Second bites at the (Planning Enforcement) cherry.

The Administrative Court (David Elvin QC sitting as a deputy judge of the High Court) has rejected the argument that an enforcement notice that was issued without proper delegated authority does not constitute "purporting to take" enforcement action for the purposes of s.171B(4)(b) of the Town and Country Planning Act 1990.

In a judgment delivered on 4th October he decided in the case of Lambrou v. Secretary of State for Communities and Local Government (CO/4693/2012) that the phrase “or purported to take” in s.171B(4)(b) should be given a broad meaning, consistent with its ordinary usage, so as to encompass the issuing of an enforcement notice that later turned out to be ultra vires.

Section 171B(4)(b) provides, so far as material: 

“The preceding subsections do not prevent—…(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach”.

In this particular case the local planning authority issued an enforcement notice in 2006 on the ground that the appellant had converted a dwelling into flats (the 2006 Notice). 

Thereafter in 2008, under delegated authority, the local planning authority issued three further enforcement notices (the 2008 Notices). The first two notices of 2008 were withdrawn before the issue of the third (the Third Notice) although all of these notices had been materially identical. 

The appellant's appeal against the the Third Notice was dismissed. It was not complied with and the appellant subsequently convicted of its breach. Thereafter he was successful in his appeal against conviction on the ground that the Third Notice was not duly authorised. 

The local planning authority withdrew the Third Notice and then issued a further notice in 2011 (the 2011 Notice). An inspector for the defendant Secretary of State upheld the 2011 Notice, on the basis that  the local planning authority was entitled to rely on any of the 2008 Notices and the 2006 Notice for the purpose of an extension of time under s.171B(4)(b). 

The appellant appealed on the basis that: 

• the authority could not rely on the 2008 Notices to obtain an extension of time under s.171B(4)(b), as they were not "purported" enforcement action given their invalidity;
• the successful appeal against his conviction precluded such a finding; and 
• the third notice had been issued without authority. 

The parties agreed that the appellant's success or failure turned on the ability of the local planning authority to rely on an extension of time under s.171B(4)(b). It therefore fell to be determined whether the inspector had been entitled to find that the local planning authority had purported to take enforcement action within the previous four years under s.171B(4)(b).

In dismissing the appeal the court held that on its proper construction, something "purported", under s.171B(4)(b), might not be actual, but might be false or invalid. Such a broad interpretation accorded with the plain intention of Parliament to include a local planning authority acting in the public interest when failing to do what it had attempted to do and it encompassed the situation where an enforcement notice was invalid. It was necessary to approach the issue under s.171B(4)(b) without technicality. A "purported" enforcement was not confined to a misdescription and there was no reason Parliament had intended to exclude a legally invalid or ineffective notice, if it had been an attempt at enforcement action by the authority.

The court took the view that on the facts, it was impossible to hold that the local planning authority had not "purported" to take enforcement action by the Third Notice or the other two notices of 2008. The inspector had been correct in his view. His conclusion that he had not been precluded from his finding due to the appellant's successful appeal against conviction had been reasonable and could not be faulted in law. Furthermore, the authorisation given to the officer in 2008 had been valid to cover all of the 2008 Notices. Accordingly, the inspector had not erred in upholding the 2011 notice.

Appropriation of land for planning purposes

There has, in the context of the ongoing housing crisis, been much talk recently of sites with the benefit of planning permission not being built out. So-called "land banking". 

And politicians of all persuasions have weighed into the debate about the best way to deal with this. Indeed, the Mayor of London, Boris Johnson, and the Leader of the Opposition, Ed Milliband, have both suggested that landowners of such land which did not use the planning permission should lose it together with the land itself and that the land and permission could be given to a developer who would do so. 

This would of course require  specific powers of acquisition to address just such circumstances. But there are many other powers open to a local planning authority to appropriate land for planning purposes. 

Background 

If a local authority acquires land for a statutory purpose, it must hold the land for that purpose until it either appropriates or disposes of the land in accordance with its statutory powers. "Land appropriation" in this context means transferring the use of land from one purpose to another. 

When it comes to planning, a local authority may:

• Appropriate land for planning purposes under s.122 Local Government Act 1972 (LGA’72) ,
• Develop land held for planning purposes under s.235 Town and Country Planning Act 1990 (TCPA’90),  
• Dispose of land held for planning purposes under s.233 TCPA’90, 
• Override easements and rights in land appropriated for planning purposes under ss.237 to 242 TCPA’90, and 
• Acquire and allocate land for specific purposes, including for the purposes of planning e.g. purchase or lease land for public recreation (s.164 Public Health Act 1875), acquisition of land for the construction of housing (s.17 (1) (a) Housing Act 1985), acquisition of land for the construction of highway (s.239 Highways Act 1980).

