USES OF S137

Question

As a non GPC PC my PC has no statutory powers to spend money taking professional advice on Planning matters. A case is being put forward that S137 can be used as in the opinion of the Council there will be a direct benefit to the community by representing their views to the Planning Authority. The counter argument is that if they lose then there will be no benefit at all.  So are the most important words in S137 (which need no defence) “in the opinion of” or the delivery of a direct benefit conditional.

I note the words “free resource” are often used about s137 so is it in effect a mini GPC to be used on whatever Cllrs decide?  Does anyone know of any case law on S137>

Answer 1

Didn't you ask the same question in October 2020? Is this still dragging on, or are they trying the same trick again?

Comments

This relates to a different use viz particularly opposing a planning application . Our County Association advised that a PC had no statutory powers re planning but could comment and inter alia said "I think that there is scope for legitimate expenditure in terms of publication of additional newsletters, setting
up of online surveys or even public meetings to facilitate the submission of an objection to a planning application, for example. However, the costs incurred would be relatively low and should result in residents being able to collectively make a well-informed, well-presented case for objection. This is where carefully
allocated Section 137 funds might be able to be used to show that a benefit had been brought to the community as it had been given the best opportunity to be directly and democratically involved in a process that shaped the development of the area in which they live. Where 'objecting to planning development' and 'legal costs' are mentioned, this could risk the Parish Council being seen to be at odds with the Unitary Authority in their execution of their duties as the Planning Authority, and this is where I have seen Parish Councils in the past become too involved in a public display of protest, one of which resulted in an unpleasant legal battle that the Parish Council subsequently lost".  Despite this advice Cllrs have now elected to engage a planning consultant  using s137 and I am now arguing the toss with the clerk and external auditor . On the face of it s137 can mean different things to different people. I am just seeking views as to how others see it .

Answer 2

The legislation is clear on this. Section 137 relates to expenditure that "WILL bring direct benefit" and the benefit "WILL be commensurate with the expenditure." There's no scope for gambling.

Representing the views of the electorate is a function of a local council, but, as your ALC has pointed out, this should be done at minimal cost. Has every resident been asked to express their opinion? Is the whole community against the proposed development, or just a vociferous minority? Have residents been invited to crowdfund the cost of the consultant, as this is a helpful measure of the strength of opposition?

As with all planning decisions, if the proposed development doesn't conflict with the Local Plan or the NPPF, it's probably going to happen anyway.

Comments

Ironically  DTC I had just written this to the clerk
 LGA 1972 s137 para 1 says “ A local authority may, subject to the provisions of this section, incur expenditure which in their opinion is in the interests of, and will bring direct benefit to, their area”
Here LTN 31 para 7 says
“The council is the body to determine whether or not such benefit will accrue, and a decision by the council could only be challenged on the ground that it was wholly unreasonable”
The  use of  the word will to me implies absolute certainty (use of the verb will Certainty in the future One of the main uses of will is to refer to things in the future that we think are certain)
LTN 31 also says Expenditure incurred by a council under s.137 is open to challenge by the auditor, or by a local government elector objector at audit (s.27 of the Local Audit and Accountability Act 2014), on the basis that the expenditure is larger than the direct benefit to the area or to residents would justify.

I believe the PCs use of s137 in a situation where there is no certainty of a direct benefit is “wholly unreasonable”

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The terms "will" and "shall" have an accepted meaning in UK law relating to obligation.

There's a separate issue here about how we define benefit. You haven't indicated what the planning application is for, but in the typical scenario of housing development, there are two sides to the argument. On the one hand, people talk about the loss of land, spoilt views, increased traffic, pressure on utilities and services etc. The alternative view is that new housing allows older children to remain in their community, provides affordable housing options, supports local amenities, creates and supports jobs, and brings hard cash in the form of S106 or CIL to invest in local infrastructure.

I live in a village that has died due to a lack of new housing. We've lost our two shops and a post office, two pubs, the village school and last year we closed the church. The village hall is our last remaining amenity. Residents still claim that the village is just the right size and shouldn't be allowed to expand, but it's five times the size it was 100 years ago and has grown steadily throughout that period.

Sustainable growth is essential.

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Yes defining benefit that's another debate . An opinion says   A direct benefit is one where the impact of the expenditure is immediate and clearly beneficial to the residents of the parish. The benefit should tangible, specific, and can be directly attributed to the expenditure. The outcome should be visible and measurable.  So how does that apply .to a planning case?  But no matter how you define it  the will still has to be applied . In our case the application is a biggy ie green belt land involved and "very special circumstances" being claimed

Answer 3

A PC should submit its resolved position on any given planning application to the LPA.
It is for the LPA to determine, via professional planning case officers, if the application should be approved, conditionally approved or refused.

Where is your LA ward Cllr in all of this?  They are the conduit between a PC and an LPA.

The s137 wording allows for some ambiguity in the use of the power but allows for none in the amount that can be spent which is the calculation of whatever the current rate is x the number of residents.  I would be surprised if a regular PC would actually have enough financial allowance in s137 to make any meaningful contribution towards the cost of planning consultancy, let alone the potential for enduring / escalating costs thereafter.
What is your PCs s137 allowance for the year?  I bet it is insignificant in relation to the full cost potential and if that is the case then a part spend with limited expectation of success would be foolish.