Government announced on the 1st June 2026 that the National Scheme of Delegation (NSD), will come into effect on 31st October 2026 (a month later than originally suggested at the consultation stage).
Nichola Gooch of Birketts has written a helpful article (1st June 2026) explaining the timeframes and when the changes will take effect as set out below:
- The final draft Regulations have not been published as yet, but MHCLG has stated that the final regulations should be made in July and will then come into force on 31 October 2026.
- The statutory guidance, however, has immediate effect.
Paragraphs 4 of the statutory guidance make clear:
“4. 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, those decisions may be subject to judicial review by anyone aggrieved by the decision. This may lead to the quashing of the decision.”
James Maurici K.C, has today written an insightful article, pointing out the ‘flaws’ with the statutory guidance, in particular paragraph 4 (as set out above) which states when a decision would be subject of a ‘judicial review’.
James Maurici K.C states:
“Leaving aside that this guidance misstates the standing test for judicial review (which is the sufficient interest test and not the person aggrieved test which applies to s. 288 of the TCPA) there is something else that is not right about this. The most common scenario for a member overturn of the recommendation of officers if where officers recommend approval of an application and members instead determine to refuse permission. In that scenario the applicant is the only person adversely affected and they, of course, have an alternative remedy namely an appeal under s. 78 of the TCPA 1990.
Judicial review is a remedy of last resort. Generally judicial review will not be entertained where there is an alternative remedy such as a statutory right of appeal: see e.g. R. (Taylor) v Maidstone BC [2004] EWHC 257 (Admin) per Sullivan J. where the Judge refused to allow a judicial review of a refusal of permission saying that the real issue raised was not “whether there were any procedural irregularities in the decision-making process adopted by the Committee” but “whether planning permission should be granted” and that “[s]ince planning permission has been refused, the claimant will have a full opportunity to explain before an Inspector appointed by the Secretary of State why permission should be granted”. Moreover, the Judge said that the fact that “the Inspector will not in practice address the procedural complaints advanced on behalf of the claimant” was correct “save insofar as defects in the decision-making process may have led the Committee into making an error in its assessment of the planning merits of the proposal” but that did not justify judicial review.
The guidance cannot change this general legal position. So the only situation in which a judicial review for breach of the national scheme would be likely to be entertained is if it should have been determined by officers, and they were planning to refuse, and members instead wrongly determined it themselves and granted it … not sure this is what the guidance had in mind …”
Clare Spiller, Associate Director of Chapman Lily Planning, commented
“Even before the final draft regulations have been published there are questions on whether the government has really thought through the ‘Judicial Review (JR)’ process. James Maurici K.C points out that JR is not the mechanism for considering the planning merits of a scheme which is ultimately, the outcome that any applicant will be wanting. A JR will delay and add unnecessary (hefty) costs to applicants should a local authority not comply with the regulations ahead of the deadline. This isn’t good news for strap cashed local planning authorities either.
Perhaps the JR route is well intended as the ‘carrot and stick’ approach by Government, and it is confident that all Local planning authorities will have their new constitutions in place before 31 October 2026, which are meretriciously followed, that a JR from an applicant is never required.
We will have to watch with interest whether there are any changes. “