A general power to appropriate land is by s.122 LGA’72 conferred on principal councils (defined in s.270 LGA’72 as including a non-metropolitan county council, a district council, a London borough, or in relation to Wales a county or county borough). Where land belonging to a principal council is no longer required for the purpose for which it is held, the council may appropriate it for any other purpose for which it is authorised by statute to acquire land.

An example of such an authorisation is s.227 TCPA’90, which authorises a principal council to acquire land by agreement for "planning purposes" which has no statutory definition. Instead, s.246 (1) TCPA’90 states that reference to the appropriation of land for planning purposes means reference to any purpose for which land can be acquired under one of the following:

• S.226 TCPA’90 (power to compulsorily acquire land for development and other planning purposes).
• S.227 TCPA’90 (corresponding power to acquire land by agreement for the purposes set out in s.226 TCPA’90).
• S.52 Planning (Listed Buildings and Conservation Areas) Act 1990 (power to acquire a listed building of special architectural or historic interest and any land adjacent to the building that is required for its preservation or for access).

A principal council can only appropriate land under s.122 (1) LGA’72 if the land is no longer required for the purpose for which it is currently held. In reaching this decision, the council must consider the public need within the area for the existing use. The council's decision cannot be challenged unless it was made in bad faith or if it was a decision that no reasonable authority could possibly have taken (see, for example, Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) [1973] 2 All ER 491 where the court held that the local authority was the sole judge of whether land used as a municipal aerodrome was no longer needed and should be appropriated for housing).

Special categories of land

The general power to appropriate land under s.122 LGA’72 does not apply to common land, fuel and field garden allotments (allotment land) over a certain size. 

By virtue of s.336 (1) TCPA’90: 

• Common land is land that is required to be enclosed under the Inclosure Acts 1845 to 1882 and any town or village green.
• A fuel allotment is an area set out under the Inclosure Act 1845 with the object of providing fuel in the form of peat or turf. 
• A field garden allotment is a plot of land set out as a field garden under s.31 of the Inclosure Act 1845.

Under s.122 (2) LGA’72, a principal council can only appropriate common or allotment land if both of the following conditions are fulfilled namely that the total area of the land appropriated does not exceed 250 square yards (209 square metres) and the council advertises its intention to appropriate such land for two consecutive weeks in a newspaper circulating in the local area, and considers any objections to the proposed appropriation.

The appropriation of any larger area of common or allotment land is regulated by s.229 TCPA’90, which requires a local authority to make an order appropriating the common or allotment land and to submit the order to the Secretary of State for confirmation.

Confirmation of an appropriation order made under s.229 TCPA’90 will be subject to special parliamentary procedure unless the Secretary of State certifies, under s.19 Acquisition of Land Act 1981 (ALA’81), that either equally advantageous land of at least the same size will be provided in exchange for the appropriated land; that the land is being appropriated to secure its preservation or improve its management; or that the land does not exceed 250 square yards (209 square metres) in area or is required for the widening and/or drainage of an existing highway, and that it is unnecessary to give other land in exchange.

Before issuing a certificate under s.19 of the ALA’81, the Secretary of State must direct the local authority to give public notice of his intention to issue a certificate; consider any objections made in response to the notice; and arrange for a public local inquiry in any case where it appears to him to be expedient to do so, having regard to any representations or objections made in response to the notice, and consider the report of the inspector appointed to such inquiry.

If a local authority proposes to make an order to appropriate common or allotment land under s.229 (1) TCPA’90 and to submit an application for a certificate under s.19 ALA’81, it should simultaneously submit the draft appropriation order to the National Planning Casework Unit (NPCU) which is responsible for confirming orders under s.229 TCPA’90 on behalf of the Secretary of State; and submit an application for a certificate under s.19 ALA’81 to the Common Land Casework Team at the Planning Inspectorate which is responsible for processing applications for a certificate on behalf of the Secretary of State.

In the event that an appropriation order under s.229 (1) TCPA’90 is subject to special parliamentary procedure, any confirmation of the order by the Secretary of State would be made subject to the Statutory Orders (Special Procedure) Acts 1945 and 1965. In summary, special parliamentary procedure means that following the Secretary of State's decision to confirm the appropriation order, the order is laid before Parliament, after giving three days' notice in the London Gazette; if a petition of general objection or amendment is lodged within a 21 day period, it will be referred to a joint committee of both the House of Commons and the House of Lords to consider and report to Parliament about whether to approve; and if no petition is lodged, the confirmation is usually approved without such referral.

A principal council can appropriate land consisting or forming part of an open space under s.122 (2A) LGA’72. There is no limit on the size of the open space area that can be so appropriated. Open space is defined in s.336 (1) TCPA’90 as any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground. 

