Local Government Act 1972, section 138

Powers of principal councils with respect to emergencies or disasters

Part VII Miscellaneous Powers of Local Authorities

(1)Where an emergency or disaster involving destruction of or danger to life or property occurs or is imminent or there is reasonable ground for apprehending such an emergency or disaster, and a principal council are of opinion that it is likely to affect the whole or part of their area or all or some of its inhabitants, the council may—

(a)incur such expenditure as they consider necessary in taking action themselves (either alone or jointly with any other person or body and either in their area or elsewhere in or outside the United Kingdom) which is calculated to avert, alleviate or eradicate in their area or among its inhabitants the effects or potential effects of the event; and

(b)make grants or loans to other persons or bodies on conditions determined by the council in respect of any such action taken by those persons or bodies.

F730 (1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F731 (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)[F732 Nothing in this section authorisesF732] a local authority to execute—

(a)any drainage or other works in any part of a main river, [F733within the meaning of Part IV ’of the Water Resources Act 1991F733] , or of any other watercourse which is treated for the purposes of any of the provisions of that Act as part of a main river, or

(b)any works which local authorities have power to execute under [F733sections 14 to 17, 62(2) and (3) and 66 of the Land Drainage Act 1991F733] ,

but subject to those limitations, [F734the powers conferred by subsections [F735 subsection (1) aboveF735] areF734] in addition to, and not in derogation of, any power conferred on a local authority by or under any other enactment, including any enactment contained in this Act.

(4) In this section “principal council” includes the Common Council and, until 1st April 1974, the council of an existing county, county borough or county district.

[F736 (5)With the consent of the Secretary of State, a metropolitan county fire and civil defence authority and [F737 the London Fire CommissionerF737] [F738 and a mayoral fire and rescue authorityF738] may incur expenditure in co-ordinating planning by principal councils in connection with their functions under subsection (1) above.

[F739 (5A) For that purpose “mayoral fire and rescue authority” means—

(a)a mayoral combined authority (which has the same meaning as in Part 6 of the Local Democracy, Economic Development and Construction Act 2009 — see section 107A(8) of that Act), or

(b)a mayoral CCA (which has the same meaning as in Chapter 1 of Part 2 of the Levelling-up and Regeneration Act 2023 — see section 27(8) of that Act),

in its capacity as a fire and rescue authority by virtue of section 1(2)(f) or (g) of the Fire and Rescue Services Act 2004.F739]

(6) In this section “contingency planning” means the making, keeping under review and revising of plans and the carrying out of training associated with the plans. F736]

Definitions used in section 138 9

principal council

“principal council” means a council elected for a principal area;

Defined in s.270(1) · see it in the full Act
local authority

46 In this Part of this Schedule “local authority” includes a joint authority .... . . . . . and in relation to any such authority the reference in paragraph 43 above to election shall include a reference to appointment.

Defined in Sch.12 para.46 · see it in the full Act

“local authority” means a county council, . . . a district council, a London borough council or a parish council but, in relation to Wales, means a county council, county borough council or community council;

Defined in s.270(1) · see it in the full Act
Common Council

“Common Council” means the Common Council of the City;

Defined in s.270(1) · see it in the full Act
existing

“existing”, in relation to a local government or other area or a local authority or other body, except in sections 1 and 20 above, means that area or body as it existed immediately before the passing of this Act;

Defined in s.270(1) · see it in the full Act
county

“county”, without more, means, in relation to England, a metropolitan county or a non-metropolitan county , but in the expression “county council”, “council of a county”, “county councillor” and “councillor of a county” means, in relation to England, a non-metropolitan county only: ;

Defined in s.270(1) · see it in the full Act
borough

4 In this Part of this Schedule “borough” does not include a London borough or a borough which becomes a parish by virtue of section 1(9) above.

Defined in Sch.1 Pt.V · see it in the full Act
county district

4 In paragraph 1 of Schedule 3 to that Act, the definition of “county district” and, in the definition of “local authority” the words “or rural”, shall cease to have effect.

Defined in Sch.15 para.4 · see it in the full Act
the authority

(2) Any reference in Parts 4 and 5 and this Part of this Schedule to “the authority” is a reference to the principal council or, as the case may be, the committee or sub-committee in relation to whose proceedings or documents the question whether information is exempt or not falls to be determined and includes a reference —

(a) in the case of a principal council, to any committee or sub-committee of the council; and

(b) in the case of a committee, to —

(i) any constituent principal council;

(ii) any other principal council by which appointments are made to the committee or whose functions the committee discharges; and

(iii) any other committee or sub-committee of a principal council falling within sub-paragraph (i) or (ii) above; and

(c) in the case of a sub-committee, to —

(i) the committee, or any of the committees, of which it is a sub-committee; and

(ii) any principal council which falls within paragraph (b) above in relation to that committee.

