The Local Government (Structural Changes) (Transitional Arrangements) (No.2) Regulations 2008

EXPLANATORY NOTE

(This note is not part of the Regulations)

Part 1 of the Local Government and Public Involvement in Health Act 2007 (the “2007 Act”) provides for the establishment of a single tier of local government for areas in England. There is a single tier of local government for an area if there is either a county council and no district councils for that area, or a district council and no county council for that area (section 1(2) of the 2007 Act). Where the Secretary of State has received a proposal or a recommendation that there should be a single tier of local government for an area, he may make an order to implement the proposal or recommendation with or without modification. These Regulations make incidental, consequential, transitional and supplementary provision of general application in relation to the exercise of functions by local authorities during the transitional period (defined in regulation 2) for the purposes of, and in consequence of, orders made by the Secretary of State under section 7 of the 2007 Act (“section 7 orders”).

Section 14(3) of the 2007 Act provides for these Regulations to have effect subject to any provision included in such an order. Regulation 1(2) provides that these Regulations have no effect on matters for which provision has been made in other regulations and orders of specified descriptions or in agreements under section 16 of the 2007 Act.

Regulation 2 contains definitions. Other terms that appear in only one Part of the Regulations are defined in regulation 8 (for Part 3), regulation 10 (for Part 4), regulation 15 (for Part 5) and regulation 18 (for Part 6).

In Part 2, regulations 3 to 5 deal with continuity. Regulation 3 provides for references in enactments (defined in paragraph (6)) to councils that are to be dissolved in accordance with section 7 orders to be read after the date specified in the order as that on which certain councils are dissolved and the administration of their areas becomes the responsibility of one or more single tier councils (the “reorganisation date”) as references to the single tier council. The provision also operates in relation to references in enactments to the areas of councils that are to be dissolved (counties and districts). Where a provision of an enactment applies to a particular area, it continues to apply after the reorganisation date only to that area. Regulation 4 makes similar provision in relation to things done, or in the process of being done, by or in relation to a dissolved council. Regulation 5 contains limitations relevant to regulation 4

Regulations 6 and 7 deal with responsibility, within particular authorities, for the discharge of functions in the period before the reorganisation date. Regulation 6 applies to a shadow council (defined in regulation 2) whose shadow executive is appointed by, or nominated in accordance with, a section 7 order. Most of the functions are to be discharged by the shadow executive, but where a shadow council intends to prepare a plan, scheme, statement or strategy of a description specified in regulation 13(1), and elections to its related single tier council are not due to be held in 2009, the function of preparing the plan, scheme, statement or strategy is to be that of the shadow council itself. The function of carrying out a review of any of those plans, schemes, statements or strategies is also to be that of the shadow council. Regulation 7 applies to a preparing council (defined in regulation 2) for which there is an Implementation Executive. Functions are to be “transitional functions” for the purposes of the section 7 order which establishes the council’s executive, with the consequence that responsibility for the discharge of the function is that of the council’s Implementation Executive.

In Part 3, regulation 9 deals with electoral matters for which action may need to be taken in the period before the reorganisation date. Before 30th November 2008, preparing councils, other than district councils, and shadow councils must appoint one of their officers to discharge the duties in relation to elections to the European Parliament to be held in 2009 that fall to be discharged by the local returning officer. That officer is also to discharge the duties in relation to any parliamentary election for which a writ is issued after 30th November 2008 that fall to be discharged by the acting returning officer.

In Part 4, regulation 11 requires shadow councils and preparing councils which are county councils to prepare for the whole of their areas certain plans under the Civil Contingencies Act 2004, the Control of Major Accident Hazards Regulations 1999 and the Radiation (Emergency Preparedness and Public Information) Regulations 2001. The plans are to be prepared before the reorganisation date and will be treated, on and after that date, as if they had been prepared by the single tier councils (though those councils may, if they wish, prepare plans in substitution for those prepared by the preparing or shadow council).

Regulation 12(1)(a) requires preparing councils which are county councils, and shadow councils, if able to do so before the reorganisation date, to prepare:

• an allocation scheme under section 167 of the Housing Act 1996;

• a statement of licensing policy under section 5 of the Licensing Act 2003;

• a statement of principles under section 349 of the Gambling Act 2005; and

• a statement of the policy for the provision of assistance under article 3of the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002.

