Parish Council Powers: Discretionary Functions and What Your Council Can Actually Do

The question clerks and new councillors ask most often is: can the council do this? The answer depends not on what the council wants to do or what the community expects, but on whether there is a legal power that authorises it. Councils can only act within the powers given to them by statute — acting beyond those powers is ultra vires, meaning the action is void and the council may be liable for any resulting expenditure.

This guide explains the principal discretionary powers available to parish councils and how to apply them.

Why the "vires" question matters

Unlike a private individual, who can do anything not prohibited by law, a parish council can only do what law positively permits. The doctrine of ultra vires means that any action outside the council's legal powers is not merely undesirable — it is void. Resolutions that are ultra vires can be challenged in court, expenditure can be declared unlawful, and in serious cases councillors who knowingly approved unlawful expenditure may face personal liability for the loss.

The first question before any new initiative should be: what power authorises this?

Section 137: the catch-all spending power

For the majority of discretionary spending decisions, the answer is section 137 of the Local Government Act 1972. The section allows councils to incur expenditure where they consider "the direct benefit accruing to their area or any part of it or all or some of its inhabitants will be commensurate with the expenditure to be incurred."

The key elements:

No specific power needed. Section 137 is the gap-filler — it applies when there is no specific statutory power for the activity.
Commensurate benefit test. The council must be satisfied that the benefit to the area is proportionate to the cost. Large grants to organisations with minimal local impact fail this test.
Annual spending limit. Expenditure under section 137 is capped at a per-head figure (set by statutory instrument, adjustable annually) multiplied by the relevant population of the council's area.
No duplicate use. Section 137 cannot be used for things the council already has a specific power (or duty) to do — it fills the space where no other power exists.

Section 137 is the most frequently used discretionary power for community grants, local events, and contributions to shared facilities. See the parish council grants guide for the detailed mechanics, recording requirements, and common errors.

The general power of competence

For eligible councils, the general power of competence under section 1 of the Localism Act 2011 goes further. Section 1(1) provides that "a local authority has power to do anything that individuals generally may do." There is no commensurate-benefit test, no per-head spending cap, and no requirement to demonstrate a specific statutory power.

The practical difference from section 137:

Section 137 requires the activity to benefit the area and has a spending cap
The general power of competence has neither restriction — councils can do things for reasons that don't need to be justified as direct benefit, and can spend without the annual cap

Not every parish council can use this power. Eligibility conditions are set by the Parish Councils (General Power of Competence) (Prescribed Conditions) Order 2012: at least two-thirds of the council seats must be filled by elected (not co-opted) councillors, and the clerk must hold the CiLCA qualification or its equivalent.

Councils that achieve GPC status can do things section 137 cannot cover — commercial activity, investment in assets, entering into wider contracts. See the general power of competence guide for eligibility assessment and how the power is exercised in practice.

Subsidiary powers under section 111

Alongside section 137, section 111 of the Local Government Act 1972 provides that a local authority has power to do anything "which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

Section 111 is narrower than section 137 — it is an ancillary power, meaning it only operates alongside an existing function. A council that has a function of maintaining a recreation ground (under the specific power in the Open Spaces Act 1906 or similar) can use section 111 to do things reasonably incidental to that — buying equipment, engaging a grounds maintenance contractor, installing a notice board. Section 111 does not create new standalone activities.

In practice, clerks use section 111 without thinking about it: it is the power that justifies the council buying a photocopier, engaging a solicitor, or renting office space — all incidental to the discharge of the council's statutory functions.

Specific discretionary powers

Beyond the general spending powers, a number of specific statutes give parish councils optional powers in defined areas:

Open spaces and recreation

Open Spaces Act 1906 — councils may acquire, lay out, and maintain open spaces. This is one of the oldest parish council powers and remains the basis for maintaining village greens, parks, and woodland.
Local Government (Miscellaneous Provisions) Act 1976, s.19 — councils classified as local authorities may provide recreational facilities, including sports facilities, swimming facilities, and playing fields, inside or outside their area.

Transport and infrastructure

Parish Councils Act 1957 — councils may provide bus shelters and waiting facilities at public transport stops. They may also contribute to shelters provided by the highway authority.
Highways Act 1980, s.50 — councils may undertake the maintenance of privately maintainable footpaths and bridleways within their area, even where another person is under a duty to maintain them.

Community facilities

Local Government Act 1972, s.137 and various — councils may support village halls, community centres, local charities, and community groups through grants and contributions.

Neighbourhood planning

Under Part 6 of the Localism Act 2011, parish councils can prepare neighbourhood plans. Once approved by referendum and adopted by the local planning authority, a neighbourhood plan carries statutory weight. This is one of the most significant planning powers available at parish level. See the neighbourhood plan guide for the process and what it involves.

Acting outside your powers: the risk

When a council acts without legal authority, the consequences can be serious:

Void decisions. A resolution to spend money without a legal power authorising it is void — the council cannot enforce contracts entered under it.
Unlawful expenditure. The external auditor can issue an adverse opinion on accounts that include ultra vires spending. This is a significant governance failure flagged in the AGAR.
Personal liability. In extreme cases, councillors who knowingly approved unlawful expenditure can be made personally liable for the loss — though this is rare in practice for minor oversteps.
Challenge by residents. Any elector can challenge unlawful action through judicial review or by raising concerns with the external auditor during the public rights period.

What to do when you are unsure

If a proposed activity's legal basis is unclear:

Check for a specific statutory power first — Acts from 1957, 1972, 1976, 2011 cover many common activities.
If no specific power exists, consider whether section 137 applies (is there commensurate benefit to the area?).
If the council is GPC-eligible, consider whether the general power of competence would be cleaner.
If still uncertain, consult the county association or a specialist local government solicitor before committing.

The parish council duties guide sets out the mandatory side of this picture — what the council must do, as distinct from what it may do.

Sources

Local Government Act 1972, section 137 — expenditure for other purposes
Local Government Act 1972, section 111 — subsidiary powers
Localism Act 2011, section 1 — general power of competence
Parish Councils (GPC) (Prescribed Conditions) Order 2012
General power of competence guide — eligibility, scope, and how to exercise GPC
Parish council grants guide — section 137 spending rules and recording
Parish council duties guide — mandatory functions vs discretionary powers

This guide covers parish council powers in England. Community councils in Wales operate under equivalent but distinct legislation. ParishProof is a compliance tool for parish clerks, not legal advice — consult your county association or a qualified solicitor for advice on specific situations.