Before appropriating open space land, a council must by virtue of s.122 (2A) LGA’72 advertise its intention to appropriate open space land for two consecutive weeks in a newspaper circulating in the local area; and consider any objections to the proposed appropriation.

If a principal council appropriates open space land under s.122 (2A) LGA’72, it is released from any trust for the enjoyment of the public imposed by s.164 Public Health Act 1875 or s.10 Open Spaces Act 1906 (s.122 (2B), LGA’72).

Appropriation for Planning Purposes

S.226 TCPA’90 authorises a local authority to acquire compulsorily any land in their area for planning purposes. 

This acquisition can take place if the local authority thinks that the acquisition will facilitate the carrying out of development, redevelopment or improvement on or in relation to the land or the proposed development, redevelopment or improvement is likely to contribute to achieving the promotion or improvement of the economic, social or environmental well-being of the whole, or any part, of their area in the interests of the proper planning of an area in which the land is situated.

A decision to appropriate land for planning purposes under s.226(1) TCPA’90 must indicate which of the two alternative purposes is being exercised (DCLG: Circular 06/04: Compulsory Purchase and The Crichel Down Rules (October 2004), Appendix A, paragraph 4).

The use of the words "on, or in relation to" in s.226 (1) (a) means that the scheme of development, redevelopment or improvement for which the land needs to be acquired does not have to take place on the appropriated land so long as its appropriation can be shown to be related to the successful implementation of the scheme (see Appendix A, paragraph 5).

The well-being benefits in s.226 (1A) encompass cultural well-being and the promotion or improvement of the health of local authority's residents, or visitors to the area (see DCLG: Power to promote well-being of the area: statutory guidance for councils (February 2009)) and there must be a connection between the well-being benefits derived under s.226 (1A) and the permitted development, redevelopment or improvement (see R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] UKSC 20).

An authority may appropriate land under s.226 (1) (b) only where it is "required" for a specified purpose. The High Court has upheld the use of the s.226 (1) (b) power where the purpose was to prevent inappropriate development (unauthorised development by travellers) on land that, in the opinion of the local planning authority, should not be left in a derelict or neglected state but put to a suitable use (see Sharkey v Secretary of State for the Environment [1990] 2 EGLR 191). The court accepted the Secretary of State's view that this aim was in the interests of the proper planning of the area. When the Court of Appeal heard the same case, it held that the word "required" in s.226 (1) (b) means more than "convenient" and less than "indispensable"; it means "necessary in the circumstances of the case" (see Sharkey v Secretary of State for the Environment [1992] 63 P and CR 332). 

Under s.226 (3) TCPA’90, a local authority may also acquire compulsorily (and therefore appropriate) any adjoining land which is required for the purpose of executing works for facilitating the development or use of the primary land or land to be given in exchange for any of the primary land which is common land to be appropriated under s.229 TCPA’90; open space land; or fuel or field garden allotment land.

If a local authority appropriates land for planning purposes, it can by virtue of s.235 (1) TCPA’90 in relation to that land erect, construct or carry out any building or work unless an alternative statutory power exists for such work under another statute; repair, maintain and insure any buildings or works on such land; and generally deal with such land in a proper course of management.

It is not a precondition to the appropriation of land for planning purposes that the local authority undertakes any subsequent development of the land themselves (see s.226 (4) TCPA’90). Land may also be appropriated for the purpose of being sold or leased to the private sector under s.233 TCPA’90.

I do not propose dealing in this piece with compulsory acquisition under the Development Consent regime contained in the Planning Act 2008 which deals with nationally significant infrastructure projects.

Disposals

Under s.233 (1) TCPA’90, a local authority can dispose of land appropriated for planning purposes to such person, in such manner and subject to such conditions as appear to the local authority to be expedient to secure either: the best use of that or other land and any buildings or works which have been, or are to be, erected, constructed or carried out on it (whether by the authority or by any other person); or the erection, construction or carrying out on it of any buildings or works appearing to the authority to be needed for the proper planning of its area. 

A disposal of land under s.233 TCPA’90 includes a sale of the freehold interest, granting a lease, assigning any unexpired term of a lease or the granting of easements.

A local authority must, by virtue of s.233 (3) TCPA’90, dispose of the land for the best consideration it reasonably can obtain, unless the Secretary of State consents to the disposal although disposals by way of a short tenancy are exempted from this rule. Consideration in the context of a disposal of land under s.233 TCPA’90 means the price payable for the land. 

The Secretary of State cannot give a general consent for the disposal of land held for planning purposes at less than best consideration under s.233 TCPA’90, so local authorities must apply to the Secretary of State each time this consent is required. 

