STRATFORD-UPON-AVON TOWN COUNCIL
TOWN COUNCIL MEETING
3 OCTOBER, 2017
TOWN CLERK’S OPEN REPORT
1) Christmas Festival Budget
· To amend the budget to include a provision for expenditure on the forthcoming three day Christmas Festival of no more than £26,653
Members have already received a briefing note so will be aware that the new market contract included a three day Christmas Festival and as a result, uplift on market income is anticipated.
Market income at the start of Geraud’s incumbency was £100,000 and by the close of the contract five years later, market income had risen by the rate of inflation to £108,847 per annum with an SDC/STC split of 60% SDC (£65,308) and 40% STC (£43,539).
The new contract with LSD Promotions Limited, which comes into effect on 1 October, 2017 attracts an income of £135,500 per annum and sees an income uplift of £26,653.
At the time of the 2017/2018 budget setting, the new contract had not been awarded, so only the current market income was included. Thus, the £26,653 uplift does not appear in the budget.
A provision for the Christmas Festival was excluded from the budget, as it was an unknown quantity at the time. It is therefore proposed that the costs incurred in staging the event are funded by this uplift. Once again the split is on a 60/40% basis. Currently, the draft budget is estimating expenditure in the region of £24,000, with £5,000 income. In time, it is hoped and anticipated that the Festival will be self-financing but not whilst it is establishing itself as a major Christmas event for the district.
Income and expenditure appertaining to the Christmas Festival is anticipated in the 2017/2018 fiscal year. In terms of an audit trail, although the matter was raised at the last Finance & Scrutiny Committee Meeting, it was not an agenda item and was received as a report for information only. The Chairman of the Finance & Scrutiny Committee and the Mayor therefore agreed that this matter should be referred to the 3 October Town Council Meeting in order that a budget provision be formally agreed and documented.
Both the District and Town Councils are incurring expenses which are subject to purchase orders by both authorities. Once the Festival is over and monies to external creditors settled, the Councils will justify the account so it is apportioned on a 40/60% basis.
It is recommended that a budget provision of no more than £26,653 is included in the 2017/2018 budget and that should there be an underspend, and subject to the agreement of the Market Forum, the money is accrued for future Festivals until such time as the Christmas Festival is self-financing.
2) Future Approach to Section 106 contributions
· To respond to SDC in line with the LCPAS recommendation
In August, 2017 the District Council approached town and parish councils regarding proposed changes to the distribution of s106 monies. It is a noteworthy bullet point in the briefing that there is no compulsion on the Parish Council to enter in to this contract. If the Parish Council chooses it may continue with the current, usual process.
The briefing detailed below set outs the situation as it is now and the proposed changes:
Background
· Planning applications for development attract financial contributions which may be identified to be spent on leisure, recreation or sport projects within a Parish area;
· The District Council is obligated to ensure the contributions are spent in accordance with the terms of the s106 agreement;
· The District Council may pay the money to the Parish Council against the cost of a project conceived and developed by the latter;
The Current (usual) Process:
· The Parish Council identifies a project, provides details (including quotes, drawings, specifications etc.) to the District Council;
· The District Council approves the project and associated costs if they comply with the obligations of the s106 agreement;
· The contribution is paid to the Parish Council on completion of the work and on receipt of an invoice from the contractor;
· The District Council may inspect the project to ensure compliance.
· This approach is unnecessarily time consuming for both District and Parish Councils;
Proposed Future Approach
· With the Parish Council’s agreement, the District Council will provide a contract for the Parish Council to sign which passes all of the District Council’s obligations, under the s106 agreement, to the Parish Council;
· The contract will refer to the specific s106 agreement and its terms and will allow the Parish Council to take control of creating and carrying out the project and of paying its contractor without recourse to the District Council;
· The monitoring aspect of the contract will only involve the Parish Council providing copies of invoices and photos of the project to the District Council, once it is complete;
· The form of the contract will vary depending on the amount of contribution involved;
> Where the sum is £10,000 or less, the
contract will be in the form of an exchange
of letters;
> Where the sum is more than £10,000, the
contract will be formally drafted;
· There is no compulsion on the Parish Council to enter in to this contract. If the Parish Council chooses it may continue with the current, usual process, outlined above;
· The contract is very simple and straight forward, covering only what it must cover (it is a lengthy document nonetheless).
The briefing was originally submitted to Planning, for CIL or the equivalent (s106), is kept under review by the Planning Committee.
Owing to the financial implications however, the matter was referred to the Finance & Scrutiny Committee and the discussion was minuted as follows:
F& S Meeting 12.9.17 – Minute 27
Some Members had noted section 8.1 requiring acknowledgement of SDC as the source of the contribution was disingenuous, as the funds originated from developers.
It was AGREED that expert advice would be needed on the proposed Contract for any projects over £10,000, and that the matter should go to Council with the recommendation to adopt the new approach in principle, unless advised otherwise.
