David Smith, Director and Head of Urban Living at DPP, recently spoke to Insider Media about the National Scheme of Delegation, which comes into force in October. He discusses its implications for planning applications and outlines what developers need to do now to prepare for the changes to the planning process.
Just as local planning authorities have rearranged their planning committees following the recent local elections, they need to contend with another change that’s coming down the track: The National Scheme of Delegation.
The scheme standardises the approach to deciding whether a planning application gets determined at planning committee by councillors or under delegated powers by planning officers. This can impact the success of an application and the time it takes to determine an outcome.
These changes will take effect on the 31st of October. This article looks at whether the change will increase planning risk, speed up the planning process and how developers should prepare for this change
Why is the system changing?
The government’s stated aim for the scheme is to ensure that there ‘is greater clarity and consistency about the role of planning committees in decision making’. There is a clear preference and presumption that the role of planning committees in the decision-making process will be reduced. The government’s evidence base for this new scheme refers to inconsistent and unsound decision-making on applications. For example, committee decisions which contradicted officers’ recommendations and were subsequently overturned on appeal.
What are the changes?
Currently, the approach to delegation varies across councils. The national scheme will standardise the process and introduce Schedule 1 and Schedule 2 applications.
Schedule 1 applications must be determined by officers and include, for example, householder applications and minor developments. Schedule 2 applications will be delegated to officers unless the nominated officer (for example, the chief planning officer) and nominated member (like the chair of the planning committee) agree the application should be referred to a planning committee. It also must meet one of these criteria:
- the application raises an economic, social or environmental issue of significance to the local area
- it raises a significant planning matter in regard to the development plan
This is referred to as the ‘gateway test’.
The government’s guidance presumes that decisions on Schedule 2 applications should be delegated to officers and should only be referred to committee in exceptional cases.
However, not all Schedule 2 applications need to be subject to the gateway test. Each local planning authority will need to put their own arrangements in place for referring cases to the nominated member and how this will operate in practice. This is where applicants will need to be aware of how each council has adapted their constitution to the new process.
What are the potential pitfalls?
The judgement on whether criteria one or two has been triggered in the gateway test may be quite subjective in certain cases. The government’s guidance provides some very limited examples of how to interpret these criteria. Helpfully, where the application broadly complies with the relevant policies in a local plan, as well as those in the National Planning Policy Framework, it is unlikely to raise a ‘significant planning matter’.
There will undoubtedly be potential for a judicial review claim based on the outcome of the gateway test in certain cases and there is likely to be case law in this area in future. The need for each council to have a very clear and transparent referral system in place is paramount.
Will this speed up the process?
Determining an application at committee will usually prolong things as officers need to finalise their report to committee one or two weeks in advance. However, some councils, such as Leeds, already determine most applications under delegated powers, so the impact on speed could vary by council.
Complying with this process could unintentionally slow down the system as the referral process may require additional officer resource. Also, officers’ delegated reports will need to withstand scrutiny from potential challenges so more time and resource will be needed. It may be that councillors increasingly submit written representations on applications to have their views considered on a proposal.
How to prepare?
In my view, the key to managing this change is to gain an understanding of how each council operates their referral process in the coming months. It will also be important to liaise closely with the case officer throughout the determination period to ensure decisions on applications are robust. Planning statements or cover letters submitted with the application could explain whether either of the gateway test criteria are met depending on the applicant’s preferred route and likelihood of success under each one.
In conclusion
It’s likely that the National Scheme of Delegation will cause some initial disruption for developers. It could lead to bottlenecks in the referral process and leave room for subjectivity. But, by learning councils’ referral processes, and providing strong case officer communication and smartly composed planning statements, developers will be able to mitigate the impact of the scheme after it’s launched.
The original article can be viewed on Insider Media.
