Departure from statutory consultee responses

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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

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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

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New IR35 Rules and Public Sector Duty to Enforce

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In 2017, the government implemented new rules that apply to public bodies who use consultants to fulfil internal roles. The purpose of the new rules is to ensure that consultants pay the correct income tax and National Insurance Contributions and do not avoid paying them by contracting through a limited company and paying themselves in dividends.  Read more