S137 DEFINE LIMITATIONS

Question

Could readers please discuss this element of S137 and what it means in practice  

"or a purpose for which they are, either unconditionally or subject to any limitation or to the satisfaction of any condition, authorised or required to make any payment by or by virtue of any other enactment"

As an example, we are being asked to contribute to the costs of a new footway, but this does not appear to be covered in RTRA 1982, HA1980. LTN 72 or any other legislation ie they are limited to specific aspects of Highways maintenance.  I dont think it helps that this power is often described as "free resource". So, does a specific power for a specific reason constitute a limitation?

IMHO this power can and is often used to get around the loss of GPC.   Also is there any requirement for the RFO to maintain a dedicated list of S137 payments used?  If not, how do we keep below the prescribed limits.  Can't see anything in Fin Regs 

Answer 1

Forgive me but what are you looking for in response to this 'question'?

Comments

The question is essentially what are the limitations to the use of S137  ie as per para 137 (a) If for example if there are 5 types of repairs available on any Highway and you have powers to pay for 4 of them is the 5th category regarded as a limitation to your ability to contribute? It seems that far too often S137 is used when no other specific power is available.  To me it makes perfect sense to say it cannot be used to get around the lack of a specific power but there appears to be this way in of "direct benefit".  I am simply trying to understand what a limitation in the context of the legislation is as written

Answer 2

Its been a long time since I had to look up a specific power for a town or parish council to act but you are correct that without GPC, any and all expenditure needs to be within the power of a council to act although powers can be quite loosely defined.  So, for example, the power to contribute towards a footway might be defined as "promoting tourism" for example if it could be argued that it contributes to visitors accessing your town!

As you are probably aware, there is a financial limit for s137 expenditure in any financial year based upon the number of electors so for 2022/3 the limit is £8.82 per elector and yes there is a requirement for s137 expenditure to be recorded separately - usually as a separate budget line.   General Power of Competence enables a council to act and/or incur expenditure without a specific power to do so (there are some limitations) so the question of using s137 doesn't usually arise.

Answer 3

There is no specific power for a local council to contribute to the provision of a new footway, as far as I can see, and I'm curious about the reasons behind the request. HA S43 refers solely to maintenance. I can't see a realistic justification for using LGA S111, which must satisfy the requirement "to facilitate, or is conducive or incidental to, the discharge of any of their functions." There is no relevant function. So in the absence of any legislation authorising or requiring you to do this, you're eligible to use LGA S137.

Recording this expenditure is required by S137(7) which states "The accounts of a local authority by whom expenditure is incurred under this section shall include a separate account of that expenditure."

Comments

Essentially, we have a mobile home park which has been "built" on a farmer's land alongside a rural road. In order to get to the nearest bus stop there is a very narrow footway on one side of the road.  All previous requests to the HA have met with a "sorry nothing we can do" response.  Now it appears my PC are saying well what about widening it if we pay for it or some of it.  That will be very expensive, and I think beyond our powers, and I need to understand if S137 can be used

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"Very expensive" might be an understatement. Even if the highway authority isn't contributing towards the cost, they will specify the detail of the works. Depending on drainage requirements, you could be looking at something in excess of £1,000 per linear metre. The contractor will have to be a firm on the highway authority's approved list and their prices will reflect their elevated status. I suggest that you get a ballpark figure from highways to ascertain how it relates to your S137 limit.

I'm involved in a project to install a pavement along the front of a single modest detached dwelling on a flat grass verge. Highways insisted on gold standard, so we need a kerb line with a drainage run. Quotes are around the £35k mark.

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DTC oh I know the cost the Highways work. My concern is how is the word limitation meant to be interpreted.  You say if there is no relevant legislation it's OK.  I say if there is legislation around the subject generally and it's not mentioned then its possibly a limitation.
RAC s137 can of course be used for much more than grants.  We have a small grants policy but nothing for over £2k. By the way this relates to a footway as opposed to a PROW.

Answer 4

Who’s asking you (your PC) to contribute via s137?

Your s137 grant policy should specify what you can utilise your S137 allocation for.
For example, it might say that an application for s137 funding support should be from a properly constituted local group with a bank account and on presentation of recent set of accounts and which is not directly delivering religious services but does demonstrate benefit to the community commensurate with the amount being sought blah, blah, blah.
Do you have a s137 policy and does a footpath qualify? I suspect it wouldn’t if model regs are in place.
This rather sounds like somebody’s square peg good idea being forced into a round hole with a lazy attempt to justify which doesn’t really stand up to scrutiny.

Comments

DTC the problem is that the S137 shackles are not that binding as they are "in the opinion of " the Council and "commensurate with".   I am however interested in your comments about the fact that HAs cannot delegate duties.  Does not s101 provide for this? Is a duty not a function?   There are of course some powers and duties for which I would welcome delegation. I am just trying to get clear in my head as to where the boundaries are.   I suppose one of the expressions often used is "maintainable the public expense". What does that mean? To me it means if nobody else foots the bill well it falls to the HA.  The question is can the HA accept contributions or ask for them?  Some interesting comments here  https://www.exchangechambers.co.uk/chris-richards-highways-maintainable-at-public-expense/#:~:text=A%20highway%20maintainable%20at%20public%20expense%20is%20one,a%20particular%20highway%20is%20maintainable%20at%20public%20expense.

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You're at risk of overthinking this! Firstly, S101 allows councils to cooperate with each other, as willing partners. It doesn't allow them to dump their responsibilities on another council. If it did, would any council ever spend any money?

Highways maintainable at public expense are sometimes referred to as the Queen's (now King's) Highway and this is the collective term for all types of highway adopted by the highways authority, either specifically or by default. The highways authority is the funder of first resort and has many legal duties enshrined in legislation. Funding may come from a variety of sources, including the Council Tax, government grants, utility companies, contributions from developers or landowners, EU funding (pre-Brexit), etc, but it remains the responsibility of the highway authority to undertake its statutory function to deliver. Parish councils can and do contribute in a small way to some schemes, but the only specific powers to do so are for the maintenance of footpaths and the provision of traffic calming schemes. Several of my councils have made modest contributions to other highway improvement schemes delivered by our county council.

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Thanks DTC for your words of wisdom.  I am assuming that your interpretation of s34 is that it refers to PROWs (which are minor highways in law) and not to footways on other Highways ?

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A power to maintain is not a power to create. The definition of footpath might include a roadside path, as there appears to be no statutory definition to the contrary.

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s328   footpath means a highway over which the public have a right of way on foot only, not being a footway.  ?