Planning applications during COVID-19: avoid constitutional pitfalls

Local authorities are looking at ways to avoid delaying planning applications during the COVID-19 pandemic.

To remove the need for planning committee approval, some local authorities have sought to amend their schemes of delegation to enable a greater range of planning application decisions to be taken by council officers.

Stay alert when delegating

Local authorities looking to extend delegated decision-making during COVID-19 (and beyond) need to exercise care and ensure that that any amendments to their schemes of delegation are lawfully made, in compliance with their constitution.

Local planning authorities should carefully check their constitutions and existing schemes of delegation to confirm who has the power to delegate decision-making powers. They need to consider whether the planning committee can do this itself, or whether such amendments can only be made by the full Council.

Even where decision-making power has been correctly delegated in accordance with the constitution, care should also be taken to ensure that only the correct authorised officer makes the decision on a planning application. Unless the scheme of delegation expressly grants authority to the officer to sub-delegate further, any sub-delegation without such authority would be acting beyond their legal power. This would mean that a decision on a planning application by an unauthorised officer would be unlawful.

Unlawful planning application decisions

During the COVID-19 outbreak, we have encountered one example where a Council’s planning committee incorrectly sought to delegate its decision-making power to the Head of Planning, where only the full Council had such power. The Head of Planning in turn sought to sub-delegate this function to lower officers where such power was absent in the purported delegation.

The resulting planning permission was challenged, meaning that it needed to be quashed and the planning application will be reconsidered once the Council has correctly delegated decision-making powers to officers. This will result in additional workload and delays in the Council’s planning system.

Check constitutions

Local authorities should therefore check their individual constitutions and schemes of delegations before seeking to extend decision-making powers. They should also consider whether a power of further sub-delegation could be expressly granted to that officer in the event that they become unavailable, or to help spread the workload around the planning department.