NALC Legal Topic Notes: Models / Procedures

This page contains Legal Topic Notes which include information on Models / Procedures.

 

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[4] THE POWERS OF A COMMUNITY MEETING IN COMMUNITY WITHOUT A SEPARATE COMMUNITY COUNCIL

 

The community meeting of a community consists of the local government electors for the community (section 32(1) Local Government Act 1972). The meeting is not required to assemble annually, but may meet at any time (paragraph 30(1) of schedule 12 to the 1972 Act).

 

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[8] ELECTIONS

 

A number of changes were made to electoral arrangements by the Electoral Administration Act 2006 (“the 2006 Act”). Relevant amendments have been incorporated into this Note.

 

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[9] HANDLING COMPLAINTS

 

This Legal Topic Note sets out the statutory and recommended procedures to be used when there is a complaint made to a local council. This document is intended to assist local councils in England to deal with complaints they receive and includes a draft complaints procedure.

 

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[10] ROYAL VISITS

 

By virtue of section 3(4) of the Local Government Act 1972 ‘The chairman of a district council shall have precedence in the district, but not so as prejudicially to affect Her Majesty’s royal prerogative’

 

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[11] CELEBRATIONS AND SIMILAR EVENTS

 

Parish, town and community councils often wish to celebrate some national event (e.g. Royal Jubilee) or a local event (e.g. anniversary of the council). The celebration may be marked by a single event (such as a street party) or by a permanent object (such plaque or sign) or a combination. This advice is of general application in respect of the powers of local councils to organise celebratory events or objects and to incur expenditure for that purpose. This Legal Topic Note sets out the relevant statutory and other legal provisions.

 

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[12] HONORARY TITLES AND OFFICERS OF DIGNITY

 

Individuals may enjoy special status in their local area in a variety of different ways. Such status can be by appointment, by conferment or by admission. This Legal Topic Note concentrates on the titles of freemen, officers of dignity and honorary freemen and freewomen. It will first consider the current situation in respect of the ancient titles of freemen and officers of dignity. Then it will outline the position in relation to the power to appoint honorary freemen and freewomen.

 

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[14] BYELAWS

 

A byelaw has been judicially defined as “an ordinance affecting the public or some portion of the public, imposed by some authority clothed with statutory powers, ordering something to be done or not to be done and accompanied by some sanction or penalty for its non-observance”. A byelaw thus supplements, but does not supplant, in its area of application the ordinary statute or common law which applies throughout England and Wales.

 

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[15] LEGAL PROCEEDINGS

 

Local councils get involved in legal proceedings for a number of reasons. Sometimes councils will be responding to claims made against them (in which case they will be the Defendant) and on other occasions councils will use their powers to commence proceedings themselves (in which case they will be the Claimant). The purpose of this Note is to set out the powers local councils have to commence or defend legal proceedings which, for convenience, will be termed collectively as ‘litigation’.

 

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[16] CONTROL OF LITTER

 

The law relating to the control of litter was thoroughly overhauled by Part IV of the Environmental Protection Act 1990 (the 1990 Act) with the aim of placing primary responsibility for the control of litter on highways and other areas of land, to which the public have access, on the appropriate local authority. In addition, the legislation provides that the owners and occupiers of land (including local councils) can be required to keep their land free from litter. Changes to the law made by the Clean Neighbourhoods and Environment Act 2005 are incorporated within this Note. Legal briefings (Refs. L03-06, L05-06) regarding Clean Neighbourhoods and Environment Act 2005 (the 2005 Act), are also available.

 

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[17] CONTROL OF DOGS

 

The law in relation to the control of dogs was amended significantly by sections 55 and 56 of the Clean Neighbourhoods and Environment Act 2005 which permits the introduction of “Dog Control Orders.” Those amendments are discussed at the end of this note.

 

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[18] LOCAL COUNCILS’ POWERS TO PROVIDE PARKING SPACES

 

The powers of local councils to provide parking spaces are derived mainly from the Road Traffic Regulation Act 1984. Additionally, councils may have implied powers to provide spaces pursuant to case law and they may also use their powers under statute to create byelaws. It is convenient to discuss those powers in reverse order.

