Leisure Procurement – Practical Tips and Lessons Learned

by Louis Sebastian, Legal Services Team Manager

This year the NWL Legal team completed the outsourcing of North West Leicestershire District Council’s leisure centres following a Competitive Dialogue procurement. This 25 year “Design, Build, Operate and Maintain” contract will deliver a new £23m leisure centre in Coalville and see over £75m of revenue generated during its term.

Having acted as lead lawyers on this major project, we summarise some of the key considerations that we grappled with during this procurement.

  • Governance
    – The decision to enter into the contract is an executive function and so is to be made by Cabinet.
    – If such a large outsourcing has implications for the budget then making changes to the budget fall to Full Council.
    – Obtaining delegated authority to award the contract (within certain operational and financial parameters) before launching the procurement allowed the process to run efficiently without the risk and delay of obtaining further formal decisions later on.
    – Running Member workshops at regular intervals is a helpful way to provide transparency and keep Members on board with the process.
  • Finances
    – A rigorous affordability model of the status quo, setting out fixed assumptions, should be prepared at the earliest possible stage. It is the only way to know whether outsourcing will be an improvement.
    – Generating a Financial Response Template with fixed formulae for all bidders to fill in as part of their submissions is essential to allowing comparison between financial submissions.
  • Staff
    – Consultation with staff before and during the procurement process so they have a clear picture of what the implications are will make the TUPE transfer process much easier when it happens.
    – Consider the Data Protection implications of sharing staff data with bidders (anonymise at the tender stage) and with the winning bidder. If the outsourcing contract isn’t signed when data is shared, ensure a Data Protection Impact Assessment and a Data Sharing Agreement are in place.
    – Engage with your LGPS provider to determine the appropriate Contribution Rate. This is likely to change during the procurement and so keep bidders up to date.
  • Land
    – Identify land for new-build centre at an early stage and consult widely with residents, neighbours and other public bodies on matters such as access, traffic, utilities and other impacts.
    – Ensure land boundaries are clearly identified and clarify any boundary issues with the Land Registry and neighbours at an early stage.
    – Prepare your property searches, replies to enquiries and title reports early on so they can be disclosed to bidders at the start of the procurement.

Complex procurements require careful planning and close management. The expertise of professionals with experience of running these projects can be invaluable. For more information on leisure procurements from an in-house perspective, contact Louis Sebastian on louis.sebastian@nwleicestershire.gov.uk or 01530 454 770.

The Benefits of Land Registration

by Helen Lisney, Legal Assistant

Historically, all land in England and Wales was unregistered. Land was transferred by way of written documents which would need to be kept to prove ownership of land.

Since 1990, it has been compulsory to register land on any disposition. This means since this date, any property where ownership is transferred is now registered at the Land Registry on a central register.

Currently over 85 % of land in England and Wales is registered.

There are many benefits to ensuring that land in your ownership is registered. A number of these are set out below:

1. If land is not registered, then the only evidence of ownership is likely to be a bundle of old deeds and documents. In the event that the deeds were lost or destroyed it would be very difficult to prove ownership and obtain good title to the land. If land is registered at the land registry details of ownership are stored centrally. They can be obtained electronically from the Land Registry in a matter of seconds.

2. If you wish to transfer unregistered land it can be a long and drawn out process in reviewing the old title deeds (often these are handwritten and are very difficult to decipher). This can cause a delay in preparing any transfer documents, and the purchaser will also have to review the documentation, incurring additional costs for both parties. If land is registered, a title register and plan will be prepared. The title register contains all the relevant details of ownership, and any mortgage, together with any relevant information contained in the original deeds and documents such as covenants affecting the use of the land. The title plan shows the extent of the land contained in the title, are created and these contain all of the relevant ownership details. This will significantly reduce the amount of time it takes to review the title and reduce the costs involved with any conveyancing transaction.

3. Often in old title deeds, the plans bear very little resemblance to the land as it is now. E.g in the case of the District Council prior to registration we held deeds for a large number of properties that when purchased, were open fields/waste ground, which we subsequently built a large number of properties on. The title plans prepared by the Land Registry are based on larger scale Ordnance Survey maps. These can reflect the position on the ground far more accurately than the historic plans.

