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The Topside Scheme.
Are we headed for a place in the history books

"I am just glad that this whole unnecessary business is over," said a spokesman for WODC in a press release - talking about the District Auditor's
enquiry into the refurbishment of the Market Square in Chippy. A bit strong
perhaps - coming from an officer of the District Council commenting on a perfectly proper process undertaken by some respected electors of Chipping Norton. Unfortunately the press release had to be quickly withdrawn because the business isn't quite over. There is to be an appeal in the High Court.

Six years ago the West Oxfordshire District Council proposed a scheme -
costing nearly a quarter of a million pounds - to "do-up" the Market Square.
This project - known as the 'Topside' scheme created quite a furore. At a
Town Hall meeting opposition from local traders was intense. Many people
remember that stormy debate. Town Centre retailers in particular demanded
that WODC should reconsider. The meeting objected to lost car parking and
thought the new traffic flow arrangements would not work well. They feared
loss of business. But - despite an overwhelming 'straw poll' vote against
the scheme - the District Council pushed ahead. A number of town residents
were outraged by the lack of attention given to the objections.

On the other hand, a lot of people were strongly in favour of the scheme. It is not clear whether a satisfactory way was found to establish where a true balance of opinion lay.  But this possible "democratic" deficit in the way the plan was progressed was only one aspect of the whole scheme which upset a group of diehard objectors. There were, in addition, real doubts about the
legality of the way the scheme was being financed. This was a quite separate issue  from the possible merits of the scheme. When the subject had
come up in previous years , Maurice Knapmann - the enormously experienced
Chippy Town Clerk who had  been Chief Executive of WODC - had  warned that there was no way the District could carry out such a scheme within Local Government legislation.

Local Government Acts in the UK make it pretty clear just what kind of
expenditure each type of authority is permitted to make. It's obvious that
this is a very fundamental aspect of good governance. Things could get
chaotic if all tiers of government were allowed to fund whatever they liked.
For example, if Chipping Norton Town Council thought it might be a good idea to have a tunnel to carry the A44 under the town they are fortunately not allowed to do anything about putting their idea into practice. In principle, works on the Public Highway have to be undertaken and funded by the experts - the County Highways Authority. If the Highways Authority have already come up with a scheme then a local council is permitted to make a contribution towards the total cost for something of specific benefit to the local community. So, for example, if the District Council said - "Hey. This
tunnel which the Highways Authority is planning would look much better with Portland Stone round the entrance. We'll pay for that" - then that kind of contribution is OK.  But even this  is financially limited in the statute by a strict formula.

The "Topside" scheme was initiated by West Oxfordshire District Council - not by the county. No such scheme had ever appeared in the Highways Authority's forward plans or appeared in any minutes of meetings - previous to the one where the District were appointed as "agents" to do the work. The District paid 200,000 of the cost. It is claimed that the County spent 20,000. In this situation you have to ask - who was contributing to whose scheme If this payment by the District Council was not a "contribution" in the meaning of the act then the whole scheme was illegal.

In a purely practical sense what the funding arrangements meant was that the enormous costs of the whole "unwanted" scheme were being loaded on to a narrow West Oxfordshire tax base which was only a fifth the size of the
whole county. Chipping Norton residents were paying - through their rates -
five times as much for this cosmetic scheme as they should have been.

So a group of local residents - as they were perfectly entitled to do -
challenged the validity of these financial arrangements. As a result. the
accounts of WODC for the years 1999-2000 and 2000-2001 have been kept open and under the scrutiny of the District Auditor. It is important to stress
that there are filters in place which ensure that District Auditors don't
waste their time on any old objection. There has to be a serious case to

The District Auditor has now finally published a report which makes the
judgement that the 200,000 of WODC ratepayers' money spent on the Topside scheme was a legitimate "contribution" towards the County's costs. However, the objectors - having sought expert counsel's opinion- feel that this judgement involves an important point of law which should be settled by a High Court Judge. So they have challenged the District Auditor's decision before the High Court in London. Again it is important to stress that frivolous actions simply do not make it through the filter systems of the High Court.

It is important not to prejudge what might happen at the High Court, but if
the judge hearing the case on points of law should eventually decide that
the District Auditor is mistaken then the way will be open for the money to
be recovered.

Many readers will have heard of the case a few years ago where Dame Shirley Porter, of Westminster Council in London, was charged over 30 million by the District Auditor because of the 'gerrymandering' case against her. This case was in the days when a District Auditor could surcharge individuals where it was judged that such persons had acted contrary to public interest.

The law was changed around the beginning of this new millennium, with the
result that District Auditors no longer have the power to make such a
surcharge on cases which relate to occurrences of malpractice after the
change in the law. However, there are a few cases around the country
where District Auditors are still dealing with matters which pre-date the
law change. One of those cases is the "Topside" scheme.

Since the "Topside" case pre-dates the change, it is certainly still within the law for the officers who have been named in the case to be surcharged. In effect, to make them contribute - out of their own pockets - a substantial sum towards the costs of the "Topside" scheme if these are found after all to have been illegally incurred. If the judge were to find against the District Auditor - West Oxfordshire could yet find a place in the history books as one of the last local authorities to have its officers surcharged.