 

 

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[19] UNAUTHORISED PARKING ON PRIVATE LAND

 

There are a number of bodies with statutory powers to immobilise or remove vehicles on land that is not a public place. These include principal authorities in car parks they provide or manage, the police when enforcing road traffic contraventions or otherwise removing vehicles that are illegally, obstructively or dangerously parked; the police and principal authorities when exercising their powers to remove abandoned vehicles from private land. The Driver and Vehicle Licensing Authority (‘DVLA’) has similar powers in respect of vehicles that have no road tax. The Department for Transport’s Vehicle and Operator Services Agency has powers in respect of vehicles that are not roadworthy. The police and principal authorities have powers to remove vehicles forming part of an unauthorised traveller encampment. In addition, bailiffs have a mix of statutory and common law powers to immobilise and tow away vehicles for the purposes of enforcing debts (including those arising out of unpaid taxes and court fines).

 

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[20] MARKETS AND OTHER EVENTS

 

Local Authorities (including parish and community councils, but not parish or community meetings) are empowered to establish or acquire markets in their area pursuant to section. 50 of the Food Act 1984 and local authorities exercising the power are known as “market authorities”. The general power to provide a market is, however, subject to one important exception set out in s. 50(2) of the Act:

“A market shall not be established in pursuance of this s. so as to interfere with any rights, powers or privileges enjoyed within the authority’s area in respect of a market by any person, without that person’s consent.”

 

 

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[23] HEALTH AND SAFETY

 

The Health and Safety Executive (HSE) advises that over 200 people lose their lives at work in the UK each year. Additionally, about 150,000 non-fatal injuries are reported and an estimated 2 million suffer from ill health caused or made worse by their work. Local councils are made up of over 80,000 councillors and employ over 25,000 staff and have a legal responsibility to ensure the safety of its employees and others.

 

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[24] THE HUMAN RIGHTS ACT 1998

 

The Human Rights Act 1988 (the 1988 Act) (which came into effect in October 2000) incorporates the European Convention on Human Rights into UK law (England, Wales, Scotland and Northern Ireland). Prior to the Act, any party who believed that his convention rights had been breached was required to take his case to the European Court of Human Rights (ECHR) in Strasbourg. The aim of the Act is to incorporate all the provisions of the Convention into UK law so that individuals can benefit from their rights in the UK courts; without having to go to Strasbourg.

 

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[25] SEX DISCRIMINATION

 

As of January 2013 this Legal Topic Note no longer contains current legislation and has therefore been replaced by Legal Topic Note 78


 

[26] RACE DISCRIMINATION

 

As of January 2013 this Legal Topic Note no longer contains current legislation and has therefore been replaced by Legal Topic 78


 

[27] DISABILITY DISCRIMINATION

 

As of January 2013 this Legal Topic Note no longer contains current legislation and has therefore been replaced by Legal Topic Note 78


 

[28] BASIC CHARITY LAW

 

Principal roles played by local councils in the trusteeship of charities

 

1. Local Councils can act as:

  • Sole trustee: the council as a corporate body both holds the property and oversees its application as charity trustee (see paragraph 5 below);
  • Joint trustee together with individual trustees;
  • Custodian trustee: the council holds the property but takes no decisions on its use (see paragraph 10 below).

 

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[29] STRAYING ANIMALS

 

The ‘keeper’ of an animal has a general duty to ensure that the animal does not cause injury or damage. Where the animal is of a dangerous species (i.e. a non-domesticated animal which usually causes damage when fully grown, such as a lion) the keeper will be liable for injury or damage caused unless the injury etc. was the fault of the sufferer (Animals Act 1971, sections 2(1) and 5(1)).

 

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[30] DEFAMATION

 

A defamatory statement is one “which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business” (Halsbury’s Laws of England).

 

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[31] SECTION 137 OF THE LOCAL GOVERNMENT ACT 1972

 

Section 137 of the Local Government Act 1972 enables local councils to spend a limited amount of money for purposes for which they have no other specific statutory expenditure. It is however, limited in a number of ways. All community councils in Wales have the Power of Well-Being (see paragraph 21 below) but expenditure incurred in the exercise of that power is subject to the financial limit in section 137 (see paragraph 14 below). Although not possible with s.137, expenditure incurred by a community council exercising the power of well-being can be used to benefit an individual. Also section 137 cannot be used by a parish council in England that is eligible to exercise the General Power of Competence except to donate money to certain charities and appeals (Section 137(3)).