However, in England only, the Secretary of State can, by virtue of s.233 (3A), TCPA’90, as inserted by the Growth and Infrastructure Act 2013 (GIA’13), give consent, either unconditionally or subject to conditions, in relation to particular disposals or a particular class of disposals; or local authorities generally or local authorities of a particular class. A local authority should apply for consent to the NPCU, who will review the application on behalf of the Secretary of State.

The consent of the Secretary of State is also required to the disposal of land which is or was common land and which is held or managed under a local act. A local authority should apply for consent under s.233 (2) TCPA’90 to the NPCU, who will review the application on behalf of the Secretary of State. This application could be submitted alongside an application for confirmation of an appropriation order under s.229 of the TCPA’90, where the intention is to appropriate common land for planning purposes and then sell or lease such land to a developer.

Before disposing of any land consisting of, or forming part of, an open space, a local authority must under s.233 (4) TCPA’90 both: advertise its intention to dispose of the open space land for at least two consecutive weeks in a newspaper circulating in the local area; and consider any objections to the proposed disposal.

Where the intention is to appropriate open space land for planning purposes and then to sell or lease such land to a developer, a local authority could run advertisements required under s.122 (2A) LGA’72 and s.233 (4) TCPA’90. 

If the local authority has appropriated land for planning purposes for a reason mentioned in s.226(1) (a) or (3) TCPA’90, the power of disposal set out in s.233 TCPA’90 must be exercised to provide the occupiers of this land, "so far as may be practicable", the opportunity to relocate on such land if the occupier:

• Was living or carrying on business or other activities on the land.
• Desires to obtain accommodation on such land.
• Is willing to accept the authority's requirements as to the land's development and use.

The High Court has construed the term "so far as may be practicable" narrowly, holding that the words mean that it is for the local authority to decide whether or not it is practicable (see A Crabtree and Co v Minister of Housing and Local Government (1965) 17 P and CR 232).

Easements

A local authority can override easements and other rights in land that has been appropriated for planning purposes under s.237 of the TCPA’90.

The local authority is authorised to erect, construct, or carry out or maintain any building or work on land that has been acquired or appropriated by it for planning purposes, or use such land (provided there is planning permission), even if that work or use involves either of the following:

• An interference with an easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.
• A breach of a contractual restriction on the use of the land.

This power to override rights extends not only to the local authority, but also to any person deriving title under them following a disposal under s.233 TCPA’90. The owner of any such third party right will have a claim for compensation, which will be assessed on the basis of the loss in value of the claimant's land as a consequence of the interference or breach. If a person deriving title under an appropriating authority fails to pay compensation due under s.237 (4) TCPA’90, the liability can be enforced against the appropriating authority. 

The power to override easements and other rights in land appropriated for planning purposes is subject to s.237 (3) of the TCPA’90. This prohibits interference with any right of way, or right of laying down, erecting, continuing or maintaining apparatus on, under or over land which is one of the below:

• A right vested in, or belonging to, statutory undertakers for the purpose of the carrying on of their undertaking.
• A right conferred by, or in accordance with, the electronic communications code, or the operator of an electronic communications code network.

S.271 of the TCPA’90 provides a procedure for resolving conflicts between statutory undertakers and an appropriating authority, where the undertaker has apparatus on, or rights relating to, land that has been appropriated for planning purposes. 

Under s.271 (2) of the TCPA’90, if the appropriating authority is satisfied that the extinguishment of the right or the removal of the apparatus is necessary for the purpose of carrying out any development of the appropriated land, the authority can serve notice on the statutory undertaker either:

• Stating that at the end of the relevant period, the right will be extinguished (s.271 (2)(a)).
• Requiring that before the end of the relevant period, the apparatus must be removed (s.271 (2)(b)).

“Relevant period” in this context means the period of 28 days from the date of service of the notice, or any longer period as may be specified in it, for that right or apparatus.

If the statutory undertaker objects to the notice, the appropriating authority can apply to the Secretary of State and the appropriate minister, for an order confirming the provisions of the notice, with or without modification.  The appropriate minister will be either the Secretary of State for Transport, the Secretary of State for Trade and Industry or the Secretary of State for Communities and Local Government, depending on the nature of the undertaking.

A statutory undertaker is entitled to be compensated for the extinguishment of any rights or the imposition of any requirements under s.271 of the TCPA’90. The amount of compensation may include: costs reasonably incurred in acquiring the land and carrying out any necessary works pursuant to the requirements (s.280 (2) (a), TCPA’90); loss of profits (s.280 (2) (b), TCPA’90); and expenditure reasonably incurred by the statutory undertaker in removing apparatus (s.280 (2) (c), TCPA’90). A statutory undertaker can also choose to instead take compensation on the basis of a reduction of the value of the interest in the land, in accordance with the normal land compensation rules (s.281, TCPA’90).

