What Will Happen If LPAs Miss The 31 Oct NSD Deadline?

In my 13 June 2026 blog post Delegation Nation I summarised the national scheme of delegation which supposedly takes effect from 31 October 2026. I say “supposedly” because at least three local planning authorities have resolved at full council meetings not to make the changes required to their constitutions so as to bring into effect the NSD in relation to their decision-making. The question on many of our lips is: what are the real implications for decision-making in such authorities after that date?

The Town and Country Planning (Discharge of Local Planning Authority Functions) (England) Regulations 2026 come into force on 31 October 2026. They were made pursuant to section 319ZZC of the Town and Country Planning Act 1990 (NB what absurd section-numbering we now have as a result of 36 years now of non-consolidation of legislative changes. 319ZZC was introduced by the Planning and Infrastructure Act 2025).

Section 319ZZC provides as follows:

1. The Secretary of State may by regulations require a relevant local planning authority to make arrangements under section 101 of the 1972 Act for such relevant planning functions as are prescribed—

1. to be discharged by a committee, sub-committee or officer of the authority;

2. to be discharged by a committee, sub-committee or officer of the authority in prescribed circumstances.

2. The regulations may —

1. prescribe the terms of the arrangements (which may include exceptions) and any permitted variations in those terms;

2. provide for the arrangements to confer a discretion on any person in connection with the delegation of a function.

3. Where arrangements required by the regulations are in force in relation to a relevant planning function, the function may only be exercised in accordance with the arrangements (and section 101(4) of the 1972 Act does not apply).

Section 101(4) of the Local Government Act 1972 allows local authorities to arrange for the discharge of their functions by a committee, sub-committee, or an officer of the authority.

The 2026 Regulations were made pursuant to this section 319ZZC (as well as other sections) of the 1990 Act. Local planning authorities have a statutory duty from 31 October to make arrangements that are consistent with the Regulations. It seems to be obvious that any local planning authority which fails to comply is in breach of statutory duty and therefore susceptible to judicial review, in relation to which the remedies available to the High Court include making a declaration that it is in breach, quashing any resolution to make arrangements which are in breach and/or a mandatory order to secure compliance. Such proceedings could be brought by any party showing a sufficient interest in the issue.

Such proceedings could also be brought by the Secretary of State and I would envisage a real justification for proceeding on an expedited basis. One might hope that the threat of such proceedings might be sufficient in most instances. I can’t see that any of the Secretary of State’s general powers of intervention in local planning authority decision making are particularly well-suited to the specific task of bring individual authorities’ constitutions into line.

I would also note that the relevant local authority’s monitoring officer will be acutely aware of their personal duty to prepare a report under section 5 of the Local Government and Housing Act 1989 if it appears to them that any proposal, decision or omission by the authority, by a committee or sub-committee or by an officer in exercising delegated powers, has given rise to, or is likely to give rise to a contravention of any enactment; a contravention of any rule of law, or maladministration.

There is also statutory guidance to which local planning authorities must have regard in making and operating their arrangements under the Regulations. This guidance raises the spectre that planning decisions taken under arrangements which are not consistent with the Regulations may be susceptible to judicial review:

“For the avoidance of doubt, where local planning authorities do not comply with the Regulations from the date they come into force (31 October 2026) and their planning committees make decisions on applications which must be delegated officers [sic], those decisions may be subject to judicial review by anyone aggrieved by the decision. This may lead to the quashing of the decision.”

I can see that at least in theory this is indeed a risk for developers where a committee (operating under unlawful decision-making arrangements) approves an application which should have been determined, under the new arrangements, by delegated powers. However, I do think the circumstances would have to be unusual for such proceedings ultimately to succeed. Where the committee’s decision is in line with the officer’s recommendation, the outcome would have been highly likely to be the same in any event.

Where an application is refused, as I say in my previous blog post: “If the authority does not agree to re-determine the application (at least before the decision is formally issued), yes it could judicially review the decision but its more effective remedy may simply be to appeal (and in so will have to grapple with the dilemma of potentially being in a position where it is submitting an appeal in relation to an unlawful refusal notice).”

Finally, I do think that we need to be alert to the practical risk to transparency and probity of local planning authorities arriving at “behind the scenes” arrangements where councillors informally influence officer decision making, including through informal meetings to determine their stance on particular proposals. Be aware as well of Regulation 2(2): in relation to decisions delegated to officers “the authority must not make arrangements that limit the officer’s discretion as to how to determine that application”.

The thrust of the NSD is surely to be welcomed by all. Some applications are minor and should never be determined by anyone other than planning officers – “political” issues do not arise; the tramlines for decision-making are to be set in local and national policies. Other applications should only be determined by elected planning committees where they do genuinely, exceptionally, raise “an economic, social or environmental issue of significance to the local area” and/or “a significant planning matter having regard to the development plan and any other material considerations”. The massively important and influential role that local councillors have is in ensuring that there are up to date policies in place that provide the blueprint for day to day officer decision-making. The inevitable risk arising from this new system lies in the inevitability of mission creep wherever a statutory test contains works such as “of significance” or “significant”.

As all this beds down, I am sure we will be seeing some power struggles between MHCLG and some local planning authorities, as well as power struggles internally within some authorities as to where that “of significance”/”significant” dividing line is to be drawn.

Final word of warning: There is much legal speculation in all of the above. If you are a lawyer who has been grappling with these issues and take a different view as to the potential procedural consequences, do let me know! (Oh and thank you to my brand-new Town Legal colleague Bob Pritchard who sparked some of the above thoughts).

Simon Ricketts, 17 October 2026

Personal views, et cetera