WHAT IS A POWER

Question

Getting to a very interesting stage about what my PC can or cant do under a certain power,  hence the question. So does a power tell you exclusively what you can do or can it include things that are not directly mentioned.  I suppose the ultimate answer is that only the courts can decide but is there a general rule of thumb?

Answer 1

Insufficient information to answer definitively but broadly speaking you can define Parish/Town Activity into Powers & Duties. When a Council has a "Duty" to act it is legally obligated (defined in legislation to act).  Whereas a power is just that the power to act (i.e legally the body can do something should it it wish). Your Local ALC is likely to do a "Power & Duty" Course (seems fairly standard course offering). Your officers should be providing guidance to members as part of meeting papers setting out basis in which a decision is legal as well.  Sometimes this will involve external opinion/advice

Comments

It relates to LGA 1972 s215 which I raised in another thread,  The legal test in that legislation requires that everything be kept in "decent order".  The dispute concerns the repair to memorials.   Many an opinion has said the power only requires PCs to make damaged memorials safe  But my current PC seems to want to overturn previous decisions and carry out some very expensive aesthetic repairs.   I suppose the answer will be if there are no limitations in the legislation  then it will be whatever Councillors decide "decent order" means .

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Its difficult one that.  Like you say opinion & interpretation vary.  I know locally one council concluded they didn't want to become the "test case" and backed away running the proverbial mile when someone well resourced put it to them quite forcefully he felt it was open to challenge there planned expenditure on church land.  I guess ultimately that is issue very few examples (if any) of it been tested so reliant on fairly flexible ALC advice & Officer advice (which clearly varies up and down land)

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Will you be seeking the consent of the owners of the memorials before undertaking work on them? Has your planning authority's conservation officer been consulted? There are many listed memorials on the Historic England map.

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https://www.churchofengland.org/sites/default/files/2017-12/maintenance%20of%20monuments%20in%20closed%20churchyards.pdf
The link above refers to safety work as a PCs only  " obligation" under S215.  That being said is anything beyond that optional or ultra vires?

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When  I asked my local affiliated association about the "limits" to S215 they replied "It is my opinion that if, as you say, your  Parish Council took on responsibility for the closed churchyard at All Saints in the 1970s from the PCC, then there are no limitations on LAPC providing funding for its maintenance, either directly, or through the charity set up for that purpose. Powers in law are no longer relevant as the asset has become a liability for which the parish council has a duty to maintain".
Any comments on the correctness of this advice ? Not sure about last sentence

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S215 has the effect of transferring the land to the council, although there is never a change of ownership. In other words, the council's obligation is to take the same reasonable steps it would take in connection with any other land it owns or occupies, particularly where there is open public access. Occupiers' Liability Act 1957 and similar legislation comes into play here. However, the council's obligation is only to make it safe. The "decent order" wording may have been inserted to allow local decision-making, as it clearly has no acknowledged legal definition.