Consecrated land 

Consecrated land (other than a burial ground) can be appropriated for planning purposes under s.122 of the LGA’72 but restrictions are imposed on its subsequent use by ecclesiastical law.

Any restrictions imposed by ecclesiastical law on the use of such land can be overridden by any person under s.238 of the TCPA’90, if both of the following apply that is to say the land is put to use by that person in accordance with planning permission; and the prescribed requirements have been complied with.

The prescribed requirements are contained in the Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950 (the Regulations), which provide that:

• No consecrated land may be used for any purpose by the appropriating authority, so long as any church or other building previously used for religious worship (or any part of such building) remains on the land, without the consent of the bishop of the diocese (regulation 3(1)).
• The use of the land may be restricted (regulation 3(a)).An opportunity must be provided for the removal of fittings and fixtures (regulation 4). 
• The church registers must be forwarded to the Registrar General (regulation 5).
• Requirements must be observed in the removal and re-interment of human remains and the disposal of monuments and tombstones (regulations 7 to 17).

Burial grounds

Restrictions are also imposed by ecclesiastical law on the use of burial grounds. These restrictions can be overridden by any person under s.239 of the TCPA’90, subject to both; the requirement that the land is put to use by that person in accordance with planning permission; and the requirements contained in the Regulations as to the removal and re-interment of human remains and the disposal of monuments are met.

Common land, open space and allotment land

S.241 (1) of the TCPA’90 provides that any common land, open space land, or fuel or field garden allotment appropriated by a local authority for planning purposes may be used by any person in any manner in accordance with planning permission, notwithstanding any provision contained in any other statute.

The expression "use" is widely defined under s.246 (3) of the TCPA’90 for the purposes of this section so as to include building and maintenance works.

This provision overrides the protection given to land registered as a town or village green under the Commons Act 2006 (see BDW Trading Ltd (t/a Barratt Homes) v Spooner representing the Merton Green Action Group and another [2011] EWHC 37 (QB)).

Rights of possession

Under s.242 of the TCPA’90, a local authority can override the provisions conferring security of tenure on residential occupiers under the Rent Act 1977 or Part 1 of the Housing Act 1988. However the appropriating authority: may be liable to make a home loss payment (s.29 Land Compensation Act 1973 (LCA’73)); to make a disturbance payment (s.37 LCA’73); and / or to rehouse displaced occupiers where suitable alternative residential accommodation on reasonable terms is not otherwise available to them (s.39 LCA’73.).

Challenges

A decision of a local authority relating to the appropriation of land or its subsequent disposal can be challenged if the local authority has acted ultra vires that is to say beyond or outwith its statutory powers, or has not carried out the correct legal procedures in making the order. A claim should be made by judicial review (under Part 54 of the Civil Procedural Rules) no later than six weeks from the date on which the grounds for the claim first arose.

Local Authority Councillors - rights of access to information

I was recently asked a question about how much information Local Councillors are actually entitled to. This got me thinking because there is, so far as I am aware, no single source of right on which to base a claim to entitlement to information or documents.

There are statutory provisions which set out in some detail what information Local Councillors may and may not be entitled to have and whether once they have it they can disclose the contents thereof; and then there are more flexible Common law entitlements. 

In principle Local Councillors have, in addition to the ordinary rights of access to certain information enjoyed by the general public, the right to access any information held by the council of which they are a member. This right of access may not extend to publication or otherwise making public and indeed Local Councillors may be asked to sign up to a confidentiality undertaking before being provided with certain information.

The statutory position

S.100F Local Government Act 1972 (as amended) (the Act) provides that any document which is in the possession or under the control of a principal council being a non-metropolitan county, a district or a London borough council (and which by virtue of s.100J of the Act has a very wide meaning beyond that) and contains material relating to any business to be transacted at a meeting of the council or a committee or sub-committee of the council shall be open to inspection by any member of the council. 

This does not require the document to be open to inspection if it appears to the proper officer (being the officer designated by the authority for these purposes) that it discloses exempt information although the document may still have to be open to inspection if the information is information of a description for the time being falling within the following descriptions:

• Information relating to the financial or business affairs of any particular person (including the authority holding that information) (except to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract), or 
• Information which reveals that the authority proposes (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or (b) to make an order or direction under any enactment. 

The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012

These regulations were made on 10 August 2012 and came into force on 10 September 2012 applying to those local authorities in England that are operating executive arrangements under Part 1A Local Government Act 2000, as amended by s.21 and Schedule 2 Localism Act 2011. 

