that Recommendation (d) as printed in the Report should be resolved by the Committee.

 

RECOMMENDED that Full Council agree:

 

(a)    in relation to the new national scheme of delegation of planning functions, the proposed amendments to Parts 2, 3, 4 and 6 of the Constitution, as set out in Appendix 3 to this report be approved and take effect from 31 October 2026, subject to the following amendments:

(i) Part 6, Schedule 3, paragraph 4.12 being amended to read “4.12. Any application submitted by the Council or involving land forming part of the red line area of a planning application which is owned by the Council shall be determined by the Planning Committee, subject to the qualifying criteria set out in paragraphs 2.15 to 2.17 to Part 3A of the scheme of delegation.”;

(ii) Part 3A, sub-paragraph to 2.17 being amended to read “Such own-interest applications must be considered by the nominated member and nominated officer for referral to and determination by Committee…”;

(b)    the Chief Operations Officer be delegated authority to appoint and amend any appointment of nominated officer(s) under the 2026 Regulations;

(c)    the Chairs and Vice-Chairs of the two respective committees be appointed as the nominated members and substitute members from 31 October 2026 but the respective planning committees be delegated authority to appoint and amend the appointment of the nominated member(s) under the 2026 Regulations;

(d)   Officers monitor the operation of the revised arrangements, including the volume and nature of referral requests, decision records, committee referrals, and any associated operational or resource impacts, with specific consideration to be given to own interest, applications and commercial interests, to inform the review by a Cross-Party Task and Finish Group of between five to seven members with Planning Committee expertise;

(e) the Cross-Party Task and Finish Group undertake a review of the arrangements within the first six months of operation and recommend changes, if any, that may be considered necessary;

(f)  any necessary and consequential technical and formatting related updates and revisions to the Constitution be made by the Monitoring Officer in accordance with the powers delegated.

 

RESOLVED that the Director of Planning and Transport:

 

a)     be authorised to prepare and publish appropriate guidance and communications for Members, officers and the public explaining the revised arrangements for planning referrals and decision-making under the national scheme of delegation, to include guidance and information on material planning considerations, planning conditions and the ability for members of the public to propose planning conditions;

b)     review the operational feasibility of reintroducing a weekly planning applications list for members, including direct links to applications;

c)     Produce Monthly reports to Planning Committees setting out Schedule 2 referral decisions made by the nominated member and nominated officer;

d)     arrange an all-member briefing on the new arrangements, including advocacy routes for Schedule 1 and Schedule 2 applications and the potential use of planning conditions.

 

Voting: For - unanimous

 

Cllr Phipps left meeting at 20:20.

 

The meeting adjourned following this item and reconvened at 20:27.