New planning law orders ministers to write rules prioritising building on previously developed land. The duty has sat unmet since Royal Assent six months ago, and no date in the Act forces them to act.
Estimated reading time: 6 minutes
In short. Commencement regulations made on 3 November 2026 bring section 39 of the English Devolution and Community Empowerment Act 2026 fully into force from today [1]. Section 39 inserts a new duty into planning law: "the Secretary of State must make regulations" prescribing the desirability of prioritising development on previously developed land, as a matter strategic planning authorities will have to weigh when drafting their spatial development strategies [2]. That duty is not new today. It became legally live on Royal Assent, 29 April 2026, under the Act's own rule that enabling powers commence immediately [5] [6]. A legislation.gov.uk search for any 2026 statutory instrument on the subject returns nothing: the regulations required by the Act do not exist, over six months after the duty to write them began, and nothing in the Act sets a date by which they must [7]. Even once made, the resulting duty on authorities is only to "have regard to" prioritisation, the same soft test the Act already applies to health effects and consistency with national policy [3], for a planning document that barely exists yet: the government's own consultation on which areas will produce one closed in March, and its outcome has not been published seven months later [9]. Two documented mistakes: four stars.
The commencement order itself is routine machinery, the fifth made under each of two Acts in a year of near-monthly instalments [1]. It switches on, among other things, the remainder of section 58 of the Planning and Infrastructure Act 2025 [8], which requires strategic planning authorities (combined authorities, combined county authorities and upper-tier councils) to prepare spatial development strategies, and section 39 of the English Devolution and Community Empowerment Act 2026, which bolts a brownfield duty onto that process [1]. Both Acts have been examined by this site before on different ground: the Planning and Infrastructure Act's Nature Restoration Levy provisions in September, and the English Devolution Act's audit-dependent accountability framework in October [10] [11].
The claims, tested
| The government's own words | What the Act's own text and record show | Verdict |
|---|---|---|
| Section 39 "amends section 12G of the 2004 Act" so that "the Secretary of State must make regulations prescribing the desirability of prioritising development on land that has been previously developed." Once made, those regulations become "a matter to which a strategic planning authority must have regard." [4] | Section 12G(2A) is not a power the Secretary of State may use; it is a duty: "The Secretary of State must make regulations." It took legal effect on Royal Assent, 29 April 2026, because the Act commences any provision that "confers power to make secondary legislation" on the day it is passed [5] [3]. A title search of every UK statutory instrument on legislation.gov.uk for "spatial development" returns five results, the newest from 2020 [7]. | A "must" duty that has produced nothing for six-plus months, with no statutory deadline attached, is indistinguishable in practice from a duty that does not exist |
| The same explanatory note frames the eventual regulations as requiring authorities to prioritise brownfield land when they "prepare a draft spatial development strategy" [4] | Section 12G(2) lists what "have regard to" covers: the authority's own relevant strategies, effects on health and health inequalities, sustainable development, and consistency with national policy. The prescribed brownfield matter joins that list under subsection (2)(d), carrying no more legal weight than any of it [3] | "Prioritising" is the explanatory note's word. "Have regard to" is the Act's. They are not the same obligation |
A duty six months overdue, with nothing to enforce it
Royal Assent for the English Devolution and Community Empowerment Act 2026 fell on 29 April 2026 [6]. Section 108(1)(c) of the Act, its own commencement clause, brings any provision into force immediately, on the day of passing, "so far as it confers power to make secondary legislation or is otherwise necessary for enabling the exercise of such a power" [5]. Legislation.gov.uk's own amendment note on section 12G confirms the mechanism worked exactly as designed: subsection (2A) was "inserted (29.4.2026 for specified purposes)" [3]. From that date, "the Secretary of State must make regulations" prescribing the desirability of prioritising previously developed land, not as an aspiration but as a statutory instruction.
Today's order removes any remaining doubt about whether that duty fully applies, commencing section 39 "so far as not already commenced" [1]. It does not create the duty; the duty has existed, unperformed, since the spring. A search of every UK statutory instrument with "spatial development" in its title turns up nothing from this year, nothing on prioritising previously developed land, nothing at all since 2020 [7]. The obligation is real. So is its absence of output.
What the Act does not do is set a deadline. Elsewhere in the same instrument, the government is capable of naming exact dates: today's order commences the remainder of section 58 of the Planning and Infrastructure Act 2025 specifically on 26 November 2026, three weeks from now, to the day [1]. No equivalent date exists anywhere in the Act for when the Secretary of State's brownfield regulations must appear. A "must" with a date is a commitment. A "must" without one is a direction of travel.