The regulations: 

• Clarify and extend the circumstances in which local authority executive decisions are to be open to the public (Part 2). There is a presumption that a meeting will be open to the public unless the nature of the business that is transacted means that, in breach of the obligation of confidence, confidential information would be disclosed to the public.
• Make provision in relation to key decisions of the executive and the publicity that must be given before the key decision is taken (Part 3) and for the inclusion of prescribed information in a written statement of the executive decision (Part 4). 
• Set out the additional rights of local authority members and members of overview and scrutiny committees to access documents (Part 5) and general provisions relating to information, such as the information which is exempt from disclosure (which includes advice from a political adviser).

The Regulations provide in Part 5 that:

In Regulation 16 there are additional rights of access to documents for members of local authorities which ensure that any document which (a) is in the possession or under the control of the executive of a local authority; and (b) contains material relating to any business to be transacted at a public meeting, must be available for inspection by any member of the relevant local authority. Any such document must be available for such inspection for at least five clear days before the meeting except that (a) where the meeting is convened at shorter notice, such a document must be available for inspection when the meeting is convened; and (b) where an item is added to the agenda at shorter notice, a document that would be required to be available in relation to that item, must be available for inspection when the item is added to the agenda.

Any document which (a) is in the possession or under the control of the executive of the local authority; and (b) contains material relating to (i) any business transacted at a private meeting; (ii) any decision made by an individual member in accordance with executive arrangements; or (iii) any decision made by an officer in accordance with executive arrangements, must be available for inspection by any member of the relevant local authority when the meeting concludes or where an executive decision is made by an individual member or an officer immediately after the decision has been made. Any such document must be available for such inspection, in any event, within 24 hours of the conclusion of the meeting or the decision being made, as the case may be.

Neither of these provisions applies to make a document to be available for inspection if it appears to the proper officer that it discloses exempt information of a description falling within Part 1 Schedule 12A of the Act which sets out the descriptions of exempt information in England.

However these provisions do require the document to be available for inspection if the information is information of a description for the time being falling within either (a) paragraph 3 of Schedule 12A to the Act namely information relating to the financial or business affairs of any particular person (including the authority holding that information) (except to the extent that the information relates to any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract); or (b) paragraph 6 of Schedule 12A to the Act namely information which reveals that the authority proposes (a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or (b) to make an order or direction under any enactment.

Where compliance with the requirements would involve the disclosure of advice provided by a political adviser or assistant that paragraph will not apply to that document or part.

Regulation 17 provides for additional rights of access to documents for members of overview and scrutiny committees who are entitled to a copy of any document which (a) is in the possession or under the control of the executive of that authority; and (b) contains material relating to (i) any business that has been transacted at a meeting of a decision-making body of that authority; (ii) any decision that has been made by an individual member of that executive in accordance with executive arrangements; or (iii) any decision that has been made by an officer of the authority in accordance with executive arrangements.

The executive must provide that document as soon as reasonably practicable and in any case no later than 10 clear days after the executive receives the request.

No member of an overview and scrutiny committee is entitled to a copy (a) of any such document or part of a document as contains exempt or confidential information unless that information is relevant to (i) an action or decision that that member is reviewing or scrutinising; or (ii) any review contained in any programme of work of such a committee or sub-committee of such a committee; or (b) of a document or part of a document containing advice provided by a political adviser or assistant.

Where the executive determines to refuse such a request it must provide the overview and scrutiny committee with a written statement setting out its reasons for that decision.

Local Councillors can, like a member of the general public, also resort to The Freedom of Information Act 2000 and the Environmental Information Regulations 2004. 

There is a general presumption in favour of disclosure unless one of the exemptions applies. This is huge topic in its own right and the Information Commissioner’s Office provides two very helpful publications for organisations; first, the Guide to Freedom of Information and second, the Guide to the Environmental Information Regulations. In addition there is detailed guidance on the exemptions that may be applicable.

Local Authority Accounts

Ss.14, 15 and 16 Audit Commission Act 1998, and Regulations 21, 22 and 25 Accounts and Audit (England) Regulations 2011 provide that there is a right to inspect and question the council's auditor. S.14 gives the right to inspect and take copies of statements of accounts and auditors’ reports. S.15 gives the right to inspect, copy documents and question the council’s auditor. S.16 gives the right to make an objection to the council’s auditor. These rights are however restricted to prevent access to documents containing personal information. 

In addition s.228 (3) of the Act provides that “The accounts of a local authority and of any proper officer of a local authority shall be open to the inspection of any member of the authority, and any such member may make a copy of or extract from the accounts”.

The common law ‘need to know’

Under common law principles Local Councillors have the right to access information held by their authority where it is reasonably necessary to enable the member to properly perform their duties as a councillor. 