Regulation 12(1)(b) makes similar provision in relation to a shadow council and a preparing council which is a district council as regards the preparation of an accessibility strategy and plan under section 28D of the Disability Discrimination Act 1995 and a children’s and young people’s plan under regulation 3 of the Children and Young People’s Plan (England) Regulations 2005.

Regulation 12(1)(c) makes similar provision in relation to a shadow council and a preparing council which is a county council as regards a homelessness review and preparation of a homelessness strategy under the Homelessness Act 2002.

If the relevant preparing or shadow council has been unable to prepare any of these documents before the reorganisation date, the single tier council must prepare them within the following 12 months.

Regulation 13 requires each preparing and shadow council which is able to do so before the reorganisation date to prepare a sustainable community strategy under section 4 of the Local Government Act 2003. If the relevant preparing or shadow council has been unable to prepare a sustainable community strategy before the reorganisation date, the single tier council must prepare one within the following 24 months.

Regulation 14 makes provision for continuity as regards other plans, schemes, statements and strategies prepared by preparing councils or councils that are dissolved on the reorganisation date. Plans, schemes, statements or strategies prepared under the Planning and Compulsory Purchase Act 2004 or regulations under that Act are excluded, and the provision does not apply if other regulations under section 14 of the 2007 Act make different provision.

Part 5 deals with transitional arrangements relating to membership of certain committees that exercise licensing and planning functions (see the definitions in regulation 15 of “licensing functions”, “planning functions” and “relevant committee”). Regulation 16 enables the Implementation Executive of a preparing council other than a district council (excluded by paragraph (6)) which on the reorganisation date will become a single tier council for which elections will be held in 2009, to resolve:

• that any of its members who are not also members of the preparing council shall serve as co-opted members of the single tier council’s licensing or planning committees until the fourth day after the ordinary day of election of councillors in 2009;

• that a person who is a member of a licensing committee of a council of which the preparing council is the successor shall serve as a co-opted member of any of the single tier council’s licensing committees until the fourth day after the ordinary day of election of councillors in 2009;

• that a person who is a member of a planning committee of a council of which the preparing council is the successor shall serve as a co-opted member of any of the single tier council’s planning committees until the fourth day after the ordinary day of election of councillors in 2009.

Regulation 16(8) provides that the co-opted membership is not affected by the dissolution of the council by virtue of which the co-opted person became a member of the preparing council’s Implementation Executive (relevant to the first case) or the dissolution of the council of whose committee the co-opted person was a member before the reorganisation date (relevant to the second and third cases). Regulation 16(10) enables the Implementation Executive to adjust the co-opted membership to deal with, for example, persons who are disqualified or suspended and the filling of vacancies.

Regulation 17 disapplies section 15 of the Local Government and Housing Act 1989, which relates to political balance on local authority committees, in relation to appointments, whether made before or after the reorganisation date, to the same licensing and planning committees as are referred to in regulation 16, where the single tier council succeeds a county council and is to hold elections of its councillors in 2009. But paragraph (2) of the regulation makes provision for appointments to be made to those committees, so far as practicable, so as to ensure that the seats on the committee are allocated to particular political groups in the same proportion as the seats on the preparing council’s Implementation Executive are for the time being or, in the case of appointments by the 2009-electing council, were immediately before the reorganisation date, filled by persons who are members of particular political groups. In making such appointments account must be taken of the membership of particular political groups of the persons (if any) in respect of whom the preparing council has resolved (under regulation 16) that they should be co-opted to the committee concerned. These rules affect the making of appointments only where the period of membership ends before on the fourth day after the ordinary day of election of councillors in 2009. The effect of paragraphs (4) to (6) of regulation 16 is to enable an Implementation Executive to dispense with these rules if the preparing or 2009-electing council concerned has approved alternative arrangements in the manner prescribed by the Secretary of State and no member of the Implementation Executive voted against disapplying the rules.

Part 6 contains transitional arrangements relevant to certain planning functions. Regulation 19 provides for continuity as regards local development documents for the purposes of section 23 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). Regulation 20 modifies Part 1 of the 2004 Act and the Town and Country Planning (Regional Planning) (England) Regulations 2004 as regards regional planning functions. Regulation 21 modifies Part 2 of the 2004 Act (subject to regulations 22 and 23) and the Town and Country Planning (Local Development) (England) Regulations 2004 as regards local development functions. Regulations 22 and 23 make modifications in relation to the application of section 15 of the 2004 Act to local development schemes (other than minerals and waste development schemes) and statements of community involvement, respectively. Regulation 24 provides for continuity as regards certain joint committees established under section 29 of the 2004 Act and for their dissolution.

