An update from NWL Legal

by Meera Patel, Trainee Solicitor

The Coronavirus is giving rise to the need to adapt the way in which local authorities currently work to meet the unique challenge the pandemic presents.

North West Leicestershire Legal are still available to provide up to the minute, practical advice on the usual services we cover and as a result of the pandemic, the latest developments in a range of areas; key legal changes, advice that has been issued in the areas of governance, procurement and state aid.

Some recent changes and guidance provided below;

We are keen to keep in touch and hear how clients are maintaining operations during this unprecedented time. Please contact us if you require any support. We are still working remotely and fully accessible in aiding legal advice.

Benefits of Public Service Legal Work

by Meera Patel, Trainee Solicitor

Furthering the Public Good

One of the main and most important reason why lawyers work in house for local authorities is because it gives them an opportunity to become involved in decisions affecting their local community.

As an in-house local authority lawyer you support an important public cause – equal access to justice for local people and groups. Such a cause can provide a feeling of personal satisfaction and achievement that you might not gain defending large corporations in the private practice sector.

Better Work Life Balance

I have worked for the public sector for six years and not all of those in the legal sector. One of the most important attributes for me and a key decision why I applied for training contracts within local authorities was because of the emphasis on a work life balance for all employees.

There are no fixed nine-to-five work days. Employees have flexible schedules and opportunities to work from home and/or part-time hours. Such practices are common for in-house public sector lawyers, especially those at North West Leicestershire District Council.

Public sector government lawyers are not under the same pressure as private practice lawyers to meet high billable hours or fee targets. The work culture is often more relaxed as the focus is on providing a solution based service rather than profit.

Valuable Experience and Training Mentoring and Networking Opportunities

As a Trainee Solicitor at North West Leicestershire District Council, an authority that is a part of the East Midlands Lawshare consortium and has valuable connections with other local authorities, fire & rescue authorities, universities, national parks, NHS trusts and town and parish councils, I have had a lot of exposure to training opportunities, networking events and mentoring opportunities. Such opportunities have helped me to build relations with a number of professionals including public sector lawyers and lawyers within private practice, whom I can turn to for advice and are readily available to provide training and support.

The lawyers at North West Leicestershire District Council have the support of senior staff to attend training sessions both within the EM Lawshare framework and other private companies to further their professional development.

Whilst working at North West Leicestershire District Council I have had the pleasure of working closely with team members to market our services externally given the current clients’ needs and having to be more commercially driven. NWLDC have been very forward thinking in their approach as a Local Authority and implemented NWL Legal to ensure that we are meeting the needs of our clients whilst understanding the remits we work within.

Do I Need a Public Consultation?

This note provides guidance to Officers on when they should carry out a public consultation when they are making changes to services or implementing a project. It also sets out the principles that need to be followed in order for a consultation to be appropriate and lawful.

Do I need to consult?

There are three stages to this question:

1. Is there a specific duty to consult that is set out in the legislation and/or statutory guidance that I am working under? For example consultation is required on:

a) the Council’s proposed budget (Local Government Finance Act 1992)

b) Matters of Housing Management (s105 Housing Act 1985)

c) Public Sector Equality Duty (s149 Equality Act 2010)

If a consultation is required, the people specified in the legislation as needing to be consulted must be consulted.

2.Does the “Best Value” duty to consult apply? Under s3 of the Local Government Act 1999 and Best Value Guidance, a consultation is needed if:

a) the Council is making changes (and in particular reductions) to the services being delivered;

b) the Council is reducing or ending funding to an external organisation

If a consultation is required then representatives of tax/rate payers, services users and interested parties must be consulted.

3.Is a consultation needed in the interests of fairness? For example:

a) Have we previously said that we would consult before doing something?

b) Have we consulted in the past before doing the same thing?

c) Will the impact of the decision or project be particularly serious on one location or section of the public?

d) Is this a significant change to the way the Council has done things in the past?

If a consultation is needed, the affected people or bodies need to be consulted.

What makes a good (and lawful) consultation?

The Courts have given some guiding principles to follow in order to ensure a consultation is satisfactory. These are known as the Gunning Principles[1].  These principles are:

a) The consultation must be at a time when proposals are still at a formative stage. It must not be a “box-ticking exercise” which cannot impact on the decision being made.

b) The proposer must give sufficient information to allow intelligent consideration and response.

c) Adequate time must be given for consideration and response.

d) The product of consultation must be conscientiously taken into account in finalising any decision proposals.

[1] R v London Borough of Brent, ex p Gunning [1985] LGR 168

Do I Need an Officer Decision Record?

by Louis Sebastian, Legal Services Team Manager and Deputy Monitoring Officer

I am often asked by officers carrying out Council business whether they need to complete an Officer Decision Record (ODR). This article looks at what an ODR is and when it is needed.