However, if the Local Councillor’s motive for seeing documents is indirect, improper or ulterior this may be raised as a bar to their entitlement. Local Councillors are not, therefore, allowed to go off on a ‘fishing expedition’ through their council’s documents. If a Local Councillor is a member of a particular committee or sub-committee then they have the right to inspect documents relating to the business of that committee or sub-committee. If not a member of that committee or sub-committee, the Local Councillor would have to show good cause why sight of them is necessary to perform their duties (See R. v. Clerk to Lancashire Police Committee ex parte Hook [1980] Q.B. 603).  

In R v Birmingham City District Council, ex p. O [1983] 1 A.C. 578; [1983] 2 W.L.R. 189; [1983] 1 All E.R. 497; 81 L.G.R. 259; (1983) 127 S.J. 105 the House of Lords (Lord Diplock, Lord Wilberforce, Lord Keith of Kinkel, Lord Roskill and Lord Brightman) considered an adoption case. 

During the course of investigations into housing problems being suffered by prospective adoptive parents, a city councillor on the housing committee, but not a member of any social services committee, became concerned at the suitability of the prospective parents for the adoption. She asked to see the files compiled by the social services department and the prospective parents sought an order restraining disclosure, after the city council had indicated that it intended to provide the councillor with the material she sought. The Divisional Court refused the application, but the Court of Appeal allowed the parents' appeal.

The Lords allowed the council's appeal taking the view that the real dispute was between the council itself and the social workers it employed. In the present case, notwithstanding that the actual decision on the adoption might have been made by a committee, if anything went wrong, it would be the council as a whole which was responsible. While a councillor was accordingly entitled to see any information possessed by the council which related to a committee of which she was a member, if she had a good reason for seeing that material, which in most cases she would, being a member of the appropriate committee; such a right of access to material did not, however, extend to areas which were not within the councillor's direct responsibility, and which were covered by committees of which she was not a member. In those cases the councillor had to show a "need to know": if she did establish a need, then she was entitled to the information. On the facts in this case it could not be said that the councillor had failed to make out a genuine concern and need to have made available the information she sought. 

In R v Sheffield City Council Ex parte Chadwick (1985) 84 LGR 563, the Divisional Court (Woolf J) took the view that it is not lawful for a council, by allowing a sub-committee to be used for party political purposes, to justify a need for confidentiality and secrecy which would not otherwise arise. However, it is not prima facie unlawful for a majority party to exclude members of other parties from committees. If an excluded councillor reasonably requests information about committee meetings, the committee must provide that information, and if the most convenient way of supplying that information is by allowing him to attend the meeting, then he must be allowed to attend. The position is of course different now with the need for political balance in committees ands sub-committees arising out of the changes in s.15 and Schedule 15 of the Local Government and Housing Act 1989.

In R. v Hackney LBC Ex parte Gamper [1985] 1 W.L.R. 1229; [1985] 3 All E.R. 275; 83 L.G.R. 359; (1985) 82 L.S.G. 438 the Queen's Bench Division (Lloyd J)  considered the case of G, the applicant, who was a Liberal councillor in the London Borough of Hackney, which had a large Labour majority. G was a member of both the public services committee and the housing sub-committee. The council was required by law to put its maintenance and construction work out to tender and to run its direct Labour organisations as a business. In this respect the public services committee appointed two sub-committees. G was concerned about empty flats and inadequate repair services and sought access to meetings and agendas of the sub-committees, but was refused on the ground that they were confidential. G sought judicial review and the court held, in granting the application, that G needed access as a councillor, as a member of the housing sub-committee and of the public services committee in order to ensure that those committees were doing their work efficiently, in order to carry out his duties as a councillor. Furthermore, no reasonable council could properly have reached the decision to refuse such access, and the council's decisions would be quashed.

Confidentiality

A Member must not disclose information given to them in confidence nor disclose information acquired which they believe is of a confidential nature, unless they: a) have received the consent of a person authorised to give it; or b) are required by law to do so.

If information is accessed using the Freedom of Information / Environmental Information Regulations provisions the information can be regarded as public and the Local Councillor may share the information with others. 

If on the other hand the Local Councillor has accessed the information via the provisions of the Act or the Common law 'need to know' then in some cases the information may still be confidential and the Councillor bound by confidentiality. In that case they should not publish or otherwise disclose the information to a third party.

Protecting against town or village green registration

The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 brings into force with effect from 1 October 2013 (in so far as not already in force):

• S.13 Growth and Infrastructure Act 2013 (GIA), which amends s.31 Highways Act 1980 (Highways Act) and allows the Secretary of State to make regulations about statements and maps deposited and declarations lodged under s.31 (6) to negative an intention to dedicate a way as a highway; and
• S.15 GIA, which inserts new ss.15A and B into the Commons Act 2006 (Commons Act) that allow a landowner in England to deposit a statement and map for the purpose of bringing to an end a period of recreational use, as of right, on the landowner's land.

