USE OF S137 AND RETROSPECTIVE PAYMENTS PRINCIPLE

Question

I am about to complain to the auditor about my PCs approach to using S137 and to a degree my issues fly in the face of NALC small grants policy . Part of my problem is trying to understand what the actual legislation says and means (I find legal drafting difficult to follow and understand sometimes ).  I therefore seek members views on their interpretation . Precise text here  Local Government Act 1972 (legislation.gov.uk)

NALC’s guidance only allows applications from local community groups and individuals but not from businesses. Yet I do not see anything in the legislation which excludes businesses applying. Surely the important consideration is the direct community benefit derived from the initiative. I know of two business initiatives which have been  turned down, one from the doctors who devised a better repeat prescription ordering initiative (the most used option failed) and one from the Village Stores who wanted to buy some outside of shop recycling containers. I can see no mention of business exclusion in LTN31  . The only time qualifying categories are mentioned is (as I read it)  when project associated publicity materials are involved e.g. leaflet distribution  . I think that to exclude any source of community benefit is discriminatory and not provided for in the legislation  

The legalisation talks of “will bring benefit” in the future tense.  Our grants policy therefore includes a strict criterion that any pre application spend cannot be refunded . This translates into a policy of no retrospective payments at all can be made.  Is this a reasonable policy? I can understand it not applying to historic projects but what about part deployed projects?  However, my PC have now chosen to religiously apply this principle of  no retrospective payments to all budgets.  In my case the budget holder agreed to pay me expenses incurred on production of receipts (£43 PROW repair)  but Finance and the Clerk overruled them. When I complained the clerk said to do so would be unlawful i.e. as per SOs which read “The RFO shall verify the lawful nature of any proposed purchase before the issue of any order”. So do all items of spend require a physical order? Are there no situations where a receipt suffices  based on budget holders decision?

My PC has chosen to utilise S137 to pay for planning consultants and I quote “in the absence of a suitable power”.  They hold earmarked reserves of £100k for this purpose.  This is equivalent to 60% of the precept and could be potentially spent in several amounts or all at once.  My first comment is that 40% of all planning appeals are now successful so there is only a 60% chance of any direct benefit so would it reasonable to use s137 in such cases?  And secondly what is threshold/test for defining any spend being “commensurate” .  Here LTN 31 talks of a challenge if any of the foregoing is not Wednesbury reasonable. What is the test for that and who will  decide?

As I say interested in comments

Answer 1

Just to offer a view on this part first (short of time):

"...Yet I do not see anything in the legislation which excludes businesses applying..."

Your problem might arise from providing an absolute satisfaction that the business is not benefitting incidentally from having the recycling bins at its premises. 

(3 (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)

I'd suggest s137 funding TO the shop business probably isn't the best way to approach it anyway.

Have you considered turning it around?  PC takes on the liability for the recycle bins and the shop pays a contribution to the PC equal to its current bin liability?  

Just a thought?  Approving a s137 every year (even if it was viable) would be "untidy."

PC assuming responsibility for recycling seems a better idea all round?

Answer 2

And this part:

My PC has chosen to utilise S137 to pay for planning consultants and I quote “in the absence of a suitable power”. 

What MADNESS is this?

A PC engaging a planning consultant - and paying for it?  (did you say 100k?)

I'm at a loss to understand where that idea has come from.

A PC is a consultee.  The LA is the deciding authority and that is where the planning experts reside (in theory at least.)

Can you give us any more detail on this - maybe its just me (as a planning agent and a planning portal planning "champion") but this strikes me as complete madness. 

Comments

10 years ago when perhaps PCs had more influence they saw it as they role to act on behalf of residents  in planning matters particularly those possibly affecting  the green belt around our village. They resolved to build up a fund to object to any "inappropriate development " . Thats fund in Earmarked Reserves now sits at £100k. Twice in recent years they have used it to support planning issues raised by neighbours outside of the Parish who objected to schemes which arguably would affect us. All attempts to review the amount or explain  the powers they can use have been met with silence.  They simple state the first line of S137 in minutes  and carry  on. The relevant government dept refuses to comment suggesting I go a JR  I have of course pointed out that presumably any consultant trades for gain !!

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That is SO inappropriate (IMHO) I'd be pretty wild if I was a tax payer in that parish and there was a CT increase for precept with £100k languishing in a dubious EMR.
I'm guessing then that the PC has to 'object' to a proposed development by a majority vote and then there would need to be another vote to authorise expenditure on consultancy services?

This is a total nonsense and potentially a double spend for a single output.

If (and I do mean IF) there are valid planning reasons for the PC to object then they should be communicated to the planning officer and the ward councillor.
IF the ward councillor supports the objection then the application is put before LA planning committee rather than delegated officer decision.  IF the LA planning committee find grounds to object then the applicant can go to appeal.  It all comes down to planning law which I very much doubt many PCs are capable or even able to influence.  NIMBY is not in planning law.
To give an example from a recent proposed development site in a nearby parish where I was on the consultancy team, the PC received a good few objections, more than normal but when measured against the population of the village AND the parish it brought the PCs objection into a rather different light.
Extract from my submission:

To add some balance to the discussion, 19 representations made to the parish council may seem high...

It probably is fair to acknowledge that it is high, but only when measured against the normal trend of zero public interest / participation in general parish council issues.

Perhaps this sudden, apparent, surge of interest has taken the parish council by surprise?

19 representations, many repeating the very same (largely irrelevant in planning terms) objections, needs to be viewed in perspective.

Population of XXX parish +/- 1568
Population of XXX village  +/- 338

19 as a percentage of 1568 is 1.21% of the parish and 19 of 338 is 5.6% of the village.

Turn those figures around and you see that 98.79% of the parish and 94.4% of the village either don’t wish to object or have no opinion either way.

The obvious question therefore is:
Has the parish council represented the will of the majority?
End

So what are the criteria for a PC objection in your circumstances?  Greater than 50% of the parish expressing a view or the unbalanced opinion of the loudest voices?
I understand your frustration at meeting a wall of silence.  It strikes me as very odd.  It brings us back to that old chestnut, how do you get the subject onto the agenda for an honest and open discussion if the clerk and chair won't play ball.  Maybe try the extraordinary meeting route if you have the agreement of sufficient other councillors or raise a concern with the internal / external auditor stating that you have attempted to discuss legitimate concern but are being stonewalled.  At the very least you want to record all your attempts and corro with the auditor as a degree of personal mitigation if the council is criticised.
I wouldn't be content to sign off on that in the financial plan.