4. Once your title to the land is registered there is no need to retain the old deeds. All of the information is contained in the register and title plan and can be easily viewed online.

In view of the risks attached we strongly advise that any owner of unregistered land consider a voluntary registration of their title. This is particularly beneficial for public bodies such as Parish Councils, Local Authorities and Further Education Colleges. This will ensure that the title is in order and will avoid any potential difficulties should you wish to dispose of, grant a lease of, or even apply for some grant funding in relation to the use of the land.





Closure Orders, Anti-Social Behaviour and County Lines

by Louise Arnold, Regulatory and Enforcement Solicitor

What does County Lines mean?

County lines refers to the movement of gangs who are affiliated with drugs moving from large cities to small towns in order to expand their operations. This often results in violence to drive out members of the local community and the exploitation of young and vulnerable individuals, it can also lead to problems with cuckooing. (Cuckooing refers to the process by which a property – generally that of a vulnerable occupier, is taken over by drug gangs who use the property as a base for distribution. The occupier is often not aware of what is happening or too afraid to speak out.)

Tackling County Lines and Anti-Social Behaviour

In 2018 the North West Leicestershire Police, North West Leicestershire District Council (NWLDC) and other partners identified a link between drug activity and anti-social behaviour within the community. Intelligence sharing identified that individuals from Nottingham, Coventry, London and Leicester were being sent into the local community. This led to Operation Camel.

In September 2018 NWLDC and the Police set a new record for the number of closure orders obtained and executed in any one day.

In total Operation Camel has to date resulted in 14 closure orders, 11 evictions, 11 warrants and 19 arrests, providing a united message from each key authority that anti-social behaviour and drug related behaviour will not be tolerated within the local community and the protection of vulnerable individuals is a key priority.

What are Closure Orders?

Since October 2014 police and local authorities have had the ability to close premises which are associated with nuisance and disorder pursuant to part 4 of the Anti-Social Behaviour, Crime and Policing Act 2014 (ASBCPA 2014).

Anti-social behaviour is a significant and growing issue for local authorities and the wider public. The tools to tackle anti-social behaviour have been evolving over the last few years. Part 4 of the ASBCPA 2014 gives local authorities and the police powers to quickly close premises that are being used, or are likely to be used to commit nuisance or disorder.

There are two stages to the Act – stage 1 is a Closure Notice and stage 2 is a Closure Order.

Stage 1 – Closure Notices

Before exercising closure powers under the ASBCPA 2014 the Applicant (either a local authority or the police) must be satisfied that either;

  • the use of the premises has resulted, or if a closure order is not issued is likely soon to result, in nuisance to members of the public, or
  • there has been, or if a closure order is not issued is likely soon to be, disorder near those premises associated with the use of those premises, and
  • the closure notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring (Section 76 ASBCPA 2014).

Closure notices can be used as a preventative measure not just in cases of existing anti-social behaviour. For example, if police gathered intelligence to suggest that disorder was likely to occur in the vicinity of a nightclub on a specific night or over a specific period then they could issue a closure notice as a way of preventing the anti-social behaviour from happening.

Before issuing a Closure Notice the Applicant should make reasonable efforts to inform those living in, and anyone who has control or responsibility of, the premises that a Closure Notice is going to be served (section 76(6) ASBCPA 2014). In addition before issuing a Closure Notice the Applicant must consult any body or individual that they think it would be appropriate to consult. If the Applicant is the Police they should consult with the local authority and vice versa.

The information that should be contained in the Closure Notice is set out in section 76(5) ASBCPA 2014.

Stage 2 – Closure Orders

An application for a Closure Order must be heard in the Magistrates Court within 48 hours of the Closure Notice being served unless the Notice has been cancelled under section 78. The court needs to be satisfied that one of the following applies:

  • that a person has engaged, or if the Closure Order is not made is likely to engage, in disorderly, offensive or criminal behaviour on the premises
  • the use of a particular premises has resulted, or if the Closure Order is not made is likely to result, in serious nuisance to members of the public, or
  • there has been, or if the Closure Order is not made is likely to be, disorder near those premises associated with the use of those premises and
  • the Closure Order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring (Section 80(5) ASBCPA 2014).

