|
Bath & North East Somerset Council |
MEETING: |
COUNCIL |
AGENDA ITEM NUMBER | |
MEETING DATE: |
25TH MAY 2000 |
||
REPORT AUTHOR: |
VERNON HITCHMAN |
||
RESPONSIBLE OFFICER: |
SOLICITOR TO THE COUNCIL |
||
|
TITLE: |
HOUSING STOCK TRANSFER - OPEN SPACE DISPOSAL ISSUES | ||
|
WARD: |
ALL | ||
|
BACKGROUND PAPERS: NONE | |||
|
AN OPEN PUBLIC ITEM | |||
1 PURPOSE OF THE REPORT
To recommend that the Council should adopt a policy of consultation with interested parties in the event of the Council’s consent being sought to a disposal or change of use of land in accordance with the terms of the agreement under which its housing stock and associated land transferred to Somer Community Housing Trust.
2 RECOMMENDATIONS
2.1 That in the event of the Council’s consent being sought under the terms of the Transfer Agreement dated 29th March 1999 between the Council and Somer Community Housing Trust, the Council should:
2.1.1 Consider whether the land in question would, but for the transfer to Somer, fall within the definition of “open space” within the meaning of Section 123 of the Local Government Act 1972 and, if it does,
2.1.2 Follow a procedure equivalent to that laid down by the Act.
2.2 That the Solicitor to the Council be authorised to determine the applicability of the above policy in the event of consent being sought.
2.3 That Somer Community Housing Trust be advised of the Council’s policy in this respect.
3 HOUSING STOCK TRANSFER
3.1 As the Council will be aware, the transfer of the Council’s housing stock following ballot took place in what was recognised as being an extremely short timescale and Officers, Members and retained Consultants had to undertake a considerable amount of work within a number of tight deadlines to achieve the Council’s objective of stock transfer by 31 March.
3.2 Numerous issues arose which needed to be swiftly addressed and resolved and Members and Officers took all reasonable steps that best practice was followed and expert advice taken whenever required.
3.3 Housing Stock Transfer is a complicated and specialist topic where it is prudent and necessary to engage the assistance of those experienced in the field. This was done in this case with the assistance of a number of experienced Consultants, including Lawrence Graham, Solicitors, who had acted in a number of previous stock transfers. The Council were of necessity reliant upon them to ensure that the proper steps were followed.
3.4 One of the many issues which fell to be resolved during the course of the process was the applicability of Section 123 (2) of the Local Government Act 1972 to any or some of the transfer process. Section 123 (2) of the Act lays down a statutory requirement that the Council, before selling or letting “open space”, should:
(a) advertise publicly a notice of its intention to dispose of the land and;
(b) consider any objections received to the disposal within the period laid down;
(c) consider in the light of those objections whether to continue with the disposal.
Council Officers duly raised the issue with the Council’s retained solicitors who considered the issue, sought further advice themselves and then offered their advice as to how the Council should proceed in the light of all the circumstances known at that time.
3.5 The advice was duly considered and acted upon. Subsequently a concerned member of the public raised with the District Auditor the issue of whether or not the Council was right to have proceeded as it did. The issue has accordingly been reconsidered afresh.
3.6 To put the issue into context, it is necessary to have an appreciation of the scale of the transaction and the number of areas of land that could have fallen within the definition of “ Open Space”. It is also necessary to consider:
(a) the purpose for which the legislation was put in place; and
(b) previous practice in respect of housing stock transfers. This is done in the following paragraphs 3.8 and 3.9.
3.7 The Council’s housing stock consisted of some 10,000 houses and the extent of the disposal extended to some 230 A2 sized plans. The Council’s housing transfer sub committee considered a detailed report on a number of issues relating to various assets and liabilities and formulated guiding principles concerning land that did not form part of houses, flats or gardens. Those principles were used to guide the extent of the land finally sold to Somer.
3.8 Although the Council’s housing stock transfer was one of the larger undertaken to date, the disposal of a number of areas of open land within estates, play areas and so on was not an unusual feature of this transaction. Nevertheless it appears to be common practice for disposals, which were subject to the consent of the Secretary of State, not to feature any advertisement and subsequent consideration of any objections.
3.9 The purpose of the legislation is to enable the public and those concerned to make representations about the disposal. This would normally be in the context of a proposed change of use of the land from public open space to some other use, unlike here where it is proposed that the land disposed of should remain in its current use and moreover that the Council should control and approve any subsequent alternative uses of the land.
3.10 I have concluded, that the Council should have, as part of the process leading to the transfer outlined at paragraph 3.7 above, addressed the question of whether any of the land to be sold could be construed as being “user for the purpose of public recreation” within the meaning of Section 123(2). Had it done so, in my view it would have concluded that the following areas of land should have been the subject of public advertisement:
- the 19 play areas on estates leased to Somer on 20 year leases.
- some 10 grassed areas within estates used by residents for walking, playing games, etc.
3.11 At the time that consideration was given to what areas of land were to be transferred, the view was taken that “amenity land” was cost neutral in value terms insofar as the ongoing maintenance liabilities that were to be transferred were equal to, or greater than, the nominal value of land in its current and only permitted use.
4 CURRENT POSITION IN RESPECT OF THE TRANSFER
4.1 It is clear that, whether or not there was a need for the Council to have complied in any or some respects with the provisions of Section 123, that the transfer of all the land in question was valid and effective in law in accordance with Section 128 of the Act..
4.2 The consequence so far as the public is concerned is that they have lost the statutory right to object to the disposal of open space, since the provisions of Section 123 would not apply to any disposal by Somer. Nevertheless, the Council’s consent is required under the terms of the Transfer Agreement to any disposals by Somer of its land and it is open to the Council to decide to give that consent only following views being sought of those affected. It would therefore be open to the Council to replicate the Section 123 procedure as part of its consent process.
5 GENERAL POSITION IN RESPECT OF SECTION 123
5.1 It is clear, as a matter of record, that the Council and its Officers are well aware of the requirements of Section 123 and there is no evidence that its provisions have not been followed previously. As can be seen from paragraph 3.4 above, Council Officers were aware of the issue and sought specialised advice as to its applicability in this particular specialised area.
6 CONSULTATION
Somer Community Housing Trust has been consulted in the preparation of this report, and the District Auditor has been notified of the proposals.
VFH - OpenSp.REP
