POWERS TO EMPLOY LEGAL ADVICE

Question

Do PCs have powers to employ experts for legal advice say to object to a planning application or should it be authorised under S137?  I cant find anything specific.

Answer 1

Sadly a Parish Council has no more say  than a resident in a planning application
The question you have to ask is what arguments can a legal individual raise that residents haven’t. If the legal person is just acting as your spokesman it may be an expensive exercise.

Parish Councils are going become under increasingly more pressure to accept planning in their area due to the new government guidelines of housing requirements

Comments

With respect that doesn't answer the question.   My PC has set up a £100k fighting fund to employ planning consultants to object to inappropriate development.   Recently we are asked to contribute to a nearby Airport expansion application appeal and the clerk said it could come out of the fund but it  would have to be authorised under S137.  That appears to indicate that there is no specific power to  employ consultants.   The use of S137 in my mind raises a few questions . Firstly because there is a financial limit on the spend  and what about if they lose ie could they reasonably say the money had been spent  on a community improvement  ?

Answer 2

Which Act are you referring to S137 from? Please clarify.

If the council have the general power of competence the answer is yes, they can employ experts for legal advice.  But as Clerk Gable rightly points out, the Parish Council is just a consultee, whose response would be treated as a single contribution, as would those from every resident that responds.  Unless the experts had some compelling reason to stop development that the Principal Authority had overlooked, it could end up being a waste of the precept. 

Comments

I believe it is s137 of the LGA 1972. The problems associated with planning permissions are not clear cut as East Bergholt PC recently discovered.

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Firstly, my PC does not have the general power of competence. I dont know if I am being thick here but I agree with the assertions  re a waste of precept  and  the PC rights/influence  regarding planning comment.   But the question I am asking  is if they have employed consultants, lawyers or whatever under what power have they paid the bill or are they acting ultra vires.?

Answer 3

I don't see this as valid S137 expenditure. Section 137 allows councils to incur expenditure that will bring direct benefit to the area and/or its inhabitants and the expenditure must be commensurate with that benefit. The use of the power is well defined. Specifically:-

"A local authority may, subject to the following provisions of this section, incur expenditure on contributions to any of the following funds, that is to say—
(a) the funds of any charitable body in furtherance of its work in the United Kingdom; or
(b) the funds of any body which provides any public service (whether to the public as a whole or to any section of it) in the United Kingdom otherwise than for the purposes of gain; or
(c) any fund which is raised in connection with a particular event directly affecting persons resident in the United Kingdom on behalf of whom a public appeal for contributions has been made by the Lord Mayor of London or the chairman of a principal council or by a committee of which the Lord Mayor of London or the chairman of a principal council is a member or by such a person or body as is referred to in section 83(3)(c) of the Local Government (Scotland) Act 1973."

As has already been stated, your total expenditure under S137 during the current financial year cannot exceed £8.32 muliplied by the number of electors.

Furthermore, your fighting fund of £100k may fall foul of the wider legislation, depending upon its original source.

Comments

Does your Council have a Neighbourhood Plan? If planning is such a big issue for you, this might be a better option than throwing wads of cash at consultants.

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Yes we do have a Neighbourhood Plan  but still nobody is answering the question i.e. under what powers are consultants being paid ? Dave  could you expand on your "wider legislation" and "original source" comments.   Our pot  originated 10 years ago when a Cllr suggested they build up such a fund . It was "closed" when it got to £100k (and has sat in the bank for 3/4 years unused) which was about the same as an annual precept.  Also would interested to know what pressures are being put on PCs re planning  , Are they direct pressures  or suggested ?

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I'm not aware of any legal power to gamble a parish precept on consultants who may, or may not, provide any benefit whatsoever to parishioners. If you run a public appeal to build a fighting fund, giving parishioners the option of contributing or not, making the proposed use of the money absolutely clear, then I see no problem. My concern relates to the use of any funds from the precept and arguably, to funds raised from other sources to support the precept.

How does the planning issue you are fighting relate to the Neighbourhood Plan? I'm guessing the airport lies outside your parish.

