S151 Officer Section 114 Reports

1. Society of District Council Treasurers AGM S151 Officer Section 114 Reports Paul Cresswell paul.cresswell@ryedale.gov.uk

2. Ryedale District Council • North Yorkshire • £30m Gross, £7m net revenue budget • £10m 4 year capital programme • 30 members • 4th option Committee System • 220 FTE

3. Ryedale District Council • 8 Council meetings in 2013 (2 extraordinary) • 2 x s114 Report in last 2 years (3 in 10) • Last 4 Council finish times (6.30 start) • 9.30pm, 10.30pm, 1am, 10.45pm • 22 member questions on notice one meeting • 18 Con, 5 Liberal, 3 LD, 3 Independent, 1 other • Constitution

4. This presentation • Disclaimer • The Legal Stuff • My 11 Point Guide • S114 report No. 1 • S114 report No. 2

5. Disclaimer I am not giving legal advice I have experience not expertise (s114 reports!)

6. S114 LGFA 1992 (2) Subject to subsection (2A),the chief finance officer of a relevant authority shall make a report under this section if it appears to him that the authority, a committee of the authority, a person holding any office or employment under the authority, a member of a police force maintained by the authority, or a joint committee on which the authority is represented— (a)has made or is about to make a decision which involves or would involve the authority incurring expenditure which is unlawful, (b)has taken or is about to take a course of action which, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency on the part of the authority, or (c)is about to enter an item of account the entry of which is unlawful.

7. S114 LGFA 1992 (3)The chief finance officer of a relevant authority shall make a report under this section if it appears to him that the expenditure of the authority incurred (including expenditure it proposes to incur) in a financial year is likely to exceed the resources (including sums borrowed) available to it to meet that expenditure. (4)Where a chief finance officer of a relevant authority has made a report under this section he shall send a copy of it to— (a)the person who at the time the report is made has the duty to audit the authority’s accounts, and (b)each person who at that time is a member of the authority; and (c)in a case where the relevant authority has a mayor and council manager executive, the person who at the time the report is made is the council manager of that authority

8. S115 (2)The executive of the authority (within the meaning of Part II of the Local Government Act 2000) shall consider the report at a meeting where it shall decide whether it agrees or disagrees with the views contained in the report and what action (if any) it proposes to take in consequence of it. (3)The meeting must be held not later than the end of the period of 21 days beginning with the day on which copies of the report are sent. (5)If the report was made under section 114(2) above, during the prohibition period the course of conduct which led to the report being made shall not be pursued. (6)If the report was made under section 114(3) above, during the prohibition period the authority shall not enter into any new agreement which may involve the incurring of expenditure (at any time) by the authority.

9. Assumption You have received notification of a motion going to Council which you believe at first sight might be illegal and may cost the Council

10. 1 – Be Brave • Don’t assume anything • Be prepared to work with members • Brace yourself • CIPFA role

11. 2 - Read s114 • In full • Then read again • Re-read it when you are drafting your report • Check report against s114 at the end

12. 3 - Speak to Monitoring Officer • You will need external opinion on legality sourcing • Budget • Get the advice as soon as possible • You will need MO to write a report under s5 of the Local Government and Housing Act 1989 • You will need to be united

13. 4 - Speak to CE • You will need to explain your duty and MO duty • You may need to manage expectations • Other Directors? • Get them on board makes it easier

14. 5 - Speak to Members • Explain your position • Leader • Mover • Seconder • Powers of persuasion • Threaten s114 report

15. 6 - Speak to the Auditor • Explain the position once you know you might have to write a report • Ask for a view or assistance • Send them a draft for comment • Keep them informed of progress and end result

16. 7 - Phone a Friend • E mail friends • Make friends! • SDCT • Anyone (CIPFA) • Can be a lonely uncertain place

17. 8 - Draft Report Early • As soon as you have legal opinion • Put ‘draft’ all over it • Use critical friends (internal and external) • Share draft with MO and CE, poss Leader/mover • May help motion to be withdrawn

18. 9 - Give your opinion • Not ‘selling’ a recommendation, no vote (i) this report be received; and (ii)Council considers this report before deciding whether or not to approve the motion set out in paragraph 1.1 to be considered by Council on the 21 October 2013. • Although this is my view as Section 151 Officer for the Council only the Courts can give a definitive interpretation.

19. 10 – Prepare for the meeting • Agenda order – report before • Send to auditor • Prepare for Media enquiries • Prepare for Member contact • Prepare for Members using your report in the media!

20. 11 - Present to the meeting • Present the report • Have spare copies of report • Assume some attendees haven’t read it • Meeting recorded? • Lay it on thick

21. S114 Report No. 1 • Straightforward • Motion: "This Council invites the Secretary of State to 'call in' the competing Malton supermarket planning applications in order for their respective merits to be considered by way of public enquiry under the auspices of an independent planning inspector."

22. S114 Report No. 1 Outcome • External Legal Opinion – would be illegal • Council not fulfilling its duties • Likely to result in claim from Developer (failure to follow planning acts) £500k+ • So not lawful • Likely to lead to loss • Went to Council – Chairman ruled motion out of order

23. S114 Report No.2 • Planning Application 260 homes near Market Town • Unpopular! • Twice to Committee • Appeal hearing scheduled • New application submitted to planning Committee

24. Planning Decision • Planning Committee 10 Members • Cllr x moved refusal of application • 6 Abstained • 2 voted for refusal • 2 voted against refusal (inc Cllr x) • Chairman’s casting vote then approved the application (no revote) • After meeting Cllr x said he pressed wrong button

25. No such thing as Bad Publicity? DAILY MAIL: Bungling councillor presses wrong button on vote machine – and gives 'eyesore' housing estate go-ahead Ryedale District Councillor said he had made 'a mistake' Voted for the application giving the go-ahead to build 260 homes on farmland Plus: BBC, Daily Mirror, Telegraph…

26. S114 Report No.2 - Motion Extraordinary Meeting Motion Received: ‘The five members below wish to call an Extraordinary Full Council preferably in Kirbymoorside. This Council to debate the Gladman application at Kirbymoorside (1300342/MOUT). We wish to consider the decision taken on the 28th August 2013. As a result the Council resolves to approve the following: i.      Instruct the Chief Executive to proceed with revocation of the decision; and ii.     To not contest the Judicial Review that is expected on this planning application.’

27. S114 Report No.2 • Revocation (i) the difficulty • Not illegal to revoke a planning decision • Legal Advice Revocation would cost £3m - £5m (£12m) • Would bankrupt RDC • S114 (2) (b) ‘if pursued to its conclusion would be unlawful and likely to cause a loss or deficiency on the part of the authority’ • Council would be in an unlawful position Council Tax up by 58% (£2m), referenda, unbalanced budget • Met, discussed, motion amended – no revocation

28. Current Position • JR allowed, RDC not contesting • Developer contesting • Developer submitted a new application • Going to Planning Committee • Cllr x attendance and interests? • No planning reason to refuse? • Costs potential (£148k last time) • NHB?

29. Questions/Comments