POWERS v FUNCTIONS

Question

I am currently preparing a complaint for the external auditor re my PCs holding and using of a huge earmarked reserves pot (planning contingency)  equivalent to 60% of the entire precept.  I have consistently asked what power would justify any spend of this money but cant get a response hence my complaint to the auditor . They have used some money to fund employing legal advice for an area appeal and have used S137 in that case and I am confident of my case there.   However in the case of local  development I am concerned about the use of s111 to employ consultants as coincidental to the PCs function to be able to comment  on planning applications  . I am just intriqued by the use of the word FUNCTION whereas in s137 they use the word power .   Is there a difference?

Answer 1

PC EMR for planning consultants seems completely bizarre in the first place.

S111(1) seems to suggest Local Authority - I take that to mean district / county council rather than PC - open to being corrected if anyone reads it differently.

S111(1) also seems to suggest that, if it did apply to a PC, that the PC would necessarily need to have general powers of competence.

Comments

Section 111 agreements are agreements entered into with a local authority under section 111 of the Local Government Act 1972 (LGA 1972).

Section 111 of the Local Government Act 1972 is entitled “Subsidiary powers of local authorities”. It is a generalised catch-all provision to enable local authorities to “do any thing.... which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions” (Section 111(1)).

The use of the power under Section 111 is by its very nature applied to a very wide range of local authority functions, and its use must be subsidiary to the discharge of some particular function.

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This point Lets be honest  is crucial. If you read NALCs LTN 15 re legal proceedings it seems to imply that they believe it applies to PCs as well. Anybody got a convincing argument one way or the other ? There again If you read section 2 of s111 in isolation it says that any business being transacted by a PC is to be regarded as PC specific. i.e.  relating only to its own functions.
Is  this not saying  that as such it (PC business) is outwith of section 1 which relates specifically to  Local Authority  functions?  Confused

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Can’t easily access LTNs - arguably a major factor in PCs behaving badly since, often PCs and certainly Joe Public, are excluded from reviewing national guidance.
Any chance you could cut & paste the relevant text?

As you say, if it ‘appears’ unclear or open to interpretation, then maybe putting the question of eligibility (of a PC) to invoke s111 to the auditor could force a recorded professional opinion.

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Looking via desktop rather than phone (earlier), still can't track down a copy of LTN 15 and it appears that it has been removed from NALC reference library.

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I have just found a copy of LTN15 on the NALC website.

https://www.nalc.gov.uk/library/members-library/legal-topic-notes/all-legal-topic-notes/1669-15-legal-proceedings-july-2015/file

You need a login code of course.

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Whilst not talking about my circumstances (but s222) para 9 reads
."NALC is of the view that councils have the power to take the above steps in paragraph 8 because they are incidental to the powers set in paragraphs 4-7 above.  In these circumstances councils are able to rely on s. 111(1) of the 1972 Act which provides":
thereby implying that PCs can use it

Answer 2

Its not clear as to how much this amount of money is as 60% of a £10000 precept is not a lot if you all of a sudden had to deal with a playground repair....  Guidance is for reserves to be between 3-6 months of expenditure but again, that is fluid depending on the commitments that the parish council has.  We have contracts with grounds maintenance, a pavilion to maintain and other items that could lead to large expense.  I think more details are required to give a thorough answer.

Comments

Mrs A . I understand the principles of general reserves but in this case I am talking about a Earmarked reserves pot .  Our precept is circa £180k  which feeds the  three budgets, viz year round , general and earmarked reserves. I am just trying to out into context of how big this pot is (£100k for "planning contingency"  especially as there seems to be some uncertainty as to whether non GPC PCs have the power to spend it. I feel some clarification is needed as precisely what the role of PCs in planning matters. and clarity re the attendant legislation.

Answer 3

Whilst I cannot find a definitive answer either to the s111 applicability to PCs or the appropriateness of setting aside EMR to pay for planning consultants - which I personally consider to be bizarre anyway - all I can do is reiterate that it doesn't 'seem' right.

Why doesn't it 'seem' right?

Because it just doesn't seem like a justifiable use of tax payers' money.  The role of a PC as a statutory consultee in planning decisions is clearly defined and should be well known but I don't see how that role extends into expenditure for consultant to support / challenge to an application.  Is it safe to assume that the consultant would be just as likely to be engaged by the PC to support an application that the LPA were minded to refuse as they might be to object to an application that the LPA might support?  If not, why not?  If yes then that would be tax payers' money being spent to provide a (potentially) unfair / inequitable advantage.  It's fraught with danger either way.

What are the qualifying criteria for such action / expenditure to be invoked?  Is there a % of the electorate that need to have expressed a view (one way or the other) in order for the PC to proceed and demonstrate that it is representing the will of the people?  What would that % be?

I could understand if the PC were to act as a facilitator / coordinator for support / oppose community groups that had an interest in a planning application - that would readily fall in the sphere of PC influence of "...leading community engagement..."
Setting aside reserves for payment of consultants to support / oppose a planning application  - nah, not buying it.

Does it 'seem' wrong?  Yes.  Can we define precisely why it's wrong?  Perhaps no.
Generally in life, I'd normally adopt the principle that if there is no specific rule that says you can't, there is probably a way to justify that you can.  Even with that starting point, a scenario still has to pass the sniff test and this one doesn't (IMHO.)

Perhaps the second/third level implications might what are the 'triggers' for using the money and who is authorised to proceed and then (if this is not appropriate) that the balance should not be in EMR but in available cash and that has implications for precept calculations and historic increases.

Comments

Found this in Hansard The Bill defines "local authorities" in Clause 256(1) as a county council, the Greater London Council, a district council, a London borough Council or a parish or community council.. I  don't agree that any PC necessarily has to have the GPC as that didn't exist in 1972.  So we now get back to what is the difference between a power and a function .  It appears many PCs apply it to anything  ie much more useful than s137

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The more I read s111 the less clear it becomes . I fully understand what PC powers are but what are subsidiary powers? How does one differentiate between the various powers to establish which are major powers and the ones which are  minor powers i.e. subsidiary ?  Then again, s111 relates to the discharge of the PCs functions. What are a PCs functions as opposed to powers? On the face of many PCs are using this power effectively as a substitute for the   General Power of Competence i.e. they can spend on anything.  In my case the PC are saying we can comment on a planning consultation and use s111 to employ consultants to advise on that comment. Then again what is para 2 all about which appears to pertain to meetings only . And what is relevance of Para 3 ? This needs explaining in plain English