DCLG is half way through a consultation on the proposed Local Authorities (Functions and Responsibilities) (England) Regulations 2015. The regulations, if made, would not be novel, but would consolidate the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 and no fewer than 15 amending regulations. The consultation closes on 6 March and one suspects that the intention is to make the regulations before the end of March in order to clock up the revocation of a further 16 statutory instruments before the election.

The regulations are a consequence of the legitimisation of executive forms of local government introduced by Part II of the Local Government Act 2000, meaning that, where authorities have an executive in place, many decisions must be made by an executive mayor or a small cabinet of executive councillors. The effect of s.13 of the 2000 Act is that decision making is vested in the executive unless regulations provide otherwise. Broadly speaking, the regulations tend to provide that regulatory functions are not capable of being discharged by the executive: e.g. licensing and planning development control. However, any function may nevertheless be delegated to officers, either under s.101(1)(a) of the Local Government Act 1972, or under s.14, 15 or 16 of the 2000 Act.

As an example, the existing regulations (para.3 of part I of Sch.1 to the 2000 Regulations) require that the ‘power to divert footpaths and bridleways’ under s.119 HA 1980 is one which cannot be exercised by an executive member, but must be done by committee or by council (or by an officer, if an appropriate delegation is in place). This is why highway authorities have rights of way, regulatory, or similar committees to discharge these functions, even if they operate executive arrangements, and of course, why every planning authority still has a planning committee.

The consultation is of considerable relevance to highway authorities, because of the continuing requirement that public path orders are not made by the authority though executive arrangements. Note, however, that the relevant entries in Part I of Sch.1 to the draft regulations refer to exercising the power to ‘make’ an order, which suggests that confirmation of an unopposed order could be done by the executive.

There are also various other specified commons, CROW access, highway and rights of way functions which, generally as before, are excluded from executive arrangements, including:

  • power to enter into agreements to form means of access under s.35 CROW 2000
  • power to create means of access under s.37 CROW 2000
  • registration functions under s.13 Commons Registration Act 1965 (with exceptions)
  • registration functions under Part 1 Commons Act 2006 (with exceptions)
  • power to apply for enforcement order under s.41 Commons Act 2006
  • power to protect unclaimed common land under s.45 Commons Act 2006
  • power to authorise gates and stiles on public paths s.147 Highways Act 1980

There is also a rather bizarre removal of reference in the regulations to determination of applications for public path orders under s.118ZA of the Highways Act 1980, because that provision is not yet in force, yet with Royal Assent to the Deregulation Bill imminent, it may well be commenced in the next few months (the consultation does not even mention the parallel s.119ZA). From which one might guess that there has been no thorough prior consultation within Government, and it’s all a desperate rush to complete the job before Parliament is dissolved and no new regulations may be laid before Parliament.