What is an Officer Decision Record?

ODRs come from the Openness of Local Government Bodies Regulations 2014 (Reg. 7) which deals with the recording of decisions made by local government officers on behalf of their council. The regulations state that decisions need to be recorded when:

  1. The Decision would have otherwise been taken by the relevant government body, to committee, sub-committee etc. but has been delegated to an officer; and
  2. The decision is to
    a. Grant a permission or licence;
    b. Affects the right of an individual; or
    c. Award a contract/incur an expenditure which matierally affects that relevant local government body’s financial position

The ODR must contain the following information:

i. the date of the decision;
ii. a description of the decision with reasons for taking it;
iii. details of alternative options, if any, considered and rejected; and
iv. if the decision is taken under a specific, express delegation by a committee, the names of any member of that committee (if any) who declared of interest in relation to the decision.

The key content of a notice is that it contains the reasons for the decision.

When do I need one?

Matters covered by 1. are relatively self-explanatory. In short this includes all decisions made by officers on behalf of the Council. This will cover pretty much everything so it is the limbs of 2. that will determine whether an ODR is needed.

Granting a Permission or a Licence
Where a permission or licence is granted by the Councils (for example Planning Permission, Taxi Licence or Premises Licence), a written record must be made. However, where the legislation under which the licence in granted requires a written record setting out the date and details of the decision, no additional ODR is needed.

Affecting the Right of an Individual
This varies depending on the situation but there is some guidance from case law. The leading case is the Newey case in which a decision that led to the erection of scaffolding and plywood in front of a neighbouring property which blocked light into the property for 60 weeks was held to affect the rights of an individual. We are therefore talking about decisions that have quite significant impacts on the rights of individuals. More common examples might be the decision to erect a new CCTV camera in a particular place or the decision to adopt a Neighbourhood Plan following a referendum.

Award a Contract/Incur Expenditure
There is no case law or guidance as to what amount or what type of spending constitutes a material effect on that council’s financial position and is it is up to each local authority to form its own – reasonable – view. North West Leicestershire District Council’s approach is to look at the financial authorisation thresholds in its Contract Procedure Rules. NWLDC has decided that contracts/expenditure which require approval from Team Manager level or above (i.e. £10,000 or more) constitutes a “material effect” and so require an ODR.

The flowchart below summarises the ODR thought process at NWLDC.

Accelerated Planning Green Paper

by Meera Patel, Trainee Solicitor and Sima Odedra, Senior Solicitor

The Government seeks to implement procedural improvements to accelerate the time taken to make decisions on planning applications. The Green Paper will set out proposals for improving the process for granting planning permissions and, in doing so, the service provided to both homeowners and commercial developers.

In particular the Green Paper will look at solutions for speeding up the decision-making process for planning applications, as well as taking into account the recent review of the planning appeals process which made recommendations to reduce the time taken to conclude planning appeal inquiries. 

So what are some of the proposals and future benefits?

  • The implementation of a new tiered planning system which will help simplify the current out-dated system. This efficient system will allow for a user friendly approach making it a faster, fairer system which works for both homeowners and businesses alike
  • Work alongside the vision of reducing the carbon footprint and in turn cut emission in new homes by 2025. New homes will be introduced with the latest generation of technology including air source heat pumps and cutting edge solar panels reducing carbon emissions in new homes by 80% and lowering household energy bills
  • Review application fees so that council planning departments have the resources they need to provide up to date high quality decisions within a reduced timeframe, for instance by allowing more qualified planners to process applications for new homes and other proposals
  • Refund more fees if councils take too long in making a decision on certain types of planning applications in an attempt to encourage councils to work faster and more efficiently
  • Reduce the number of planning conditions by a third given that planning conditions are sometimes perceived as slowing up the planning process
  • To consider allowing homes to be built above existing properties so that the governments initiative to increase the housing supply by 2020 is met
  • To consider demolishing old commercial buildings allowing for new housing to be developed in its place and revamping high streets

The Accelerated Planning Green Paper will be published sometime in November 2019. The question at the moment is how the government’s proposals will come to fruition.

Managing Risk

by Elizabeth Warhurst, Head of Legal and Commercial Services and Monitoring Officer

Our Head of Legal and Commercial Services and Monitoring Officer was approached by The Law Society to discuss North West Leicestershire District Council’s approach to risk. In the article linked below, in a question and answer style, Elizabeth explains how you can educate your organisation on, and how to adapt to its perception of risk.

Click here to read the article.

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.