Update: local government

The election

The last few months have been particularly busy in the local government sector, with the challenge of holding simultaneous local and national elections while ensuring compliance with political purdah and assessing the implications of the major changes proposed by the coalition government forming just part of the daily workload.

Election chaos in a number of constituencies saw people unable to vote because of large queues at the close of polling. The Electoral Commission has issued an expedited report into the circumstances on election night, which unsurprisingly found different approaches with some authorities allowing electors actually inside the polling station to vote beyond the official 10pm cut off and others enforcing a strict deadline. There is nothing unexpected in the finding that the problems were a combination of insufficient staffing and poor quality venues being used as polling places.

The deadline has now passed for electors to issue an election petition against a returning officer for a determination on whether another election should be held in the constituency, but local authorities and returning officers may also face challenge by way of judicial review on grounds such as failing to comply with a legitimate expectation and failing to exercise discretion in a lawfully reasonable way. The underlying facts of each case may differ from one constituency to another, and so the grounds for challenge may vary. Any challenge would of course have to be brought within three months of the relevant act or decision.

Proposed legislation

The coalition government's legislative programme outlined in the Queen's Speech on 25 May poses several items of particular interest to local authorities.

The Academies Bill, which aims to enable more schools to be reclassified as acadamies, will raise many issues for specialist education lawyers, but until we have more information on whether the coalition intend to use the existing models of agreement it is hard to say how much work there will be that is additional to that for the current academy programme.

Meanwhile, the full extent of the proposed reforms under the Decentralisation and Localism Bill, which devolves greater powers to councils and neighbourhoods, will also not be known until the Bill is published. It will be interesting to see if it includes the government's plans to restore the committee system, and how member misconduct will be dealt with if the standards regime is abolished.

The power of general competence for local government has longstanding support from the Local Government Association, which has issued a draft of how this could work. It has been argued that such a general power is needed to enable local authorities to deliver initiatives such as 'total place' through genuine joined-up government and achieve the level of savings required, but such a power could also lead to loss of accountability and override safeguards built into specific legislation.

Other key proposals include the Education and Children Bill, the Local Government Bill and the Police Reform and Social Responsibility Bill. Under these plans, all schools could win greater freedom over the curriculum, the structural change orders that established both Exeter and Norwich as unitary councils in April will be scrapped and the local authorities could receive much stronger police powers.

The EU procurement rules and development agreements

Poltics aside, a lot of concerns have been raised about whether the imposition of planning conditions on a development by a local planning authority can result in all or part of that development being classified as a works contract for the purposes of the EU procurement rules.

In Helmut Müller GmbH v Bundesanstalt für Immobilienaufgaben (C-451/08), the ECJ looked at whether a development-type deal involving the disposal of land coupled with potential local authority planning conditions on how that land was to be developed was a works contract for the purposes of the EU procurement rules. They held that the arrangements did not amount to a works contract and so the EU rules did not apply.

In this case, the federal agency responsible for managing public property owned and managed a military barracks site. The barracks were closed in 2007 and the agency launched a call for tenders for the sale of the property. This did not involve an advertisement in the OJEU and the public procurement rules were not followed in the subsequent tender and award process.

After a case was lodged by an unsuccessful tenderer, the regional court referred nine questions to the ECJ, including whether the concept of a public works contract requires that the works which are the subject of the contract must be physically carried out for the contracting authority in its immediate economic interest or whether it is sufficient if the works fulfil a public purpose '“ such as the development of part of a town.

The court failed, on the facts presented to it, to find a link between the sale process by one authority, the agency and the possible future development of the site under conditions set by another authority '“ the local authority.

The ECJ confirmed that the sale of the land in itself did not amount to a public works contract. It stated that the concept of a public works contract does require the works to be carried out for the immediate economic benefit of the contracting authority although this need not necessarily result in the acquisition of a material or physical object. However, where works are carried out in accordance with requirements set by a local authority under urban planning powers intended to give effect to the public interest, then this does not result in immediate economic benefit to the contracting authority and so it is not a public works contract. The court also held that the mere approval of certain building plans by the local authority in the exercise of its planning function did not amount to the local authority specifying requirements for the works.

This case does, helpfully, highlight the requirement for the conditions imposed to result in immediate economic benefit to the contracting authority and so provides some comfort to authorities who are imposing only standard planning conditions.

However, where more specific requirements are imposed, such as the development of facilities for community use or of use to the local authority itself, then this is still likely to fall foul of the procurement rules.

Property searches and the EIR

Two keenly awaited decisions in the long-running saga of local authority land charges and the Environmental Information Regulations 2004 (EIR) have now been obtained.

In East Riding of Yorkshire Council v Information Commissioner (Decision no.FER0236058), a property search company made a request to the council to inspect the building control and traffic schemes information within 200 metres of a named address. The council agreed to provide the information requested but only on the provision of a fee based on the Charges for Property Searches Regulations 2008. The council argued that it was allowed to charge for the information under EIR regulation 8(1) as the information was not in a public register and could not be inspected without further collation as part of local search Form CON29R. The information commissioner (IC) found that the request was to inspect environmental information but that the council could not charge for the information by virtue of regulation 8(2)(b), and he ordered the council to make the information available for inspection.

The council appealed to the First-tier Tribunal General Regulatory Chamber (Information Rights). The tribunal upheld the IC's decision, stating that the information covered by the request, being the information required to answer questions in Form CON29R, should have been made available for inspection when requested and should be disclosed.

The second case, OneSearch Direct Holdings Ltd (t/a OneSearch Direct) v York City Council [2010] EWHC 590 (Admin), concerned the council's new policy on access to and charges for property search information that would apply from April 2009. The policy stated that property search information would be provided only through its Local Land Charges Office computerised 'one-stop shop'. Where the council had an express duty to allow public access to information, then it would allow access freely or for the standard fee; all other enquiries would be provided with a full computer printout for which they would be charged the same fee, calculated on a cost recovery basis, and the council would not be able to provide answers to enquiries on a question by question basis. A property search company, 'O', compiled home information pack (HIP) reports using data obtained from local authorities. O applied for judicial review of the council's decision, contending that the policy was unlawful as it would not allow access to the raw data that the council held, and so the policy defeated the obvious and clear intention of the statutory scheme which was to provide competition in the provision of HIP reports and so access to the unrefined information necessary for the preparation of such reports.

Refusing the application, the court held that there was no express power on local authorities to respond to property search enquiries. In answering such enquiries, local authorities acted under their powers under section 111 of the Local Government Act 1972, covering the power to do anything incidental to the discharge of their functions, and section 2 of the Local Government Act 2000, which states well-being power.

The 2008 regulations related purely to the authority's charging function and imposed no new duty on a local authority in respect of allowing access to information. O had failed to show that the council's policy was contrary to the government's intention on how its long-term policy aims were to be implemented, nor was the council's decision to refuse access to unrefined information contrary to the purposes or intention of any statutory provision so as to make that decision unlawful.

Unfortunately, these decisions do not really help to move this debate on towards a solution as one case is a tribunal decision and so not precedent and the court in the second case did not consider the EIR points.

However, now that the requirement for home information packs has been suspended, this issue may not be so contentious.