A Closure Order prohibits access to the premises for the period specified on the Order – a maximum (initially) of 3 months. The 3 months can be extended, upon evidence, for a further (maximum) of 3 months. 

The introduction of the ASBCPA 2014 provided more flexibility by allowing the Order to prohibit access for everyone (i.e. a full Closure Order), for those named or for everyone but those named in the Order (i.e. a partial Closure Order)(Section 80(7) ASBCP 2014).

Once the Order has been made and served in accordance with the Act and the premises has been closed and secured a person commits an offence if they:

  • obstruct anyone serving a Closure Order or anyone trying to secure the premises, or
  • remain at or enter the premises subject to the Closure Order

The offender is liable on summary conviction to imprisonment, and/or an unlimited fine (Section 86 ASBCPA 2014).

Post Closure Order – Possession Proceedings

Within 3 months of a Closure Order ending an Applicant can apply to the court for possession under the Housing Act 1985, section 84(A), Condition 4 which is a mandatory ground.

NWLDC successfully relied on this mandatory ground to gain possession from all of the NWLDC tenants who were subject to Closure Orders.

The Partnership between NWLDC and the NWL Police

The Police and NWLDC’s Legal, Community Safety and Housing Teams worked closely and shared staff and resources to achieve the aims of Operation Camel.

The efficient and close working partnership has played a huge role in breaking the cycle and has produced a clear and united message that anti-social behaviour and drug related activity will not be tolerated in the District of North West Leicestershire.

I Agree to the Terms and Conditions

by Tom Pickwell, Trainee Solicitor

Most of us are guilty when it comes to seeing the box that says ‘I confirm I have read and agree to the terms and conditions’, of simply clicking it without paying much attention to it. However when doing it on behalf of a Local Authority, Education Institution or other company should we be wearier? The simple answer is ‘yes’. Whilst we get some protection ourselves as individuals from the Unfair Terms in Consumer Contract Regulations, there is less protection when acting on behalf of a business. In this article, some of the particularly onerous and dangerous clauses will be looked at as well as ways to protect ourselves and our businesses.

What actually are Terms and Conditions?

Terms and Conditions are the things that we agree to do and not to do when entering into some sort or agreement or contract. Whilst some of these will be very simple such as agreeing to pay the purchase price when we buy something, some terms are much less clear. Particular caution should be given to these as we may be binding our businesses into something that we don’t fully understand.

The Auto-Renewal Clause

This clause is mainly found in subscription or service based agreements and contracts, and can often be hard to spot. It may come under a duration, termination or other heading rather than on its own. This clause works as a type of ‘rolling contract’, and effectively starts a new contract after the previous one ends. Common terms may be that if the contract is not terminated 90 days before a certain date, it shall run again for the same amount of time as the original one.

The danger of this is that if you miss the date to terminate the contract, you are likely to be locked in again and have to pay up. It is therefore worth making a list of important dates of contracts and agreements when entering into them. Having a note of when to terminate and when the contract ends will ensure that you do not accidentally lock yourself in to something you don’t really want again.

The Penalty Clause

You may recall a previous article discussing penalty clauses in employment agency contracts in some detail and the same principles apply here. Often found around cancellation and termination clauses, a penalty clause is when a party has to pay a fee for doing something that is more than the cost of the loss.

If for example a contract to supply goods for the value of £100 has a clause stating that if the delivery is one hour late, a fee of £1000 shall be payable, the penalty appears to be more than a relative and reasonable foreseeable loss. The courts have recently however taken a more lenient approach and allows for some penalty clauses when the clause is ‘commercially acceptable’.

Termination Clause

When wanting to get out of or end an agreement or contract, this clause will state how to do it and how long it will take. Sometimes termination can take place by simply writing to the other party to let them know and that’s it, but often there will be notice periods that have to be given first and sometimes costs that have to be paid when terminating. Understanding this clause is therefore very important as getting out of something might not be anywhere near as easy as it was to get in.