In exercise of the powers conferred by ss.13 and 15 of the GIA, the Secretary of State has made The Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations 2013 (2013 Regulations) which also come into force in England on 1 October 2013.

The 2013 Regulations apply to applications to: deposit a statement and map, or lodge a declaration, under s.31 (6); and to deposit a statement and map under s.15A (1). They contain provisions which: prescribe the form the application must take; permit combined applications under both provisions; determine when a statement made under s.15A (1) is regarded as deposited; set out the duties of an authority upon receipt of a valid application; and set out the duties of a commons registration authority to maintain a register of statements and maps deposited under s.15A (1).

S.31 (6) contains a procedure which a landowner can follow to rebut a presumption of deemed dedication of a public right of way. The landowner must deposit with the appropriate authority a map of the land (to a specified scale) and a statement identifying any ways that the landowner admits to being a highway. Currently, the landowner must then lodge a statutory declaration with the authority stating that no additional land has been dedicated within the first, and every subsequent, period of ten years from the date of deposit of the map and statement, or the date that a previous declaration was lodged. The duties of the appropriate authority to maintain a register of statements, maps and declarations are contained in s.31A and the Dedicated Highways (Registers under Section 31A of the Highways Act 1980) (England) Regulations 2007 (2007 Regulations). These Regulations are now amended to: replace each reference to a statutory declaration with a reference to a declaration; extend the period within which a declaration can be lodged following the deposit of a statement and map (or previous lodgement of a declaration) from 10 years to 20 years; and provide for paper registers kept under s.31 (6) to be held at a specified office or the principal office of the authority.

The 2013 Regulations apply to any application made on or after 1 October 2013 to: deposit a statement and map under s.31 (6); lodge a declaration under s.31 (6); and deposit a statement under s.15A (1).

The appropriate authority in relation to a statement and map deposited under s.15A is a commons registration authority which under s.4 Commons Act is a county council; a district council for an area without a county council; or a London borough council. The appropriate authority in relation to a statement and map deposited, or declaration lodged, under s.31 (6) is a county council, metropolitan district council, London borough council or the Common Council in the City of London.

Any application must be: in the form, or substantially the same form, as that set out in Schedule 1 to the 2013 Regulations, with such insertions and omissions as the circumstances require; signed by each and every owner of the land, their duly authorised representative or where a body corporate or an unincorporated association, by the secretary or other duly authorised officer; either accompanied by an Ordnance map at a scale of not less than 1:10,560 showing the boundary of the land to which the application relates in coloured edging or refer to a map previously deposited under the 2013 Regulations or (before 1 October 2013) under s.31 (6); and accompanied by the fee specified by the appropriate authority.

Where an applicant is unable to read or write, Regulation 2(3) provides for the application to be supported by a certificate made by a conveyancer (as defined in Rule 217A (1) of the Land Registration Rules 2003).

A statement made under s.15A (1) will be regarded as deposited with a commons registration authority when a valid application is given to the authority. A combined application made under both s.31(6) and s.15A (1), will be regarded as deposited with the appropriate authority by reference to ss.322(2) and 322(3) Highways Act (which determines when a single application under s.31(6) is regarded as deposited).

Regulation 4 prescribes the steps that an appropriate authority must take upon receipt of a valid application. These steps include requirements to: publish notice of the application on the appropriate authority's website; serve email notice on anyone who has provided the appropriate authority with an email address for that purpose; and for not less than 60 days, post notice of the application at or near an obvious place of entry to the land or, if there is no obvious place of entry, at least one conspicuous place on the boundary. If the notice is removed, obscured or defaced without fault on the part of the appropriate authority before the 60 days has elapsed, the authority is treated as having complied with this requirement. The notice must be in the form, or substantially the same form, as that set out in Schedule 2 to the 2013 Regulations with such insertions and omissions as the circumstances require.

S.15B (1) requires each commons registration authority to maintain a register of prescribed information about statements and maps deposited under s.15A. That duty may be discharged by the prescribed information being kept in a newly created part of the register currently maintained under s.31 (6). Regulation 5 prescribes the information the register must contain and Regulation 6 the manner in which the register must be kept. The register must be kept in paper and electronic form. The electronic form must be available for public inspection on the appropriate authority's website. An appropriate authority has power to remove an entry from the register if satisfied it contains a material error. The appropriate authority must give not less than 28 days' notice to the landowner of the appropriate authority's intention to remove an entry.

Landowners who are concerned about the potential for town or village green registration applications in respect of their land will therefore no doubt wish to consult with their professional advisors in readiness for depositing the requisite statement and map to bring to an end any ‘as of right’ recreational use.