Architect's Legal Handbook

Anthony Speaight

• Publisher: Routledge
• Year: 2010
• Print ISBN: 9781138460676, 9781138460676
• eBook ISBN: 9781136445323
• Edition: 9
• Topic: Architecture
• Subtopic: Architecture General

Architect's Legal Handbook is the most widely used reference on the law for architects in practice, and the established leading textbook on law for architectural students.

The ninth edition includes all the latest development in the law that affect an architect's work, and comprehensive coverage of relevant UK law topics. Most significantly, the chapter on the JCT contracts has been completely revised to cover the 2005 update.

• Contributions by the foremost legal and architectural experts in the UK

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• Full coverage of the JCT 2005 update

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• New chapter on procurement

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• Selected bibliography provides useful references to further reading

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• Tables of Cases, Statutes and Statutory Instruments provide full referencing for cited cases

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Architect's Legal Handbook is the essential legal reference work for all architects and students of architecture.

Part B

Statutory
Framework

7

Statutory Authorities in England and Wales

James Strachan

1 Local Government

Introduction: relevant local government authorities

1.01 Local government in England and Wales, outside London, was completely reorganised on 1 April 1974, when the Local Government Act 1972 came into force. The pattern of local authorities, following this and subsequent local government legislation, is now simpler than it was before 1974, but Greater London (reorganised in 1965 by the London Government Act 1963) is administered differently, and there are also differences which exist between England and Wales. These three parts of the country should therefore now be considered separately.

1.02 Local government in England and Wales consists of administration by locally elected bodies constituted as corporations and subject to powers conferred and duties imposed by Parliament. Local authorities are subject to the direction, control and supervision of the Government, to the extent that Parliament has legislated for that direction, control and supervision in statute or in other legislation.

1.03 The Labour Government elected in 1997 carried out a reform of local government in England and Wales. The Local Government Act 2000 gave local authorities general powers to promote the well-being of their community; established executive and scrutiny arrangements within local government; modernised the laws relating to the conduct of members; and changed some of the local government election procedures, subject now to the Local Government Act 2003, which deals further with financial administration, and the Local Government and Public Involvement in Health Act 2007. The Government of Wales Act 1998 devolved certain powers from Westminster to the National Assembly for Wales. The Regional Development Agencies Act 1998 has created nine regional development agencies in England to promote sustainable economic development, and social and physical regeneration.

1.04 In London, the Local Government Act 1985 abolished the Greater London Council and redistributed its functions among the 32 London boroughs, the City of London and new specialised representative bodies (e.g. the London Fire and Civil Defence Authority). Housing became the responsibility of the boroughs and the City. The Greater London Authority Act 1999 established the Greater London Authority (GLA), which is composed of the London Assembly and the Mayor of London. The London Borough Councils and the Common Council of the City of London remain, although some of their responsibilities and functions have been affected by the creation of the GLA.

1.05 In England outside the London area, the country was divided among six metropolitan areas (West Midlands, Merseyside, Greater Manchester, West Yorkshire, South Yorkshire, and Tyne and Wear) and the ‘ordinary’ counties. Between 1974 and 1985 in the metropolitan areas there was a metropolitan county for each area, and a varying number of metropolitan districts, each with a council, within each county. Since 1985 the metropolitan counties have been abolished and their functions redistributed to the metropolitan districts and specialised representative bodies.

1.06 Outside the metropolitan areas the structure originally comprised 38 counties (each with a county council) and approximately 390 districts (each again with a council). However, following the recommendations of the former Local Government Commission, a number of the former county councils have been abolished in favour of new unitary authorities, which combine the functions of county and district councils. In other non-metropolitan counties, two tiers of government were retained, although in some cases large cities have been given unitary status with the county and district councils retaining their responsibilities for the remaining parts of the area. The Electoral Commission has the powers of the former Local Government Commission for England to review and make changes for effective and convenient local government under the Parties, Elections and Referendum Act 2000 and the Local Government and Public Involvement in Health Act 2007. The 2007 Act has enabled two-tier areas to propose a single unitary authority area, and a number of county councils have sought such change to create single unitary authorities, such as the Wiltshire Council in existence from 1 April 2009.

1.07 In addition, rural parishes which existed before 1974 have been allowed to continue, subject now to Part 4 of the Local Government and Public Involvement in Health Act 2007 (amending the Local Government Act 1972). Some of the pre-1974 district councils have been re-formed with parish council status. As an additional complication, district councils have been allowed to apply for a charter giving themselves the status of a borough, although this is solely a ceremonial matter. Some parishes have been allowed to call themselves ‘towns’ and have appointed ‘town mayors’, again with no real legal significance. The parishes (‘communities’ in Wales) have very few substantial functions, but may provide and maintain recreation grounds, bus shelters, and roadside seats. The Chairman and Vice-Chairman of a parish council must now be chosen from elected, as compared with appointed, councils. Eligible parish councils are now entitled to promote the economic, social or environmental well-being of their area, but do not need to produce a community strategy in order to do so. New parishes within an area, may arise as a result of community governance reviews.