Your Clerk should be asking your local association to take this up with the NALC legal bods for specific advice on both matters.

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Is that an additional provision for a Parish Council to the article below Power of local authorities to incur expenditure for certain purposes not otherwise authorised.
(1)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 or any part of it or all or some of its inhabitants, but a local authority shall not, by virtue of this subsection, incur any expenditure—
(a)for 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; nor
(b)unless the direct benefit accruing to their area or any part of it or to all or some of the inhabitants of their area will be commensurate with the expenditure to be incurred. ??

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I am not quite sure what that  (legal speak)  means Graeme !!  What is the position if a fund was formed at a time that a PC had the GPC but has subsequently  lost it and no longer has a relevant power to spend it .  Is it due to be returned to the electorate in the form of a reduced precept or can it be vired elsewhere?

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Graeme . Having read this section of s137 overnight I recall dealing with it many years ago . It does appear to give PCs almost GPC like powers to spend on whatever they believe with bring direct benefit. The problem with legal  action is of course you might  lose in which case  it could have the opposite effect. In such a case would it be a reasonable defence to say  "nevertheless it was what we believed".  Looking at the matter from a different angle the precept is arrived at through the building up of the overall  budget which includes the Earmarked Reserves.  Is it appropriate to build up specific reserves for a purpose that you have no direct power to use ?

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Interesting extract from LTN31. “The council must secondly ensure that the direct benefit accruing to its area or residents is commensurate with the expenditure incurred. This means that a council should not spend a disproportionately large amount on something which has no or very little direct benefit”
I would ask that you note the word ensure here as I believe the legal interpretation is “to guarantee”. I believe in the case of legal expenditure success cannot be guaranteed. Hmm

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S137 and GPC are very different powers. As I mentioned in my first post above, S137 covers donations to charitable bodies, a body which provides a public service or a public appeal for an event directly affecting persons. No mention of planning consultants.

GPC offers much wider powers, but can only be exercised whilst the council holds the GPC. There are specific transitional arrangements for projects under way when a council loses the general power, but they do not extend to allocating money to undefined pots under GPC then spending it years later without the power.

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Would all readers agree that LGA 1972 s222 seems sadly to cover everything  ?

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That depends whether you consider objecting to a planning application to be legal proceedings. I call it an administrative function. Is the objection necessary for the promotion or protection of the interests of the inhabitants? Has anybody asked them whether or not they need such protection? How many of the people objecting to new development live in a housing development built in the last 50 years that was, at the time of construction, considered to be inappropriate? What would your parish look like now if none of these developments had been allowed to go ahead? Growth is inevitable.

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I contacted the PC mentioned by Samuel and the clerk (a solicitor)  suggested the use of LGA 1972  s111 but described that choice as " for the desperate". Views ?

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My Council is due to confirm its budget for next year this Monday and it is includes the renewal of its Earmarked reserves which includes a £100k pot headed planning contingency. Recently it spent a £1000 of this pot by contributing to an “employ a barrister fund” as a part of a Council response  to a planning appeal.  They spent this money utilising power LA1972 s137.
I argued by E mail that this was inappropriate as no direct benefit could be guaranteed i.e. if they lost . Having received no reply the next meeting confirmed this payment and the power used.  At the same meeting it put forward its plan for next year’s budget which included the retention of the aforementioned pot.  I then formally wrote to the clerk putting forward my case ie about the power to be used for spending this money and asked that it be considered by the next Finance Committee members.  The clerk did not reply and it was not included on the Agenda.   This Monday the full budget is due to be considered by the Full Council and I have written directly to all Councillors but none have responded yet.
It seems my Council are adopting a “say nothing and he will go away” attitude.   They do this as they know that any challenge to a claim that they are acting ultra vires can only be ultimately settled at a Judicial review the cost of which is beyond most residents.

Now I believe I have read somewhere that if I contest the payment made above that the auditor can under their powers fund a Judicial Review. Is this correct or not?  If not the situation is that any PC can effectively put two fingers up to its electorate
I due to speak under public participation on Monday . How do other commentators see this situtaion