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

I feel I need specific answers out of this debate.  The relevant legislation re Highways contributions reads as follows
1980 S274A reads as follows
Contributions by parish or community councils.
A parish council or community council may contribute towards any expenses incurred or to be incurred by a highway authority in constructing, removing or maintaining—
(a)traffic calming works, or
(b)other works (including signs or lighting) required in connection with traffic calming works,

That text limits the extent to the work on Highways that PCs can fund. Does that therefore mean that work on Footways is a limitation of the above power i.e., by the fact that it is not specifically included/mentioned. Does a limitation have to be specifically mentioned or can it be a limitation by exclusion?  There has to be a definitive answer or how else can S137 be interpreted?

I also have a similar long running situation (re modelling of pavement) which is a product of our original local development plan.  As I wasn’t around at the time can you please advise whether the NDP process had specific powers re funding and implementation, or would the usual powers still pertain   ?

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The specific provisions are the only highway works a parish council may contribute towards. Similarly S43 applies solely to maintenance.  The parish councils are not highway authorities and responsibility for all other types of work rests with the highway authority. The limitations on S274A are that it applies exclusively to traffic calming, so it has no bearing on a new footway. Limitations are always explicit, not assumed, otherwise it would be impossible to apply any legislation without involving lawyers at every step of the way.

There's an important principle in play here, as it prevents highway authorities from delegating responsibility for any works to local councils.

On the issue of Neighbourhood Plans, no, they don't carry any additional powers outside the existing expenditure framework, although a council with the General Power of Competence has greater freedom in all aspects of expenditure.

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Grant-giving policies are fairly common nowadays, but Section 137 covers much more than just grants to local and national charities and I haven't encountered a comprehensive Section 137 policy yet. 137(1) relates to any expenditure that will benefit inhabitants, which can include the council's own projects, alone or jointly with other councils.

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I appear to be around circles here.  You say that a) Highways authorities cannot delegate responsibility and b) limitations have to be actually quoted, and this is clear and precise.   Yet you appear to say that a PC can contribute to any Highways scheme utilising S137 under the direct benefit banner.  If that's the case, then S137 seems to defeat the object of the exercise ie clearly defining what PC funds can be spent on.  I suppose in plain English the HA can't ask you to contribute but the PC can if it wants

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The reason you are going round in circles is that your question is poorly constructed.
You have already stated that your s137 has a limitation of £2k.
There’s your answer then.
If you want to use powers under s137 you are limited, by your own policy, to a £2k ceiling.
That’s your question answered in full - close the thread.

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Sorry RAC but you clearly don't understand the uses that S137 can be put to.  My question related to uses other than grants viz the ability to contribute to the costs of upgrading a footway on a highway. It was you that asked the question about grants which is an entirely separate use of S137. I simply responded to your question.

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That’s a bold assumption!

Your use of s137 is restricted by statute to the amounts of £s that can be set to that purpose - regardless of whether it be grants or other uses. I’d hazard a guess you’ve painted yourself into a corner since unless your council has a MASSIVE budget / tax paying population, you won’t get far with 137 money towards what you present to be an expensive project….

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We dont have a problem with S137 total with 6/7000 residents.  What I have is a PC who for a long time enjoyed GPC but has recently lost it.  Unfortunately, it still continues to spend money as if it still had GPC ie gives little consideration to powers or if they apply.  I am just trying to get to grips with the use of S137 if no specific powers apply.  Dave the Clerk appears to indicate that if no specific power exists then S137 can be used if it brings a direct benefit.  The really negates the effect of losing GPC IMHO

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The main difference between S137 and the GPC is the need within S137 to quantify the benefit. The sums of money involved are also different for a small parish council with fewer than a thousand residents, as their total S137 spend is limited to a few thousand pounds.

The final sentence of one of your previous comments (plain English) is completely correct. The HA has a duty it cannot delegate, but the PC has the discretionary power, albeit the non-descript "in the absence of any specific power" to contribute, subject to the shackles of "direct and commensurate benefit" enshrined in S137.

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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.  ?