A weaker standard than the word "prioritise" suggests
Section 12G of the Planning and Compulsory Purchase Act 2004 sets out what a strategic planning authority must do when drafting its spatial development strategy. Subsection (1) is a hard duty: the authority "must prepare a draft." Subsection (2) is softer: in doing so, it "must have regard to" four things, including "the effect which the proposed spatial development strategy would have on" health, health inequalities and sustainable development, and "the need to ensure that the strategy is consistent with current national policies" [3]. Subsection (2A), inserted by section 39, does not create a fifth category with teeth. It obliges the Secretary of State to prescribe the brownfield matter as one more thing falling under subsection (2)(d), "any other prescribed matters" [3]. Once written, it will sit exactly where health inequalities and national policy consistency already sit: a factor to be weighed, with nothing in the text requiring it to outweigh anything else, and no mechanism for a developer, a council or a court to insist that it did.
The document this duty is meant to shape is itself barely under construction. Spatial development strategies are new; most of the country does not yet know which body will be responsible for writing one. The government's own consultation on the proposed geographical areas closed on 26 March 2026. Its outcome page, unchanged since, still reads: "We are analysing your feedback. Visit this page again soon to download the outcome to this public feedback" [9]. A duty to weigh brownfield land, once the regulations exist, applies only when an authority drafts a strategy that, for most of England, nobody has yet been told to write.
Two documented mistakes, four stars. (1) The government's own explanatory material describes the Secretary of State's brownfield regulations as a forthcoming step, without disclosing that the duty to write them has been legally mandatory, and unmet, since Royal Assent on 29 April 2026, with no statutory deadline anywhere in the Act. (2) The same material uses "prioritise" to describe the eventual duty on strategic planning authorities, without disclosing that the Act's own text only requires them to "have regard to" the matter, the same weak standard applied to health inequalities, for a type of planning document that does not yet exist anywhere in England.
Credit where due
Section 108(1)(c)'s immediate commencement of enabling powers is not a trick; it is standard legislative drafting, applied uniformly across dozens of other provisions in the same Act so that regulation-making can start the moment Royal Assent is given, rather than waiting for a separate commencement order [5]. The explanatory notes do not claim the regulations already exist; they describe the effect as something that happens "once those regulations are made" [4], which is accurate as far as it goes. And the wider devolution architecture this duty depends on is visibly being built, however slowly: a consultation on spatial development strategy areas has been run, even if its outcome is overdue [9].
Verdict
Four stars, from two documented mistakes. A statutory "must" with no deadline is not a broken promise; nothing has technically been missed. But a reader told that ministers will prioritise brownfield development has no way of knowing, from the government's own account, that the duty to write the rules has already sat unmet for six months, or that the rules, when they arrive, will bind nobody to prefer previously developed land over anything else. Today's commencement order completes the legal machinery. It does not start the clock on using it.
Sources
- The Planning and Infrastructure Act 2025 (Commencement No. 5) and English Devolution and Community Empowerment Act 2026 (Commencement No. 5) Regulations 2026, legislation.gov.uk, made 3 November 2026.
- English Devolution and Community Empowerment Act 2026, section 39, legislation.gov.uk.
- Planning and Compulsory Purchase Act 2004, section 12G (as amended), legislation.gov.uk.
- English Devolution and Community Empowerment Act 2026, Explanatory Notes: commentary on provisions, Part 2, legislation.gov.uk.
- English Devolution and Community Empowerment Act 2026, section 108 (commencement), legislation.gov.uk.
- English Devolution and Community Empowerment Act 2026, introductory text, legislation.gov.uk, Royal Assent 29 April 2026.
- Search results: "spatial development" in UK Statutory Instrument titles, legislation.gov.uk.
- Planning and Infrastructure Act 2025, legislation.gov.uk.
- Areas for producing spatial development strategies, GOV.UK, Ministry of Housing, Communities and Local Government, consultation closed 26 March 2026.
- A minister told the Lords the new nature levy would enshrine the rule that developers avoid environmental harm before paying to fix it. The regulations let a housebuilder pay in instalments after the harm is done, and the guidance never mentions the rule., trackedchanges.co.uk, 28 September 2026.
- A new Whitehall guide to how your council is held accountable rests heavily on audited accounts as a safeguard. The national auditor disclaimed those same accounts four months earlier, for the third year running., trackedchanges.co.uk, 22 October 2026.