ROLE OF THE MONITORING OFFICER

Question

I have a situation in which I have long believed my PC has earmarked a significant amount of money for which  I don’t I believe we have the power to spend it on.  It has been inherited from the previous Council which operated on a principle “we have decided what to spend our money on, now clerk go away and justify it” .

When questioned the clerk simply repeats the old party line and when I take each power mentioned apart, she just wont reply .  The auditor simply cuts and pastes the clerks response . My local County association  says you have a paid clerk why are you asking us. The response from the relevant governement dept via  my MP is “take court action if you are not happy”. Most other Councillors simply aren’t interested.

Now I  notice in recent correspondence that it is the role of the Monitoring officer “to report on matters they believe to be illegal or amount to maladministration “

 Is a request from a Councillor to the MO to opine on such matters an appropriate route if said Councillor believes his Council  acting ultra vires?

Answer 1

The earmarking of reserves isn't illegal or maladministration, although the subsequent expenditure may be. No offence has been committed.

Comments

DTC  That's an interesting statement .  If you create a EMR for a project for which you do not have a specific  power then that's OK?    The problem only  occurs  is when you actually spend it?  I cant agree with that .   All too often I see Councillors decide to spend money without having a clue whether they have the powers to do so.   It says it all when I spoke recently to a long serving Councillor about S137 and she said "whats that"

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An earmarked reserve can be unearmarked by a simple virement motion at any meeting and should be reviewed annually as part of the budgetary process.

I agree with your interpretation that a local council does not have the power to engage consultants to challenge planning applications, but am also aware that a number of councils have either done so or created a similar slush fund for this purpose. The wording of S111 is sufficiently vague to support both interpretations. Expenditure "which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

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But isn't  the definition of  a PCs functions the sum of any duties and powers.? Therefore I don't see the right to comment on a planning application as  a function

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Most planning authorities treat parish councils as statutory consultees for planning applications within the parish, which some would consider to be sufficient to make the consideration of the application a function of the council, thereby making contesting an application incidental to the function. This would need to be tested by a court to provide definitive guidance.

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All reserves must be reviewed as part of the annual budget-setting process. Perhaps you could propose that the council publishes a policy statement on this reserve, explaining exactly what it would and wouldn't be used for. For example, would you challenge 10 dwellings, or 30, or 50? Is it for specific locations or types of land? Is it exclusively for development within the parish boundaries, or would the council join with neighbouring councils to contest development elsewhere? How would you define the detriment that is required to trigger using this reserve? Would you challenge projects of national significance (HS2, airport expansion etc)? What services would you expect the consultant to provide in each scenario and at each stage of the process?

By bringing all of this out into the open, you might split opinion sufficiently for the council to decide that the reserve has no meaningful purpose. Conversely, of course, your colleagues might decide to double the amount held!

Answer 2

It might be helpful if you first explained what the money has been earmarked for.  That would give the chance for contributors on here to pass an opinion on whether that reserve, once it is spent, is, or is not, ultra vires.

Comments

John 1706 .  The £100k pot (equivalent to 50% of our precept ) has been held untouched for 7 years to object to inappropriate planning development and to employ consultants etc   The powers proffered are
a) S222 Power of local authorities to prosecute or defend legal proceedings.  Opinion says Planning PIs etc are not classified as legal proceedings as they cant enforce only make recommendations
b) controversially S111 but this is deemed as a subsidiary power and some say  it must be "attached" to a primary power of which there is none re planning  and c) S137 I argue it fails the will bring benefit test (if you lose)   Now I am not saying I am right but  just want to be convinced that's its legal (or otherwise)

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I think you need to separate what is sensible  and what is legal.

Is it sensible to spend half the council's entire budget on objecting to a planning application.  Probably not.

Is it legal to spend half the council's entire budget on objecting to a planning application.  Probably but I think this would have to go to court to be tested.  Deep pockets required.

Answer 3

Under section 5(2) of the Local Government and Housing Act 1989 the MO has to produce a report on any matters they believe to be illegal or amount to administration. But this only applies to matters concerning decisions made by the relevant authority (ie the principal authority and not decisions made by Parish Councils).

MO duties with regards to Parish Councils are only to investigate breaches of the Code of Conduct and to maintain the register of interests.

Getting a MO to give an opinion is like getting blood out of a stone. Unlikely you will be successfull.

Comments

While this thread has ended up talking about Planning expenditure the original question mentioned a referral to the MO.  The detail of the referral follows. I would be interested in comments as to its legality
We have a community centre which has gone through a traumatic few years which involved all the public trustees resigning .  Eventually the Councillor trustees in turn resigned and we now have a completely new set up but mainly driven by public trustees.
The issue has always been around the grant provided and the use it is put to.  The lease provides for a grant for maintenance work  but there continues to be endless arguments about whats maintenance and whats isn’t. Added to this Covid has decimated their reserves and revenue.  While a recovery plan is working well the issue of the grant continues to cause endless debate and yet another working party has been set up.  Having read the 1976 act it states that any grant paid does not have to be restricted to just maintenance.    I have approached the situation by saying look the PC has to come to agreement as to how much it wants to pay in total and then decide how that would operate i.e. not to mandate how it must be spent . Previously everything has been based on an “agreed schedule of works” (which could never be agreed).   As such I submitted the following for discussion

Dear All
It would seem to me that the immediate aim is to come up with an agreement which clearly spells out the "agreed needs" of both parties .  XXXX wants greater certainty in order to better plan along with some in built  flexibility whereas the PC wants re-assurance that its funding is delivering real improvements /VFM.  Can I suggest we work towards a formal agreement document.

Accordingly I put forward the following version for discussion
BASIS OF AGREEMENT
The Parish Council agrees to provide XXXX with annual grant of £A providing XXXX agrees to the  following “understandings/conditions” . The process will be kickstarted by XXXX submitting  a properly costed next 12  months planned  maintenance programme which in total shall equate to 90% of £A

•Up to 10% of A can be used during the year as a contingency to fund any unforeseen maintenance expenses. Such costs to be advised to the PC
•Maintenance to be as defined by XXXX
•Any PC grant monies received and expenses incurred to be separately identified in XXXX’s accounts.
•Grant to be paid 50% in month/period 1 and 50% in month/period 6
•Any funds left unspent shall be vired to XXXX’s maintenance reserves up to an agreed maximum (to be revised annually)
•Any external maintenance funding received by XXXX shall be declared to the PC and discussed as part of the annual round of grant aid support.
•To measure the effectiveness of its financial support XXXX agrees to provide the PC  all requested financial information from its accounts (in a format of the PCs choice) .  The aim will be to create a maximum of 4 agreed Key performance indicators (KPIs)
•XXXX agrees to provide a detailed progress report to each Full Council meeting to inter alia include monies spent to date and ROY forecast  and commentary.
The clerk considers some aspects of such an agreement are potentially unlawful hence referral to MO.  I believe whatever the PC agrees is lawful

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I will be happy to be corrected by better informed contributors, but my understanding is that the influence of the Monitoring Officer over the affairs of a parish council is limited to the conduct of individual councillors vis a vis the Code of Conduct.
I do not therefore believe your Monitoring Officer will be interested the parish council's agreement or otherwise with your community centre