Kate Webster, director of Leeds-based practice Walker Morris, said councils are unable to trade on statutory services but can only charge fees to cover costs or enhance the service, as she gave a legal overview of the issues around using parks as a money-raising resource at the Association for Public Service Excellence (APSE) Parks & Open Spaces Seminar at London's City Hall on 23 September.
She outlined a series of legal pitfalls local authorities should be aware of when considering revenue-raising from the parks and green spaces under their control. She advised starting with a rigorous review to ascertain what type of trading entity a project would best suit and getting "a chunk of legal advice" on a number of specialist practice areas. If you have to fail, she said, "fail early and fail small".
To trade, authorities must set up a separate company or partnership with another organisation. When dealing with EU procurement "you've got to get used to a new way of thinking and be careful you don't get on the wrong side of it". Another issue is competition law. "Because most authorities haven't operated in this way before, they don't grasp the nuances of competition law," she said.
Webster also advised a full and thorough review of the provenance of green spaces, which were often bequeathed under trust or have other centuries-old legal conditions. Authorities may also need to spend time engaging with the Charity Commission to get their business plan approved. If a park has charitable status there are issues with keeping any income from it, even though a council has been paying for its maintenance from its own budget for years.
"I find parks absolutely fascinating because they are just really tricky," said Webster. "They look simple but you dig underneath them for a legal point of view and it's a Pandora's box."
So far 272,014 people have signed an online petition by campaign group 38 Degrees calling on the Government "to make protecting parks a legal requirement to make sure they're properly looked after and kept free for everyone to use". The petition urges the Commons Communities & Local Government Committee, currently running an inquiry into parks, to "make the strongest recommendations" to make parks a statutory duty.
A recent survey by anti-privatisation pressure group We Own It found that 75 per cent of respondents believe parks should be a statutory duty for local authorities. The sample size was small (1,013 adults) but weighted to be as representative as possible of the population.