 

[33] COUNCILLORS’ ALLOWANCES

 

The Local Authorities (Members’ Allowances) (England) Regulations 2003 (SI.2003/1021) came into force on 1st May 2003. The regulations apply to local authorities in England only and substantially change the system that previously existed.

 

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[36] UNFAIR CONTRACT TERMS ACT 1977

 

The aim of the 1977 Act was to regulate two contractual principles which had developed prior to the introduction of the Act. The two principles enabled:

  • contracts to contain clauses which exempted one party from any liability to the other even where the other had been killed or injured by the fault of the first party; and
  • notices to be used to disclaim liability for actions or situations not arising from contract.

 

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[37] FREEDOM OF INFORMATION

 

The Freedom of Information Act 2000 (‘the Act’) was passed on 30 November 2000. The Act is enforced by the Information Commissioner (see below at paragraph 41 for address) who also has responsibility for data protection issues. NALC has issued several legal briefings (e.g. relating to fees and certain exemptions) with respect to the application of the Act to local councils and these should also be referred to.

 

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[39] COPYRIGHT

 

Please find attached LTN39 - Copyright

 

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[40] LOCAL COUNCILS DOCUMENTS AND RECORDS

 

Information about local council documentation is contained in Chapter 11 of ‘Local Council Administration’ by Charles Arnold Baker (8th Edition). This Note is intended to update and supplement that information, with particular reference to the length of time documents should be retained by local councils.

 

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[41] THE RESPONSIBILITIES OF COUNCILS AS LANDOWNERS

 

The law imposes a series of duties on all landowners by reason of their ownership and occupation of land. Those duties are duties of care owed towards other people. The nature of the duties imposed upon councils is no different from that imposed upon private landowners. Councils are however responsible public bodies and as such the level of duty is greater than that placed upon a private citizen.

 

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[42] OCCUPIERS’ LIABILITY

 

Most local councils own buildings and land and, accordingly, have legal obligations to those who visit them. This Topic Note covers the responsibilities of local council land owners pursuant to the Occupiers’ Liability Acts of 1957 and 1984.

 

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[43] PRIVATE ACCESS TO COUNCIL LAND

 

Many councils find that properties they own abut the gardens of private residences. Sometimes the owners of these residences wish to have direct access to council land which they facilitate by, for example, putting a gate in their fence. The situation is particularly common when the council land in question is a recreation ground.

 

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[44] TRESPASS TO LAND

 

The Criminal Justice and Public Order Act 1994 (CJPOA) made a number of changes to the law relating to trespass. Amendments to the 1994 Act made by the Anti Social Behaviour Act 2003 are set out in LTN 53 (Protection of Common Land).

 

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[45] DISPOSAL AND APPROPRIATION OF LAND BY LOCAL COUNCILS

 

General Rules on the Appropriation of Land

 

1 Section 126(1) of the Local Government Act 1972 provides that any land belonging to a local council which is not required for the purpose for which it was acquired, or has since been appropriated, may be appropriated for any other purpose for which the council is authorised by statute to acquire land by agreement.

 

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[46] REGISTERED LAND

 

What is the Land Register?

The Land Register is an official record of who owns land in the United Kingdom. The Register is administered by the Land Registry which has regional offices throughout the UK.

 

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[48] THE DIFFERENCE BETWEEN LEASES AND LICENCES

 

Leases and Licences can be quite similar in many respects. Both are types of contract which can be used to grant someone rights in or over land but there are important differences between them. All types of contract contain provisions which confer benefits on one or both parties and the benefits conferred by a given contract on the parties to it is dependant on two things:

 

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[49] BUSINESS TENANCIES

 

The letting of ‘business premises’ is controlled by the Landlord and Tenant Act 1954 (“the Act”) as amended by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 SI. 3096 and the Landlord and Tenant Act 1954 Part 2 (Notices) Regulations 2004 SI. 1005. The Order and Regulations make substantial alterations to the former law.

 

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[50] THE AGRICULTURAL TENANCIES ACT 1995

 

The Agricultural Tenancies Act 1995 (the 1995 Act) came into force on 1st September 1995 and introduces new provisions for the de-regulation of agricultural tenancies. The aim of the 1995 Act is to introduce greater flexibility, so that the relationship between landlords and tenants is primarily governed by the agreement between them rather than the legislation relating to agricultural holdings.