Post-Termination Clauses

Even after an agreement or contract has ended, there may still be things that have to be done or things that cannot be done. A common example of this type of clause is a restraint of trade clause. This may be that after providing services to a company to do something, you are not allowed to offer the same services to another company within 100 miles for 3 years. Knowing and understanding how these restraints work and if they are enforceable is vital in making sure that you are not faced with big costs or being preventing from working even after you think the agreement or contract has ended.

Conclusion

From all of the examples given above, it is clear that there are a lot of traps in agreements and contracts that can have potentially severe financial consequences. When entering into agreements and contracts, it may be worth first checking with a solicitor or in house legal team before doing so. The small cost of spending some time double checking could save a lot more in the future!

If you are a public sector client and would like your contracts or agreements reviewed, drafted or even have a dispute, then contact the team at NWL Legal who will be happy to help.

Community Infrastructure Levy

by Sima Odedra, Principal Planning Solicitor

The Community Infrastructure Levy (CIL) is a planning charge that has been in force since 2010 via The Community Infrastructure Levy Regulations 2010 (“2010 Regulations”). It has recently been subject to a government consultation and the outcome of this consultation has resulted in the Community Infrastructure Levy (Amendment) (England) (No.2) Regulations 2019 (“2019 Regulations”) being laid before parliament on 4 June 2019. Subject to approval by parliament the 2019 Regulations will come into force on 1 September 2019.

At this stage the following amendments to the 2010 Regulations may be of particular interest to local planning authorities. This is not an exhaustive list as a number of other changes have also been made:

  • Being able to calculate CIL where a section 73 permission leads to an increase or decrease in CIL liability – Regulation 5.
  • Imposing a surcharge on developers if they fail to provide a commencement notice instead of CIL reliefs being lost – Regulation 6.
  • Inserting Regulation 121A and Schedule 2 which will require local authorities to publish an annual infrastructure funding statement setting out how much CIL is collected, how much is spent and what it is spent on for CIL charging authorities and similar provision in relation to planning obligations pursuant to section 106 of the Town and Country Planning Act 1990 – Regulation 9.
  • Inserting Regulation 121B requiring parish councils to report the amount of CIL receipts it has received – Regulation 9.
  • Amending Regulation 122 to allow provision for monitoring fees in section 106 agreements – Regulation 10.
  • Removing Regulation 123 which currently restricts the number of planning obligations which a local authority can enter into in relation to the funding of relevant infrastructure – Regulation 11.

Code of Conduct Training

by Rebecca Elliott, Contracts and Commercial Solicitor

The Legal Services Team has been out on the road delivering Code of Conduct training to Councillors across the District.

This has provided an invaluable opportunity for new and returning District and Parish Councillors to get up to speed with their obligations under the Code, in particular in relation to Pecuniary and Non Pecuniary Interests, Bias and Predetermination. Failing to comply with the code of conduct can have serious repercussions for Councillors, in some circumstances resulting in a criminal conviction, so it is important that Councillors know how they can ensure they are compliant.

The sessions so far having sparked interesting discussion, particularly in relation to bringing the Council into disrepute and when a Councillor is considered to be acting in their capacity.

Did you know we provide legal services to local authorities on a range of issues – please do not hesitate to get in touch!

Code of Conduct Training being delivered by Rebecca Elliott, Contracts and Commercial Solicitor

Assets of Community Value

The Localism Act 2011 introduced Assets of Community Value (formerly the community right to bid) with the idea behind it to give communities more involvement in the way local services are delivered. In essence, it gives community interest groups an opportunity to purchase local land that has been registered as having a community purpose. This article will look at the process from registering land as an asset of community value through to the landowner disposing of it.

What is an Asset of Community Value (ACV)?

Land of community value is land in a local authority area that is considered to be of value to the local people, for example village halls, churches and pubs. ‘Land’ can be open spaces but can also be buildings or part of a building. When land is placed on the ACV list, it places restrictions on the landowner when they want to sell it.

Who can apply to have land registered as an ACV?

Only a ‘community interest group’ can apply to their local authority to have land registered as an ACV. These groups can include a body designated as a neighbourhood forum, a parish council, an unincorporated body with at least 21 members, a charity, a company limited by guarantee, an industrial and provident society, community benefit societies or a community interest company.

