PFM 7 - Denbighshire County Council

Here are the comments from Denbighshire County Council on the proposed measure.

I feel that oral evidence from the local government sector should be arranged via the Welsh Local Government Association.

Ian

1. The principle of the measure is not supported although it is assumed that the lack of opposition to the measure in the Assembly's resolution of 6 February means that it will progress. Nevertheless it is felt appropriate to question the need for the measure as well as offer detailed comments on the drafting.

The measure will impose additional bureaucracy and cost on councils and the Welsh Assembly Government.  Disposals of playing fields - particularly for development - are already subject to intense local scrutiny and debate which will involve the community concerned and its elected local representatives. Indeed, planning permission is required for a material change of use and this ensures a level of control through land use planning policies, public notice of any proposals and - almost inevitably for controversial changes such as this  - decision by elected members in the planning committee.

It is far from certain that the measure will result in different decisions being taken and, by giving the opportunity for Welsh Assembly Government Ministers to delay processes, it undermines the local leadership and accountability of councils.  Has the measure been assessed for compliance with the European Charter of Local Self-Government? It is apparent from question 8 of the consultation document that a financial impact assessment of the measure on councils has not been prepared before it has been proposed: this does not represent best practice in terms of shaping legislation, when all the detail has been drafted without proper consideration of the financial implications. The measure seems to assume that councils will take ill-informed decisions: it could be suggested that the decision to draft and consult on this measure is not as well-informed as it could have been.

2. The definition of "dispose" is too wide and would capture long leases or transfers of title to community councils or other community or sporting organisations, including charitable trusts, even where there is no intention to change the use of the playing field.  It is respectfully submitted that the proper intention of the measure is to require consultation and an impact assessment when the disposal will involve the playing field ceasing to be used as such.  The definition of "dispose" should be amended accordingly.

3. Confirmation is sought that the reference in section 3(1)(c) to the strategy for the economic, social and environmental well-being under section 4 of the Local Government Act 2000 is correct. Is perhaps the health, social care and well-being strategy under section 24 of the National Health Service Reform and Healthcare Professions Act 2002 meant? See regulation 5 of SI 2003/154 for a definition of what those strategies cover.

The requirement for publication of notices in newspapers in section 3(8) is strongly opposed.  Such provisions are Victorian in nature, impose higher costs than necessary and take no account of the current range of communication methods with the public.  Councils should be required to publicise the proposed disposal by one or more of the following means:

on their website

by notices in the vicinity of the playing field concerned (similar to the arrangements made for planning applications)

by notice in a local newspaper

by notice in a newspaper or magazine published by the council

by such other steps as will ensure that the proposal is drawn to the attention of the public (for example, simply issuing a press statement - at no cost to the council - is highly likely to ensure press coverage).

4/5. The danger with this provision is that, over time, more and more bodies will be added with the attendant risk of adding to councils' costs.  It is welcome therefore that section 4 does not specify how councils shall draw attention etc. and this will allow them to do so by e.mail.  In respect of Barnardo's, Merched y Wawr and The Women's Institute, it is not apparent what special interest those organisations have that deserve their inclusion in Schedule 4 compared to many other organisations that might have been mentioned. Barnardo's is misspelt.

It would be preferable if greater reliance were placed on the generic provision in section 4(1)(b) and duplication in Schedule 4 avoided : for example, paragraph 2 is unnecessary because it is covered by "bodies ... represent[ing] the interests of people likely to make use of the playing field".

6. For the reasons already given, the requirement to publish notices in newspapers is not supported in sections 6(1) and (2)(b).

The drafting of section 6(3) seems defective.  If the council has decided to proceed with the disposal in a modified way, it is not correct to describe it as a "modified proposed disposal".  Likewise the definition of the term in section 11 needs attention.  It appears defective because it defines such a case as a "proposal to dispose" when the context of section 6 is that it will by then be a decision to dispose.  Nor is it clear that the impact of a modified disposal will necessarily be "less".  A hypothetical example might be that the proposal was to dispose of a whole playing field where a public footpath ran along one side, and to close the footpath.  The modified disposal might omit the footpath from the sale of land.  Is the impact of the disposal on the matters in section 3(1) really "less"?

"modified proposal" in section 6(2) is also defectively drafted.  This should refer to "modified disposal".

7. The only impact of this section is to ensure that authorities comply with the requirements of sections 3 to 6.  It is not apparent that this is consistent with normal arrangements for local accountability or the existence of other methods of challenging council decisions by way of judicial review, complaint to the Ombudsman about maladministration etc.  It is noted that these alternative methods are relied upon where a "remedial direction" has been issued, thus begging the question of why the measure doubts councils' compliance with what would be statutory requirements in sections 3 to 6.

If this provision is retained, councils must not be subject to "double jeopardy" and further delay.  Where the Welsh Ministers have withdrawn a "stop direction" under section 7(3), there should be no right to question the disposal further by way of judicial review.

8. It is difficult to estimate accurately the costs of compliance with this measure since it depends on the number of disposals that would be caught by it - particularly given the unnecessarily wide definition of "dispose".  If the narrower definition were adopted, it is not likely to affect many disposals : there have been only a couple of actual or potential disposals of playing fields for development in Denbighshire in the last five years.  There would be additional costs from the requirements for notices in newspapers which could be avoided by adopting a modern approach to publicity requirements, as suggested above. By way of comparison, a typical notice for a proposal affecting a school or a highways closure costs £110 for each insertion in one local newspaper or £1000 in the Daily Post. There may be additional costs in sending information to the statutory consultees if they are not contactable by e-mail. And there will be opportunity costs as a result of undertaking impact assessments (if they are not already undertaken) and of the additional consultation requirements imposed by the measure.

Other matters

It is suggested that the words in brackets in section 2(b)(ii) may require adjustment to reflect practice in other legislation made by the Assembly. Frequently, community councils are referred to without further explanation. But there are examples of provisions that make specific reference to town councils. It is suggested that, in line with 2(4) of SI 2005/368, this might refer instead to "a community or town council in accordance with section 27 of the Local Government Act 1972".

Ian Miller
Prif Weithredwr/Chief Executive
Cyngor Sir Ddinbych/Denbighshire County Council