 

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[51] THE AGRICULTURAL HOLDINGS ACT 1986

 

This Legal Topic Note relates to tenancies pursuant to the Agricultural Holdings Act 1986 (the 1986 Act). Most new agricultural tenancies will be subject to the Agricultural Tenancies Act 1995 which is covered in LTN 50. There are limited circumstances in which tenancies can now be granted pursuant to the 1986 Act (usually where a 1986 Act tenancy already exists) and councils should contact NALC for further details. Although not appropriate for tenancies which are wholly new, this Note will still be of relevance to those who have existing tenancies pursuant to the 1986 Act.

 

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[52] TEMPORARY USE OF ALLOTMENT LAND

 

Owing to a fall in demand, a local council may have allotment land, which cannot be fully let. The council may not wish to dispose of the unlet land permanently, in case demand rises again and acquisition of more land is difficult or expensive. In these circumstances, the council may wish to find a temporary alternative use, which does not prevent it from resuming possession when the land is again required for allotment purposes. There are two methods whereby the land may be let for agricultural purposes but without giving the tenant or occupant security of tenure under the Agricultural Tenancies Act 1995. These are a grazing or mowing licence and the temporary use of land as an agricultural holding.

 

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[53] PROTECTION OF COMMON LAND

 

It is a popular misconception that common land is either ownerless or belongs to everyone. In fact, most common land is privately owned (though local councils own a number of commons).

 

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[54] PROTECTION OF OWNERLESS COMMON LAND

 

Local authorities (including local councils) were given the power to protect such commons pursuant to section 9 of the Commons Registration Act 1965. Section 9 has now been repealed and has been replaced by section 45 of the Commons Act 2006 (which came into force on the 1st October 2006 in England and 6 September 2007 in Wales).

 

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[55] CLAIMING OWNERLESS LAND

 

The law relating to occupying and ultimately claiming ownership of land without an apparent owner (i.e. claiming “squatter’s rights”) was radically altered in 2003 with the introduction of the Land Registration Act 2002.

 

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[56] THE PROVISION OF PLAY AND SPORTS EQUIPMENT ON VILLAGE GREENS

 

Many local councils own or control village greens or common land, or both, for the purposes of recreation. NALC is often asked whether or not councils can lawfully provide facilities on such land.

 

 

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[57] EASEMENTS OVER COMMON LAND AND VILLAGE GREENS

 

This topic is complex. The difficulties stem from the fact that the courts have been required to grapple with legislation which was drafted before use of the car became the norm and have been required to reconcile conflicting common law principles and statutory principles with the needs of the modern (car-using) public. The only way to make sense of the position is to understand a little of the history.

 

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[61] THE STATUS OF PARISH, TOWN AND COMMUNITY COUNCILS AT PUBLIC INQUIRIES

 

Some time ago, the Association received a complaint in respect of a report that had been prepared by an Inspector after a Public Inquiry. In the formal list of appearances the Parish Council’s representative (who was it’s chairman) was listed under ‘Other Persons’ and the Council’s case was dealt with in the same paragraph as that of individuals who took part in the Inquiry. The Council was not separately identified, as were the two principle local authorities. Since Parish Councils are local authorities with a defined status in planning law and at Inquiries, the Association sought confirmation from the appropriate Department at the time on the instructions given to Inspectors as to the status to be accorded to Parish Councils at Inquiries.

 

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[62] PLANNING CONTROL OVER AGRICULTURAL LAND AND BUILDINGS

 

The use of land, and of buildings occupied therewith, for agriculture is not development and does not therefore need specific planning permission (section 55(2)(e) of the Town and Country Planning Act 1990). ‘Agriculture’ includes the use of land for allotments (decided in Crowborough Parish Council v Secretary of State for the Environment and Wealden DC <1980> 43 P & CR 229).

 

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[63] PLANNING AND BUILDING CONTROL ENFORCEMENT

 

The purpose of this Note is to provide local councils with an overview of the enforcement procedures in respect of planning and building control matters.

 

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[64] TOMBSTONES AND MEMORIALS

 

This note uses the term ‘burial ground’ to include all sites in which interment is being or has been, carried out whether consecrated by any particular denomination or not. The word ‘memorial’ is used to include tombstones, walled graves, monuments and all other memorials whether placed on a grave or elsewhere in a burial ground.

