Please read on for the legal update from NALC:
Can a council chair override a request for voting to be recorded?
We were asked about a scenario where a council chair overrode a councillor’s request for votes to be recorded and proposed a motion not to permit it, which was passed. Our advice was that there is no power to do this. The law gives a statutory right for a councillor(s) to request that votes be recorded. Paragraph 13 (2) of Schedule 12 to the Local Government Act 1972 provides that on the requisition of any member of the council, the voting on any question shall be recorded to show whether each member present and voting gave his vote for or against that question. The council chair or indeed a council’s standing orders cannot override the right.
Can a committee accept apologies and approve reasons for absence from a councillor who is not a member of the committee?
We were asked to consider a councillor’s qualifying attendance for Section 85 of the Local Government Act 1972. The council asked us if apologies approved at a committee of which the councillor was not a member would count. Our view was no. It is for the logical reason that there is no absence to be approved from a committee if a councillor is not a member of the committee.
Can a parish or town council use the general power of competence to pay allowances to co-opted members?
A council asked us if it could use the general power of competence to pay a parish basic allowance to co-opted members. Our answer was no. Regulation 25 of the Local Authorities’ Members’ Allowances (England) Regulations 2003 provides that a local council can pay a parish basic allowance (PBA) for each year to its chair only or to each of its members. Regulation 25 (10) says that for this regulation, any reference to a member is a reference to an elected member of a parish or town council. Section 2 of the Localism Act 2011 says that the use of the general power is subject to pre-commencement limitations or post-commencement limitations expressly applied. In our view, Regulation 25 (10) does amount to such an express limitation. Our advice note contains our advice on councillors’ allowances.
Can councils carry out maintenance on land not owned by the council?
We are often asked if parish or town councils can carry out works (e.g. to trees or footpaths) on land they do not own or where there is no known owner. The council may have the power to do the works (e.g. general power of competence). Still, the question is often whether it is appropriate to do so. Would the council be holding itself out to take on responsibility generally and be held liable for any issues that arise as a result of repairs or non-repairs? We advise councils in such cases to first speak with their insurers to check if works are within the scope of their insurance policies. Another solution may be funding other reputable local bodies to carry out the works.
The Charity Commission letter
Legal requests involving charities are common, and often when they come to us, it is because there is a problem that has arisen because of blurred lines between council and charity, or a council not appreciating the limited role of the custodian trustee. Issues also arise when a council is a landowner of charity land subject to a lease. Our role is limited, as reflected in our advice note on basic charity law. Often, a council will need advice as a charity rather than a council. We want to highlight some of the points made in the letter that they had sent to a council, where the council had not sufficiently distinguished between council and charity, and had treated the charity land as council land. The Charity Commission gave the following advice for trustees.
When making significant decisions for the charity, trustees must:
The Planning and Infrastructure Act 2025
The Ministry of Housing, Communities and Local Government wrote to us in December to confirm that the Act received Royal Assent last month. The Act makes reforms to compulsory purchase powers, processes and compensation in England and Wales, with sections coming into force over the next few months. Given the nature of the subject, we envisage limited application to our sector. We will monitor and assess if there is any guidance we can provide.
If you have any queries relating to the legal update, please do reach out to us.