In Part 7 regulation 25 deals with functions relating to education. It requires the establishment by shadow councils and by preparing councils which are district councils of transitional schools forums that, in relation to the financial year beginning on the reorganisation date, and instead of the Schools Forums of councils which are to be dissolved on that date, are to serve the same purposes as are served by Schools Forums under the School Standards and Framework Act 1998.

In Part 8, regulation 26 provides for the discharge of functions under Part 6 of the Local Government and Housing Act 1989, which relates to housing finance, so far as those functions need to be discharged before the reorganisation date as regards the financial year beginning on 1st April 2009. The functions are to be discharged by the council (either the preparing county council or the shadow council) that is to succeed on the reorganisation date the council that would otherwise have discharged those functions.

Regulation 27 relates to functions under the Homelessness Act 2002 other than those for which provision is made in regulation 12(1)(c). Where such functions are to be discharged before the reorganisation date and in relation to the year beginning on that date, that Act is to be effect as if references to a local housing authority included references to a shadow council and to a preparing council which is a county council.

Regulation 28 relates to reports (whether in draft or final form) of statutory audits, inspections and investigations that are received by a council which is to be dissolved on the reorganisation date. Depending on the type of council that is involved in the arrangements for the transfer to single tier local government on the reorganisation date, the council that receives the report is required to send a copy of it to the proper officer of the Implementation Executive of the preparing council or to the proper officer of the preparing council or the shadow council. If as a consequence of the report, the council that is to be dissolved is minded to vary in a material respect any of its policies, procedures or structures, it can do so only if it has first consulted the relevant preparing or shadow council and has taken account of any comments received.

Regulation 29 applies to a single tier council which is a county council, is required by a section 7 order to hold an election of its councillors in 2008, and is changing its governance arrangements to move to a “new style” leader and cabinet executive (the leader and cabinet executive (England)). The regulation disapplies subsections (4) and (5) of section 33G of the Local Government Act 2000 (sections 33A to 33O are inserted by section 64 of the 2007 Act) and certain transitional provisions in Part 1 of Schedule 4 to the 2007 Act. It also modifies section 33G(2), as applied by the transitional provisions, with the effect that the council must stop operating its current arrangements and move to its new arrangements on the day before its first meeting after the reorganisation date.

Regulation 30 requires a single tier council which is a county council to treat its first meeting after the reorganisation date as its post-election annual meeting for the purposes of section 44A(2) of the Local Government Act 2000. The effect is to require such a council to elect the executive leader at that meeting. (If it fails to do so, section 44A(3) of that Act provides for the executive leader to be elected at a subsequent meeting of the council.)

Regulation 31 requires every shadow council and every preparing council which is a county council and to review and, where appropriate, revise any plan prepared under regulation 25 of the Pipelines Safety Regulations 1996 (emergency plans in case of major accidents) which is to have effect in the council’s area on and after the reorganisation date. The duty is to be discharged before the reorganisation date. Regulation 25(3) of those Regulations is modified so that the three-year cycle of reviews of the plan begins in the third year after that in which the reorganisation date falls.

Regulation 32(1) enables a council that is to be dissolved on the reorganisation date to elect as honorary aldermen not only past members of the council but also serving members. Regulation 32(2) provides for honorary aldermen of a dissolved council to become honorary aldermen of its successor council on the reorganisation date, but where there is more than one successor council, those persons may become honorary aldermen of one of the successor councils or of another local authority, depending on the location of the electoral area for which the person was last returned as a councillor of the dissolved council.

Regulation 33 makes similar provision in relation to persons who are honorary freemen.

In Part 9, regulation 34 substitutes paragraphs (6) and (7) of regulation 5 of the Local Government (Changes for England) Regulations 1994, which deals with the construction of enactments in consequence of orders made under section 17 of the Local Government Act 1992. The substitution makes it clear that paragraphs (6) and (7) are concerned only with orders under section 17 of the 1992 Act and achieves consistency with regulation 3(1) and (2) of these Regulations.

A full impact assessment has not been produced for these Regulations as no impact on the private or voluntary sectors is foreseen.