How does a community interest group make an application?

A community interest group can apply to the local authority, nominating a piece of land and giving reasons why they believe it should be listed as an ACV. The local authority will then consider the application and will decide whether to include the land on its ACV list. If it does not, then the community interest group and landowner will be informed. If it does, then again the community interest group and landowner will be informed and the land will be placed on the list for 5 years. A restriction on the property title will be entered as well as a local land charge. The landowner does have a right to ask for the decision to be reviewed.

What if the landowner wants to sell?

When the landowner notifies the local authority of their intention to sell the ACV land, it will trigger a process. A 6 week period will begin in which before anything can happen, the nominating group or another community interest group can make known that they wish to be treated as a bidder. (If no intentions to bid are received then the landowner has an 18 month protected period from the date of notification in which to sell the land.) If a group decide that they do want to be treated as a bidder, the landowner has to wait 6 months from the date of notification to allow the community interest group to make an actual offer. The landowner does not have to accept the offer and the community group do not have to make a formal bid. After the 6 months, the landowner can chose who they wish to sell to (either the group or a private buyer) and they have 1 year after the 6 months to sell the land without any issue.

What happens if the landowner does not sell within that time?

The process restarts, and another 6 week period will begin.

What if the landowner sells the land without following the correct procedure?

If the landowner proceeds without following the correct procedure, the sale will be void and not recognised in law.

Departure from statutory consultee responses

The Secretary of State has recently dismissed an appeal against a refusal of planning permission for a site at Land at Ware Park, Wadesmill Road, Hertford, Hertfordshire (APP/M1900/W/17/3178839) on the basis that the proposed development would result in an unacceptable risk to a public drinking water supply, amongst other reasons.

The appeal was made against the decision of Hertfordshire County Council pursuant to an application to extract sand and gravel from the proposed development site over a period of 10 years, with phased restoration and aftercare for five years. As well as Hertfordshire County Council a local resident’s action group also opposed the appeal on the ground that although the appellant acknowledged that without adequate mitigation the proposed development posed an unacceptable risk of pollution to an important watercourse, the appellant failed to show adequate mitigation measures would be provided. Both the residents action group and the council were not satisfied that the mitigation measures proposed by the appellant would not cause a risk that could be avoided if the appeal was dismissed.

The appellant heavily relied on the response of the Environment Agency, a statutory consultee to the application, who raised no objections to the application and the case of Shadwell Estates Ltd v Breckland DC [2013] EWHC 12 (Admin) where it was held that cogent and compelling reasons would be required if the decision maker sought to depart from the views of a statutory consultee. In response it was argued that there were cogent and compelling reasons to depart from the Environment Agency’s response on the basis that the Environment Agency did not have the expertise to carry out necessary enquiries into the mitigation measures proposed, and witness evidence heard at the Inquiry provided reasons to move away from the Environment Agency’s response.

The Inspector dismissed the appeal on the basis that, amongst other reasons, there was no convincing reason to support the assumptions made by the appellant for the schemes mitigation proposals. In the Inspectors view the assumptions made by the appellant could not reasonably be relied on given the doubt raised on the methodology for the mitigation proposals. Further uncertainty was cast on the proposals given that the Environment Agency could not provide any assistance with the appellants assumptions nor the way in which they were reached either. As such, the current scheme as it was would pose an unacceptable risk to an important public water supply.

Impact on decision making authorities

This decision highlights the importance in carefully analysing the responses of statutory consultees alongside proposals made by the applicants. Even where statutory consultees have raised no objections to an application, decision makers can depart from their views provided there are cogent and compelling reasons to do so.

Three ways through the labyrinth of functions and responsibilities

Louis Sebastian

By Louis Sebastian, Team Manager, NWL Legal

Changes brought in by the Local Government Act 2000  and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 were designed to streamline local authority decision-making by mimicking central government, but they created a labyrinth of responsibilities that Councils are still struggling to negotiate.

By putting the power for specified decisions in the hands of council Executives it was intended that there would be fewer layers of authority to negotiate before getting to a conclusion, and greater accountability.