The matter has therefore been referred to Town Council but the Council’s Planning Consultant has not had time to respond to the request for his views on the matter. However, the Town Clerk also contacted the Local Council Public Advisory Service who has responded with a recommendation as well as outlining a number of observations:
Briefing by LCPAS:
1. s106 expenditure is agreed with the developer and it can be used for anything to benefit the parish. The planning authority has made agreements that only benefit leisure, sports or recreation projects. By arrangement with the developer, the agreements could be renegotiatedif the use is no longer fit for purpose;
2. Planning Authorities can now only pool 5 agreements per project (agreed use);
3. s106 is time limited and if not spent may go back the developer;
4. It is not usual practice to request that Councils should submit detailed plans of the project they wish to use the money for. The Planning Authority can agree that the proposed project meets the criteria and release the money to the Town Council;
5. The Planning Authority should give the contribution up front and not wait until a project is completed. This is because a Council may not have the means to undertake the work without the funding being in place;
6. There is no requirement under s106 for the Planning Authority to visit the site of the project and check compliance. This can be easily fulfilled with photographsand a report;
7. £10,000 is too low a threshold to compel the Town Council to enter into a contractualagreement. It would make far more sense for the agreement to have a trigger of £25,000 in line with the Public Procurement Regulations;
Contractual Agreement:
(2)(A) A Town Council and other interested parties may be party to any s106 agreement;
(2)(D) An agreement can be renegotiateif the use is no longer fit for purpose and it is used to offset the negativeimpact of that development on that locality (not for use anywhere else);
2.1 The agreement is made by virtue of LGA 1972 s111 and Localism Act 2011. This agreement should be made by virtue of Town and Country Planning Act 1990 s106. LCPAS is not sure that s111 can be used to facilitate the use of General Power of Competence. This is because GPC allows an authority to do anything a person can generally do. In this case a person could not pay over any s106 contributions, this is limited to the Planning Authority. In other words, LA s111 is not the appropriate power for this agreement;
3.2 The agreement could be changed subject to agreement of all parties;
4.4 Councils do have business accounts and some use co- operatives of community interest , such as CAF Bank;
4.5 As above;
5.2 The contribution period is a little vague. LCPAS consider that as long as the money has been paid over for the agreed use, it will not matter if the project overruns this period. The legal obligation has been met;
5.3 The Town Council has the power to accept gifts and for all intents and purposes, the money paid over is a gift to carry out a project for an agreed amount. There should be no compulsionto repay any underspend once the project has been completed;
6.2 The Town Council can have a separateheading within its cash book and accounts but not separateaccounts. Any s106 monies would have to be shown within the accounts otherwise it could not reclaim VAT. The Town Council could provide a statement of that cash book heading and report;
6.3 All records relating to accounts are required to be kept for a period of 7 years;
6.4 It is not clear whythe Town Council would have to issue its annual accounts to the Planning Authority as they would have receiveda report and statement of accounts regarding the s106 expenditure;
7.2 Repeats the above;
7.3 It is a legal requirement;
7.4 It is a legal requirement to have employees liability insurance and most Councils have public liability insurance;
7.7 The Town Council is an authority in its own right and a ‘child of no other’. In other words, SDC cannot direct the actions of the Council. LCPAS wouldsuggest that this states ‘by mutualagreement’;
12.2 District Council and its officers are covered by their own insurance. There should be no need for the Town Council to indemnify SDC;
14.1 The Town Council has a policy already in place;
19.2 The Town Council will also have access to a legal remedy if SDC negotiationsfail, or they do not hand over the agreed sum as per this agreement (contract);
21 This contradicts the briefing paper and it is a contractual agreement that SDC requires those who wish to gain s106 funding to enter into.
LCPAS would recommend that Stratford-Upon-Avon Town Council raise these points with Stratford-on-Avon District Council before entering into any agreement.
Delay in the implementation of CIL
Although this agenda item relates to s106 governance specifically, there is still the expectation that the CIL levy will generally supersede s106. The Town Clerk, Finance Officer and Chairman of Planning Committee were due to attend SDC’s training on CIL on 14 September but were advised that the training had been rearranged for 19 October. Unfortunately, due to a training seminar elsewhere, both officers are unable to attend and the date is also not convenient for Councillor I Fradgley.
However, it is understood that the CIL Training planned for 19 October has also been postponed and is now likely to take place early in the New Year.
SDC advise that unfortunately, the definitive report from the planning inspectorate has only recently been received and has to be considered by full Council. Work has then got to be undertaken on how CIL isoperated and monitored. When the outcome of this process is agreed, a member training session will be organised and STC will be notified of the new date.
3) Code of Conduct – Update
· To note the report
The Town Clerk attended a WALC Clerk/Councillor Liaison Meeting at the District Council on 20 September and received a verbal briefing by one of the Assistant Monitoring Officers, Oliver Hughes, on the new Code of Conduct and its timetable.
· The existing Code, devised by the DCLG which was also adopted by all except one of the parish/town councils in the district, has been in place for five years and came into effect in July, 2012.
· It was considered that the existing Code was not sufficiently clear in setting standards and expectations, and that the new Code should be short and simple with greater clarity so that councillors and the public would fully understand expectations and interests.
· The NOLAN principles still lay at the heart of the new Code and there will be seven simple behavioural expectation statements at the beginning of the Code, with all the covering detail contained under separate guidance.
· It was considered that the existing Code does not give enough clarity and was too subjective with regards to members’ interests with regard to that of themselves and close associates such as partners, family, friends etc. This is being addressed in the new Code and members and the public should have a better understanding of when a member can and cannot speak on a matter.