 

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[65] CLOSED CHURCHYARDS AND DISUSED BURIAL GROUNDS

 

This Note deals with the law relating to closed churchyards and disused burial grounds. A “closed churchyard” is a churchyard belonging (but not necessarily physically attached) to a parish or cathedral church of the Church of England which has been formally closed by an Order in Council made by the Privy Council. A “disused burial ground” is a place used, or intended to be used, for burial purposes by any other person or body and which is no longer used for such purposes (and may include a closed churchyard). “Consecrated” means consecrated in accordance with the rites of the Church of England.

 

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[66] NUISANCE (PUBLIC AND STATUTORY)

 

This Note deals with statutory and public nuisance. A separate Legal Topic Note, LTN 67 – Nuisance (Private), considers private nuisance.

 

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[67] NUISANCE (PRIVATE)

 

This Legal Topic Note deals with the subject of private nuisance. A separate Legal Topic Note (LTN 66 – Nuisance Public and Statutory) considers public and statutory nuisances.

 

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[68] NEGLIGENCE

 

Negligence can be defined as failure to act with the prudence that a reasonable person would exercise under the same circumstances.

 

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[69] ANTI SOCIAL BEHAVIOUR ORDERS (ASBOS) AND HARASSMENT

 

Anti-Social Behaviour Orders (ASBOs) are made pursuant to the Crime and Disorder Act 1998 as amended by the Police Reform Act 2002 and the Anti Social Behaviour Act 2003. Local councils do not currently have the power to apply for ASBOs. However NALC appreciates that anti-social behaviour is an important issue for local councils and this Note is intended to give them an overview of the provisions so that appropriate representations can be made to those who do have the power to apply for them.

 

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[70] LTN 70 - THE LOCAL ENVIRONMENT

 

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[71] NAMING AND NUMBERING OF STREETS

 

There are two separate, and mutually exclusive, sets of statutory provisions which govern the naming and numbering of streets in England and Wales (outside Greater London). The provisions are contained in

 

a) Sections 64 and 65 of the Towns Improvement Clauses Act 1847, and s.21 of the Public Health Acts Amendment Act 1907, and

b) S.17, s.18 and s.19 of the Public Health Act 1925.

 

 

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[72] HIGHWAYS

 

NALC receives a number of enquiries from local councils in respect of highways and road safety. Local councils have limited powers in respect of highways. However, many councils have found it helpful to know what the powers of highway authorities are, so that they may make suitable representations to the relevant bodies in appropriate cases.

 

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[73] COMMUNITY GOVERNANCE REVIEWS

 

This note concentrates on how community governance reviews may lead to the creation of new parish councils (and abolition of parish councils).

 

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[74] ALTERNATIVE NAMES AND STYLES FOR PARISH COUNCILS

 

Pursuant to the Local Government Act 1972 (“the 1972 Act“), parishes with a separate council, are known as parish councils. Pursuant to s. 245 of the 1972 Act, any parish council of a parish which is not grouped with any other parish may resolve that the parish shall have the status of a town. If such resolution is passed, that council of the parish bears the name of the council of the town, the chairman and vice-chairman of the council shall be entitled to the style of town mayor and deputy town mayor, and the parish meeting shall have the style of town meeting.

 

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[75] LEASE NEGOTIATIONS

 

Leases are complex legal contracts specific to the ownership, occupation and rights in and over land or premises on it. The purpose of this Note is to help local councils identify that there is a due process to follow before legally committing to leases, that main terms should not be agreed and leases should not be executed before professional advice is obtained.

 

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[76] ENERGY PERFORMANCE REQUIREMENTS

 

Display Energy certificates (DECs) are intended to raise public awareness by requiring public authorities (including parish councils in England and community councils in Wales) to display information about their buildings' energy use. They were introduced by the Energy Performance of Buildings (certificates and inspections) (England and Wales) regulations 2007. In January 2013, the 2007 regulations were replaced by the Energy Performance of Buildings (England and Wales) regulations 2012.

 

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[77] PUBLIC RIGHTS OF WAY

 

The purpose of this Note is to give an overview of the law relating to rights of way in England and Wales. The Note describes what rights of way are, how they are created and issues that are particular to local councils. Rights of way over common land and village greens are the subject of a separate Legal Topic Note (LTN 57- Easements over Common Land and Village Greens).

 

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[81] PRE-DETERMINATION

 

Decisions made by local authorities and other public bodies which are based on bias or predetermination have always be open to legal challenge by judicial review. There is useful caselaw which gives guidance on how decision-makers such as councillors should avoid bias and predetermination.

 

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