This was a reasonable proposition, but as with any reorganisation, new complexities have been created, and many local authorities still struggle with correctly allocating functions and responsibilities. That matters because an error in specifying who should take a given decision could lead to that decision being challenged and overturned.

How did we get here?

Councils themselves have certain powers exercised through full Council meetings, and they have others that fall to a Leader or elected Mayor and their Cabinet. What the 2000 Regulations do is state how powers are split between the two. Some can only be exercised by the full Council and some by the Executive, and certain powers are shared so Cabinet makes proposals that are ratified by the full Council. It was an exercise in making local government look like national government to split up decision making to ensure some accountability. Of course, as the party with a majority gets to form the Cabinet and controls the Council, the difference looks somewhat academic, particularly from a political standpoint. What is important, however, is that decisions are made in the proper place, otherwise they could be challenged.

Local authorities know this, but it is often far from clear what decisions, or even what aspects of certain decisions, should be processed where. I am often asked, “Is this a Council or an Executive decision,” by local authorities who are naturally keen to avoid decisions being challenged down the line for having been made improperly.

There have been a few cases of that happening. Just because it hasn’t happened to a Council yet doesn’t mean the process is being done well. It could have been done incorrectly for a long time without being noticed until someone wants to challenge a particular decision. It often happens in a planning situation because a lot of planning powers are contained on the Council side of the fence and delegated to officers (who also carry out executive functions). If it starts looking like the Cabinet are making the decisions, developers have enough at stake – and deep enough pockets – to mount a challenge.

One problem area is when a local authority makes a changes to its Budget in-year without getting the decision ratified by the Council. Delivering on the Budget is the Executive’s responsibility with support from all the Officers in the Council, but decisions about the Budget have to be approved by the full Council. If for example, a Council is outsourcing its leisure centres, deciding to award a contract to a particular supplier only needs to be decided by the Executive but because it’s such a big contract it affects the Budget so the Council has to approve the changes that impact the Budget. This is an example of a decision that spans both functions.

If you are not switched on and thinking of the big picture, you could be caught out. Outsourcing is always contentious. It increases the risk of a challenge. Equally, it is not the full Council’s job to award the contract or to decide to award the contract. So Officers need to report differently on the matter to the Cabinet and the Council because each only has the power to approve different elements of the overall decision.

The confusion that many Councils have with the Regulations comes from a sense that there is a waterfall of authority with powers coming from statute and trickling down. Local authorities are creatures of statute so that’s an idea that it’s hard for them to change. But instead of from statute to council to cabinet to officers, the flow of power is actually from statute to council or cabinet and from that stage to officers.

So, for example, a council’s CEO could find him or herself executing two functions from two different bodies related to the same overall matter.

Three keys to unlocking the challenge

In my experience of helping local authorities review their approach to functions and responsibilities under the 2000 Act, there are three areas where you nail down the principles in practice.

  1. A written delegation of powers: The way to avoid problems on a day-to-day basis is to have a clear and written delegation of powers that forms part of your constitution. So if you are a senior Council officer, you know where the power for any given decision rests – whether it’s a Council or Cabinet power – and whether or not you have the authority to make decisions using that power. This may be the case if certain decisions have been delegated to an officer of appropriate seniority. Higher profile or higher value decisions will be retained by the Council or Cabinet.
  1. Establish the delegation thresholds: It’s important to set out what the thresholds are in terms of value or profile (political sensitivity or geographic reach) so that officers know when they can take decisions and when to refer them to the Cabinet or Council or both.
  1. Interpretation of the Regulations: Pay close attention to tricky questions or decisions. How you decide to interpret the Regulations will help to set a protocol for similar awkward situations in future so it’s important to get it right.

In my experience of providing guidance to local authorities, it can help enormously to get a third party, expert opinion on individual questions, and to work with consultants to carry out reviews of how delegation is happening and identify any problems. Third party expertise is also useful when drawing up, or updating, written delegation of powers documents.

 

Penalty Clauses in Employment Agency Contracts

Councils that recruit interim staff through employment agencies need to be aware of possible penalties payable if staff are taken on permanently.

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