1. SOUTH WEST REGIONAL CONFERENCE 16 March 2017
LEGAL UPDATE
Jane Moore
Solicitor & Head of Legal

2. LEGAL UPDATE Hot topics! Devolution Neighbourhood Planning & CIL
Repairs to churches
Your hot topics?

3. LEGAL UPDATE - DEVOLUTION
Principal authority (PA) budgetary constraints - having to make hard choices about how and where to spend their money
Prioritising of services they are obliged to provide (e.g. social care) - may no longer be able to fund services they have provided on a discretionary basis (e.g. libraries)
Your experiences?

4. LEGAL UPDATE - DEVOLUTION
If asked to take over a function, local councils should be mindful of the following, non-exhaustive, issues:
Will the PA provide funding? If not, how will the local council fund the service? Is it in residents’ best interests to take on an un-funded service even if local council wishes to save or preserve it?
Does the local council have the power to take on the service? If no power, PA would have to delegate it to the local council under s.101 Local Government Act 1972 (LGA 1972)
Requisite levels of expertise and staffing resources within the council to take on the service?

5. LEGAL UPDATE - DEVOLUTION
Will staff be transferred to the local council as a result of the transfer of the service? Transfer of undertakings (TUPE) implications?
If the service involves property (e.g. libraries, public toilets), will building(s) be transferred to the local council?
Is there a written agreement (e.g. service level agreement) setting out the details of the function and the transfer? N.B. details of the service to be devolved and what the local council is taking on should be set out in writing
Any scope for working with other local authorities/ voluntary groups?
NALC recommends that any local council considering taking on a service from a PA first seeks legal advice from NALC or instructs other lawyers

6. LEGAL UPDATE – NEIGHBOURHOOD PLANNING (NP) & CIL
Under CIL (Reg. 59A Community Infrastructure Levy Regulations 2010, as amended) neighbourhoods will be passed 15% of CIL revenue received by the charging authority where development has taken place. Figure rises to 25% where the local council has an adopted NP in place
15% figure capped to £100 per existing council tax dwelling which can be passed on to a local council to be spent on “local priorities” – no cap applies where the local council has an adopted NP
Para. 107 DCLG Guidance – Community Infrastructure Levy Guidance (April 2013) - indicates that neighbourhood funding can be spent on a wider range of things than general levy funds

7. LEGAL UPDATE – NEIGHBOURHOOD PLANNING (NP) & CIL
Local councils with general power of competence (GPC) – can use CIL on items where they have a statutory power/ duty to provide and on more strategic/wider infrastructure items
Local councils without GPC and s.137 LGA limitations? Key issue
NALC understands that some Local Planning Authorities (LPA) have been attempting to retain the CIL portion to local councils by stating that where a local council does not have GPC, they are restricted in using their CIL funds to those items where they have a statutory power or duty to provide or maintain the specific infrastructure item
NALC legal view – LPA approach does not make sense as the CIL Regulations (in particular Regulation 59C) give a power to spend CIL funds.
NALC legal has been communicating with DCLG on the issue - DCLG policy position backs up NALC legal view
NALC seeking DCLG lawyers’ view – watch this space!
See handout

8. POWERS TO SPEND MONEY ON CHURCH REPAIRS
Recent area of interest
NALC position – local councils have no power to fund repairs to churches/ church buildings/ property held for an ecclesiastical charity
S.8 (1) (i) Local Government Act 1894 – prohibits local council spending on “property relating to affairs of the church” – i.e. local councils cannot pay for church roof repairs, installation of toilets in churches etc. - s.137 LGA 1972 & GPC do not alter that position (N.B separate issue to maintenance of closed churchyards where responsibility has been formally passed to a local council)
Church of England view – S.137/ GPC do give local councils the power to fund repairs to church property
Technical legal issues raised - NALC legal instructed counsel to provide an opinion owing to the divergent NALC/CofE views
Counsel’s view - confirms and reinforces NALC legal’s view
What’s next? Matter of policy rather than law - repeal of s.8? Your views?

9. ANY OTHER QUESTIONS