1.08 In Wales there are no metropolitan areas. The former structure of 8 counties divided into 37 districts, with councils at each level, was abolished on 1 April 1996, since when all local administration has been undertaken by 22 new unitary authorities (11 counties and 11 county boroughs) under the Local Government (Wales) Act 1994. The Government of Wales Act 1998 provided for the devolution of certain powers from ministers to the National Assembly for Wales. In effect, the newly created Welsh Assembly has taken over the responsibilities that the Secretary of State for Wales previously exercised in Wales.

General characteristics of local authorities

1.09 The essential characteristic of every local authority under this complicated system is that it is governed by a council elected on a wide franchise at 4-year intervals. In districts, one-third of the councillors retire every year on three out of four years: but a non-metropolitan district may resolve that all their members shall retire together. In counties, all members retire together every fourth year. Some changes have been made to the system of election of councillors by the Local Government Act 2000 and now the Local Government and Public Involvement in Health Act 2007. Under this legislation district councils may be subject to schemes for whole-council elections, or elections by halves or thirds, and power is given to change the date of local elections to the date of a European Parliamentary general election. The term of office for an elected mayor is 4 years.

1.10 Local authorities are legal persons, capable of suing and being sued in the courts, entrusted by Parliament with a range of functions over a precisely limited geographical area. Each local authority is subject to the doctrine of ultra vires; i.e. it can perform only those functions within its powers conferred on it by Parliament, and only in such a manner as Parliament may have laid down. On the other hand, within the powers defined by Parliament, each local authority is its own master. In the two- or three-tier system there is no question of an appeal from the lower-rank authorities (the district or the parish) to the higher rank (the county council) or from the parish to the district. If the individual authority has acted within its statutory powers, its decision is final, except in cases precisely laid down by Parliament, where (as in many planning situations) there may be a right of appeal to a Minister of the central government (Chapter 11). If, however, a local authority has overstepped the limits of its legal powers, a private citizen who is aggrieved in consequence may apply to the courts for an order requiring the errant local authority to keep within its powers. Thus, a ratepayer at Fulham successfully obtained an order against the borough council, requiring the council to stop spending ratepayers’ money on the provision of a service for washing clothes for members of the public, when the council had statutory powers to provide a service for washing only the bodies of members of the public (Attorney General v Fulham BC [1921] 1 Ch 440).

1.11 Local authorities have now been granted wide general powers under section 2 of Part I of the Local Government Act 2000. This enables every local authority to do anything which they consider likely to achieve the promotion or improvement of the economic, social or environmental well-being of their area. This is a significant enlargement of the powers of local authorities. It is coupled with the wider express powers under the Local Government Act 2003 of ‘best value’ local authorities, as established under the Local Government Act 1999, to charge for their services in many circumstances.

Human Rights

1.12 The enactment of the Human Rights Act 1998 has added a significant new dimension to the statutory duties of local authorities. The basic purpose of the Act is ‘to give further effect to rights and freedoms guaranteed under the European Convention of Human Rights’. Of particular relevance to local authorities, the Act provides that it is unlawful for a public authority to act in a way which is incompatible with any Convention right.

Freedom of Information

1.13 Local authorities, like other public bodies, are now subject to the requirements of the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (SI 2004/339l) (EIR). This legislation gives important rights to the public to obtain information held by local authorities (subject to certain specified statutory exemptions) which may be particularly relevant to the local authority’s decision-making in respect of development applications. Where a local authority refuses a request for information under the FOIA or the EIR, there is a right to pursue a comlaint with the Information Commissioner, and thereafter a right of appeal against an Information Commissioner’s decision notice to the Information Tribunal. For further details of these rights, see: the Information Commissioner’s website www.ico.gov.uk; and that of the Information Tribunal: www.informationtribunal.gov.uk.

Officers

1.14 All local authorities are alike in that they employ officers and other staff to carry out their instructions, while the elected members assembled in council make decisions as to what is to be done. Officers of the authority – chief executive, solicitor, treasurer, surveyor, architect, planning officer, and many others – play a large part in the decision-making process: they advise the council on the courses of action open to them, and also on the consequences of taking such actions. When a decision has been taken, it is then the duty of appropriate officers of the council to implement it: to notify persons concerned and to take any executive decisions or other action necessary to give effect to the main decision. It is sometimes said that the officers give advice and take action, while the council decides all matters of policy; although basically true (for statutes almost invariably confer the power to exercise discretion on the authority itself) this does not clarify what happens in practice. ‘Policy’ is incapable of precise definition. What is policy for some local authorities in some circumstances may be regarded as routine administration by other authorities in different circumstances.

Executive Arrangements and Committees

1.15 The Local Government Act 2000, as now amended by the Local Government and Public Involvement in Health Act 2007, required each local authority in England and Wales to adopt ‘executive arrangements’ in one of a number of specified forms. ‘Executive arrangements’ are arrangements made by the authority for, and in connection with, the creation and operation of an executive for the authority where certain of the authority’s functions are the responsibility of the executive. Local authorities are required to put in place scrutiny and overview committees. A division has been created within each local authority between the making of decisions, and the granting of those decisions. The purpose of the reforms is ‘to deliver greater efficiency, transparency and accountability of local ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Editor’s preface
• Acknowledgements
• List of contributors
• Part A: General principles of law
• Part B: Statutory framework
• Part C: Building contracts
• Part D: Building dispute resolution
• Part E: The architect in practice
• Bibliography
• Table of statutes and statutory instruments
• Table of cases
• Table of legislation
• Index