Fighting Funds

Question

We are facing the imposition of a garden village driven by a policitised district council in receipt of MHCLG funding.

A neighbouring parish  council built a reserve fund to challenge this development at the local plan inspection paying for expert advice and representation. The  planning need for the garden village was dismissed  by the Inspector but  project work by the district council still continues.

I understand that as a statutory consultee we are just a single point of reference which would be limited value for money but how could we legitimately best use a precept derived fighting fund?

Answer 1

This raises an interesting question which I have raised before  but have not received a definitive  answer .   If a Council has the General Power of Competence then there is no problem . However if they dont have such a status then what power can they use to employ consultants? In my case it relates to planning inquiries.  I am sure however there are arguments/interpretations  both ways but I have no doubt that the fact that precept increases are not challengeable  means that some Councils go ahead and do it anyhow .

Answer 2

These actions carry a significant level of risk. If the district council decides to proceed with its plans and the parish council resolves to fight them, the final bill may well reach six figures. Does that fall within the normal spending parameters of your council? One could argue that there's no point in starting a battle you are unable to finish.

Legally speaking, setting aside the General Power of Competence, a parish council has no specific power to incur this expenditure from public funds (i.e. precept etc). It can raise funds through a public appeal for this purpose, as long as the purpose is clear and contributors do so willingly. Section 137 does not cover consultancy, Section 222 specifies legal proceedings and public inquiries, and Section 111 is questionable, as expenditure must relate to the discharge of the council's functions and the council has no specific function in this regard.

The broad context of GPoC may permit this type of expenditure, as there is no specific pre-commencement limitation.

You have mentioned the limited role of the parish council as a single statutory consultee and that should be an important factor in any decision to throw money at this problem. I assume you're now beyond the point where you can sit down with the district council to voice your concerns and influence their plans. However unpalatable it may seem, you might just have to take this one on the chin and start planning for a different landscape.

Answer 3

 The CLG Secretary of State has the power to take over particular planning applications rather than letting the local planning authority decide, which is known as ‘call-in’.  I don't know if this particular application would merit a call in, but your fighting fund could ask for expert advice to look at the possibility.

Comments

The only trouble with a call in they are as rare as hens teeth. Only a few are called in every year, and they have to match the criteria. It has to be implications beyond the immediate locality, have significant regional or national implications, or a potential conflict with national policy.
The subsequent public inquiry can be expensive, and the developers will have retained all the best barristers.

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Can I be clear here (meeting Council on Monday). My Council holds £100k in Earmarked reserves to fight inappropriate development and I am querying the power they have to spend it.   Would you say the Public Inquiry reference in LGA 1972 s222 includes PIs relating to planning matters? I ask this as the heading of this power refers to cases in which the PC is either prosecuting or defending a legal action  and planning matters don't seem to fall into this category . Secondly they are also considering  using S137 and stating in their opinion the expenditure will bring a direct benefit to the community , end of discussion its our opinion.  This decision is only challengeable if defined as wholly unreasonable . Statistics prove that 43% of all PI appeals are successful so would you consider a 57% chance of a direct benefit accruing is considered reasonable?

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There are Lawyers who specialise in supporting Planning Appeals from developers to the Planning Inspectorate, and technically you can challenge an appeal decision in the High Court if you think the Planning Inspectorate made a legal mistake.  It could be argued that if the PC chose to challenge a planning decision, the High Court could be the ultimate determining body, or even the court of appeal, hence S222 would be relevant.  In reality, only an external auditor could advise the Council, but not prevent them, from spending some of the £100,000.

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Based on experience I would avoid going to law - it's very expensive with absolutely no guaranteed outcome. I have seen a council spend upwards of 100k to cover a public enquiry defending its NHP, as a result of a call in.  In these cases one only has to cover ones own costs (unless you do something silly).

The other route is a judicial review if you think the law has not be applied correctly. Often used for planning applications. The downside is that even if you win, the planning authority will find an excuse to ignore it, or the planning application will be resubmitted with any legal mistakes corrected. Either way it is likely to be a waste of time and money. If you win you do get back some of your money.

Going to high court is fraught with danger, as the barristers will pull out all the stops to frustrate your intension. I have seen them argue over every single word in your application and then every word of the act as well. Then the appeal judges may come up with another act that nobody has thought of and apply that as well. (The PC has the scars to prove it).

Perhaps the way to think about it is 'how will you feel having spent £100k when you lose'. What would the person on the clapham omnibus say?

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I think I am clear now. S222 provides for a PC to "make representations" at public inquiries (forget JRs) and I assume this covers the advice of professionals.   The advice I have gleaned says that the legal test is  that the expenditure is OK if it considered "expedient in the interests of residents". It just so happens that I  have knowledge of some case law which sought to define the word expedient in PROW terms.  They settled on the expression "suitable , appropriate and proportional".   So the question is does this test apply to say planning appeals bearing in mind that statistically circa 45% of all appeals are successful. So clear about grounds for objection there. In my case of the contribution to third  party action  the PC have justified using S137 because the action is not in their name i.e as S222.  I will argue this contravenes the provisions of  S137  as it cannot be used for  reasons of a limitation in another relevant power