The below email has been sent to Councillor Lyons.
Amongst others who have received it are:
- The Rt Hon Michael Gove MP – Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations
- Jonathan Lord – Member of Parliament for Woking
- Jim Taylor – appointed by the Secretary of State for Levelling Up, Housing and Communities and Minister for Intergovernmental Relations as Lead Commissioner at Woking Borough Council
- Julie Fisher – Chief Executive, Woking Borough Council
- Councillor Ann-Marie Barker – Leader of Woking Borough Council
Dear Councillor Lyons,
I refer to your below Statement.
Brendan Arnold, Interim Director of Finance and Section 151 Officer released a Letter to all Councillors on 19th July 2023 under the heading:
‘Use of Community Infrastructure Levy for schemes at Ward Level’
Firstly, the title was inaccurate and concerning as there are differences between ‘Ward’ and ‘Neighbourhood Forum Plan Area’ as regards the receipt and subsequent expenditure of that part of CIL funds that are held in trust by the Council on behalf of the community. However, what is not in dispute is that such funds do not belong to WBC and were not and are not theirs to spend. This Letter to Councillors gave rise to more questions than answers.
Secondly, at a subsequent meeting of Byfleet, West Byfleet, and Pyrford Residents’ Association attended by Councillor Ann-Marie Barker, Leader of WBC, we were advised that WBC would issue a subsequent statement to Woking residents explaining in non-technical language what had happened to what I will now refer to as Neighbourhood Community Infrastructure Levy (‘NCIL’).
If your Statement is that explanation, then I fear that it fails in its objectives. We remain uncertain and uninformed as to the realities of the future.
I note that you state “Officers have advised all Councillors, irrespective of their political party, that the spending controls that have had to be introduced must apply to all financial transactions which have an impact on cash coming into and leaving the Council’s accounts…” Are these by any chance the same Officers whom the government appointed Inspectors repeatedly in their two reports described as ‘not fit for purpose’?
I have a very simple question regarding NCIL, and bear in mind that at the WBC Executive Committee meeting held on 13th July the portfolio holder Councillor Dale Roberts made the very clear statement in an answer to Councillor Graves regarding CIL (which for these purposes includes NCIL) – “there is no cash”.
And I wish to acquaint you with one quote from the Woking Joint Committee (the Woking BC/Surrey CC committee then responsible for the overall administration of CIL/NCIL) at their meeting on 23rd June 2021, Agenda Item 10 (there are several more such statements but one will suffice):
“2.2 Woking Borough Council has set up a separate account for each Ward or Neighbourhood Area to manage the CIL money”.
So the question is:
Currently around £2 million of community NCIL funds are ‘missing’. West Byfleet has the greatest portion at just over £1 million.
- Are these funds ‘available’ but “‘rozen’ because of the S.114 Notice and the deficit on the General Fund?; or
- Have these funds actually been spent, and if so on what?
If the situation is 1 above then the neighbourhood forums/wards’ share of CIL never belonged to WBC. It was held by them on behalf of the community; it is nothing to do with WBC’s now suspended investment programme and these funds must be released and reinstated without delay.
If the situation is 2 above, then as there are very clear rules as to what such funds legally may be spent on, and as there is a very clear procedure as to the approval for such expenditure which requires inter alia the agreement of the community, then there can be no doubt that these funds have been misappropriated. If this is the case, then is it now time for the police to be informed?
You conclude your Statement as follows:
“I am equally frustrated by the impact of the Council’s spending controls on the delivery of services and support to communities, but I accept this is required and I will continue to represent and advocate for communities to ensure that CIL schemes can progress at the earliest opportunity.”
Let me assure you that your level of frustration is insignificant when compared to the anger of the community, and in present circumstances counts for very little. We remain appalled at this degree of incompetence and duplicity. Given the financial realities for WBC, we see few if any reasons to be convinced that this a temporary position as you describe it.
Regards
Stewart Dick
Chair
Byfleet, West Byfleet, and Pyrford Residents’ Association.
Very well said – thank you – the questions of financial competence and/or financial probity within WBC and among councillors need to be kept front and centre. After the financial performance of councillors and officers at WBC over the last five to ten years confidence in them must be close to zero. Having examined the financial case presented to councillors by officers recommending that the Victoria Square development should be approved I would not, in my father’s old-fashioned phrase, trust them to run a whelk stall.
Steve thank you. The very worst thing that anyone currently can do is to accept what we are being told by Council Officials and certain.Councillors. £2 million of community funds have been misapplied and there is justified anger. We must protest in the strongest possible way.
