Forty Years of Fun

Local Councils and the Law from 1972 to 2012

By Nicholas Hancox

When I left University in 1972, I had a job interview with John Whatley, the venerable Town Clerk of Andover Borough Council. He was a grey-haired Quaker gentleman, with a heart of gold and a presence like granite. He thought I was a bit flighty, apparently, but he gave me the job anyway. Towards the end of the interview, he had said, "Have you any questions that you would like to ask me?", "Yes", I replied, with all the prescience of a man who knows everything at 21, "What about the Local Government Act 1972 Re-organisation? What will happen to my job then?" "What indeed?" said the Town Clerk, "What indeed?"


The Local Government Act 1972 tried to reduce the number of councils, in order to increase accountability and efficiency. Many local councils objected to the loss of their Mayor, so somebody invented Charter Trustees, a device whereby the ceremonies of mayoralty were retained without the inconvenient adjunct of a small Borough UDC running its own housing and planning departments. There was huge row over precedence: would the new District Council's Chairman be more important than the Town Mayor? There was another row over property. Who would own the UDC's Town Hall, now that it was full of District Council housing officers? What user rights would the Parish or Town Council retain in its old Civic Centre? Who would own the Mayor's Chain and the Daimler? If there were five Clerks in the outgoing UDCs and RDCs, which one would get the Chief Executive's job in the new District? Some of these rows are still going on forty years later, especially the ones about User Rights.


Some of us never really noticed the implementation of the 1972 Act on 1st April 1974; we were far too exhausted from running the simultaneous new shadow councils and the old councils - and then moving house to take up our new jobs. We spent hours and days examining the Local Authorities (England) (Property Etc) Order 1973 to see if we could ascertain who now owned that corner of grassland on the edge of town, or the war memorial, or the market or the byelaws or the sports centre attached to the College but used by the community.


My favourite Act of Parliament (Doesn't everybody have one?) is the Local Government (Miscellaneous Provisions) Act 1976. Section 11 says that "a local authority may produce heat or electricity or both" and many of them did. Section 19 gave parish and town councils the power to own and operate tennis courts and playing fields, although most of us had been doing it for many years without that Parliamentary blessing.


Who can forget the Local Authorities' Cemeteries Order 1977? Its marvellous compendium of do's and don'ts covered the necessary vertical separation between buried coffins and in the same breath prohibited skateboarding between the gravestones.


Box Parish Council (in Wiltshire) wanted to register a local beauty spot as common land, but they lost their case against the owner of the land, when he appealed to the Court of Appeal. It was a dispute about the circumstances in which 'waste land of the manor' might or might not be registered as common land. Box Hill Common turned out not to be registrable, but the ruling was effectively reversed - for the rest of us at least - by the Commons Act 2006.

The 1980s

Nothing much happened in the 1980s. The Litter Act 1983 was a damp squib and dog licences were abolished by the Local Government Act 1988. The 1980s were so bad that a Parish Council in Suffolk passed a resolution on 1st January 1990, asking the Government to run the 1980s again and to do it better next time.


A statutory chicken-and-egg conundrum has us wondering about cause and effect in the Welsh Language Act 1993. Wales as a nation is now entirely bilingual, even if many of the older Welsh people are proudly monoglot. The youngsters, of course, now have to learn both English and Welsh at school. And for nearly twenty years now, Community Councils in Wales have spent a lot of time duplicating signboards, notices, agendas and minutes in two different languages.


In Ostle v Alnwick Town Council (in Northumberland), the Town Clerk ordered the cemetery groundsman to add to his duties the locking and unlocking of the cemetery gates, mornings and evenings, to prevent cars from entering the cemetery at night. Mr Ostle claimed overtime but the employer said "No." Mr Ostle's Union, NUPE, took the Council to the Court of Appeal and the Union won.


The Data Protection Act 1998 either made us all accountable and straightforward in our dealings with people's private information or, if you look at it from the other end of the telescope, it made us all paranoid about what was on our computers. Meanwhile, the Government of Wales Act 1998 began Welsh Devolution and local authority law in Wales began, slowly at first, to diverge from English Law across the Border.


Sunningwell Parish Council (in Oxfordshire) found themselves up before the House of Lords . In his judgment, Lord Hoffmann said that the glebe at Sunningwell was an open space of about 10 acres. It used to form part of the endowment of the rectory. The rector had let it for grazing and received the rent. In 1978 it had been transferred to the Diocesan Board of Finance. Local people used it for walking their dogs, playing family and children's games, flying kites, picking blackberries, fishing in the stream and tobogganing when snow fell. Could it and should it be registered as a Village Green? The PC said "yes, please", but the DBF fought them all the way. The decision came down to whether the use of the glebe was use "as of right" and the happy Parish Council came home victorious.


Instead of the Millennium Bug, the Freedom of Information Act 2000 came to haunt us. Suddenly, the Council's private papers were the council's public papers. Those rude remarks you put in your file about Councillor X in the happy knowledge that your files were yours, suddenly became an embarrassment and we all went out to buy a shredder for the office. If a document had ceased to exist, nobody could demand to see it.


The Standards Board for England was created in 2001, when part of the Local Government Act 2000 was introduced. Did the Board ever do any good? It has been abolished now, so there is a History PhD thesis waiting to be written. Any offers? Thought not.


Section 90 of the Local Government Act 2000 was brought into force and abolished the power to surcharge council members in England, after an audit.


In June 2007 it was the turn of Godmanchester Town Council (in Cambridgeshire) to take their case to the House of Lords. Godmanchester wanted a public right of way added to the Definitive Map. The 20 years' use "as of right" depended on a legal fiction that this landowner must have dedicated the land to that use since time immemorial (1189), but the Church Commissioners, who owned the land said they had not intended to dedicate the way to the public use at all. The House of Lords held that the landowners' intention 'not to dedicate' must be communicated properly to the users of the way. If it were communicated properly, the users were defeated. If not, the users won. The outcome of the case in Godmanchester was good news for the Town and bad news for ramblers. Godmanchester won their case on its facts and made it much easier for landowners across the country to prevent other new rights of way from being registered.


The Local Government and Public Involvement in Health Act 2007 brought to parish and town councils in England in 2008 the power to call themselves a Neighbourhood Council or a Village Council instead of the traditional Parish or Town or Community Council. Then the Power to Promote Well-Being was extended to first-tier councils, but only if you successfully jumped through a long line of hoops first. (Not many did.)


Appleby-in-Westmorland Town Council were on the receiving end of a Court of Appeal case, when Mr Glaister was kicked in the head by a horse at the Appleby Horse Fair. It was the Town Council's fair, but it was not their horse! The TC was found to be not negligent in failing to insure or control somebody else's horse.


It was not until 2010 that Reorganisation of Community Governance Orders became at all common. Section 99 of the LG&PIH Act 2007 had been in force since 2008 and heralded a slow but welcome expansion in the ranks of first-tier councils. New local councils began to emerge in what turned out to be one of the better (and less dramatic) reorganisations of local government.


How excited we all were. It seems an eternity ago now, but the Localism Act 2011 brought us the General Power of Competence - a universal power to do everything, with a zillion conditions at every turn.


I don't know about you, but I can remember what happened in 1972 like it was last week, but can it really be 2012 already? Forty years of fun! Let's do it all over again. No, really.

Nicholas Hancox