Stewart
Whilst I share much of Stewart’s concerns and anger at the apparent incompetence, or worse, of earlier administrations. I believe the fundamental premise in Stewart’s letter of the ownership of NCIL funds is flawed.
The Charging andCollecting Authority, I.e. WBC as the Planning Authority, only must pass the 25% of total CIL to Parish Councils, of which there are none in Woking. Otherwise the Local Authority retains the funds and must work with the local community to utilise the 25% funds to fulfil the objectives of the Local Plan.
There also seems to be a confusion between the use of “account” with “bank account” although we have unresolved questions on these accounts.
I don’t want to be seen as an apologist for the Planning Portfolio holder or the interim Director of Finance but their messages seem quite clear that the statutory NCIL funds still exist as an obligation of the Council and intend to be utilised in full but operationally cash will not be available until the Council Plan is agreed, indicated as early next year. WBNF Committee have issued the following statement
https://wbnf.org/files/2023/08/WBNF-NCIL-Brief-08082023-V1.pdf
The following extract of https://www.gov.uk/guidance/community-infrastructure-levy provides the detail of NCIL regulations:
“
Where there is no parish or town council, who receives the neighbourhood portion?
Communities without a parish or town council can still benefit from the neighbourhood portion. If there is no parish or town council, the charging authority will retain the levy receipts but should engage with the communities where development has taken place and agree with them how best to spend the neighbourhood funding. Charging authorities should set out clearly and transparently their approach to engaging with neighbourhoods using their regular communication tools for example, website, newsletters, etc. The use of neighbourhood funds should therefore match priorities expressed by local communities, including priorities set out formally in neighbourhood plans.
The law does not prescribe a specific process for agreeing how the neighbourhood portion should be spent. Charging authorities should use existing community consultation and engagement processes. This should include working with any designated neighbourhood forums preparing neighbourhood plans that exist in the area, theme specific neighbourhood groups, local businesses (particularly those working on business led neighbourhood plans) and using networks that ward councillors use. Crucially this consultation should be at the neighbourhood level. It should be proportionate to the level of levy receipts and the scale of the proposed development to which the neighbourhood funding relates.
Where the charging authority retains the neighbourhood funding, they can use those funds on the wider range of spending that are open to local councils (see ‘Can the levy be used to deliver Suitable Alternative Natural Greenspace?’, and regulation 59C). In deciding what to spend the neighbourhood portion on, the charging authority and communities should consider such issues as the phasing of development, the costs of different projects (for example, a new road, a new school), the prioritisation, delivery and phasing of projects, the amount of the levy that is expected to be retained in this way and the importance of certain projects for delivering development that the area needs. Where a neighbourhood plan has been made, the charging authority and communities should consider how the neighbourhood portion can be used to deliver the infrastructure identified in the neighbourhood plan as required to address the demands of development. They should also have regard to the infrastructure needs of the wider area.
The charging authority and communities may also wish to consider appropriate linkages to the growth plans for the area and how neighbourhood levy spending might support these objectives.
Paragraph: 146 Reference ID: 25-146-20190901
Revision date: 01 09 2019”
Re the comment from Keith Creswell I do not intend to waste time with a forensic response where I disagree He knows my view just as I know his.
As regards NCIL, WBC has a clear procedure as to the process for approving expenditure and the involvement of the Forum which they have ignored.
Let us be very clear (as stated at the Overview and Scrutiny Committee of the 14thn August) the NCIL funds have been spent, they no longer exist and there is no cash. They are not frozen, they have gone.
The Council has ignored their own rules and it is a scandal.
WBC has to agree a balance budget for 2024/25 by 11th March 2024. If not there will be a further S.114.
Any “release” of NCIL funds will be small and thus as regards the ambitions of West Byfleet irrelevant.
As regards the statement from West Byfleet Neighbourhood Forum I had no input into its contents and have no comment.
Stewart
The Officers’s statements to the Overview and Scrutiny Committee was very clear that the NCIL funds still exist in full as a statutory obligation,
Applications can still be submitted and WBNF are encouraging our Councillors to make applications for the projects referred to in the WBNF briefing note referred to above. What was made very obvious, is that there is no cash available to WBC for other than contractual liabilities until the next cash and budgetary plan is approved, forecast for Feb 24.
What will be interesting will be the Interim Finance Offices written response to Councillor Brown’s very relevant question about whether the statutory obligation of NCIL can be subject to the cash availability deferral as it appears Government regulations say otherwise.
It is worth remembering that unlike a commercial bankruptcy, S114 Councils do not have their liabilities extinguished. I hope WBNF will continue to work with our councillors attempt to use the developers’ monies to improve West Byfleet’s infrastructure to the fullest extent provided.