Defined in Sch.12A para.22(2) · see it in the full Act

(2) Any reference in Parts 1 and 2 and this Part of this Schedule to “the authority” is a reference to the principal council or, as the case may be, the committee or sub-committee in relation to whose proceedings or documents the question whether information is exempt or not falls to be determined and includes a reference—

(a) in the case of a principal council, to any committee or sub-committee of the council; and

(b) in the case of a committee, to—

(i) any constituent principal council;

(ii) any other principal council by which appointments are made to the committee or whose functions the committee discharges; and

(iii) any other committee or sub-committee of a principal council falling within sub-paragraph (i) or (ii) above; and

(c) in the case of a sub-committee, to—

(i) the committee, or any of the committees, of which it is a sub-committee; and

(ii) any principal council which falls within paragraph (b) above in relation to that committee.

Defined in Sch.12A para.11(2) · see it in the full Act

(2E) In subsection (2D) above, “the authority” has the meaning given in paragraph 22(2) of Schedule 12A to this Act.

Defined in s.100F(2E) · see it in the full Act

(2B) In subsection (2A) above, “the authority” has the meaning given in paragraph 11(2) of Schedule 12A to this Act.

Defined in s.100F(2B) · see it in the full Act

(2B) In subsection (2A) above, “the authority” has the meaning given in paragraph 11(2) of Schedule 12A to this Act.

Defined in s.100F(2B) · see it in the full Act
combined authority

“combined authority” means a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009 ;”;

Defined in s.270(1) · see it in the full Act

Cases considering section 138 3

DESIREE CORT (R on the application of) v LONDON BOROUGH OF LAMBETH

[2022] EWHC 1085 (Admin) · 11 May 2022Interprets

Interprets the emergency power as available where the statutory conditions are met, including danger to life or property and an opinion that the event is likely to affect the area or its inhabitants. The power permits expenditure calculated to avert, alleviate or eradicate the effects or potential effects of the event, including accommodation for rough sleepers during the pandemic. (see paras [43]-[46]; [81]-[84]) The judgment treated the pandemic emergency power as relevant to the council’s discretionary consideration of measures to alleviate public-health risks, while recognising that the emergency circumstances could change over time. (see paras [19]-[20]; [80]) The judgment recognised that the continuing danger to life from Covid-19 kept the emergency power relevant, although the authority had to assess what measures were necessary in the prevailing circumstances. (see paras [19]-[20]; [80]-[84])

ZLL (R on the application of) v SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT

[2022] EWHC 85 (Admin) · 18 January 2022

Section 138 is treated, following the account of Ncube, as an emergency power capable in principle of supporting temporary accommodation where statutory conditions are met. The judgment uses that conclusion as legal background and leaves individual application to the local authority. (see para [7(2)])

Ncube, R (on the application of) v Brighton and Hove City Council

[2021] EWHC 578 (Admin) · 11 March 2021Interprets

Interprets section 138 as conferring a discretionary power to incur expenditure and take action during an emergency involving danger to life, including temporary accommodation for rough sleepers where the statutory conditions are met. The power operates independently of Part VII, but cannot be used to circumvent section 185. (see paras [45]-[64]; [145]-[146]; [162])

What each judgment says about section 138 is in the case-law panel in the full Act.

Amendments and notes

13 notes from legislation.gov.uk

Amendments

  1. F730S. 138(1A) repealed (14.11.2005) by Civil Contingencies Act 2004 (c. 36), ss. 32, 34, Sch. 2 Pt. 1 para. 7(a), Sch. 3; S.I. 2005/2040, art. 3(q)(r)
  2. F731S. 138(2) repealed by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 194, Sch. 34 Pt. I
  3. F732Words substituted by Local Government and Housing Act 1989 (c. 42, SIF 81:1), ss. 156(2)(a)
  4. F733Words in s. 138 (3)(a)(b) substituted (1.12.1991) by Water Consolidation (Consequential Provisions) Act 1991 (c. 60, SIF 130), ss. 2(1), 4(2), Sch. 1 para. 22(2).
  5. F734Words substituted by Local Government and Housing Act 1989 (c. 42, SIF 81:1), ss. 156(2)(b)
  6. F735Words in s. 138(3) substituted (14.11.2005) by Civil Contingencies Act 2004 (c. 36), ss. 32, 34, Sch. 2 Pt. 1 para. 7(b); S.I. 2005/2040, art. 3(q)
  7. F736S. 138(5)(6) inserted by Local Government and Housing Act 1989 (c. 42, SIF 81:1), s. 156(3)
  8. F737Words in s. 138(5) substituted (31.1.2017 for specified purposes, 1.4.2018 in so far as not already in force) by Policing and Crime Act 2017 (c. 3), s. 183(1)(5)(e), Sch. 2 para. 40; S.I. 2018/227, reg. 4(c)
  9. F738Words in s. 138(5) inserted (29.6.2026) by English Devolution and Community Empowerment Act 2026 (c. 23), s. 108(5), Sch. 25 para. 6(a) (with s. 102)
  10. F739S. 138(5A) inserted (29.6.2026) by English Devolution and Community Empowerment Act 2026 (c. 23), s. 108(5), Sch. 25 para. 6(b) (with s. 102)

Modifications

  1. C694S. 138 excluded by Local Government, Planning and Land Act 1980 (c. 65, SIF 81:1, 2), s. 1(1), Sch. 1
  2. C695S. 138(5) applied (with modifications) (8.5.2017) by The Greater Manchester Combined Authority (Fire and Rescue Functions) Order 2017 (S.I. 2017/469), art. 1(3), Sch. para. 1
  3. C696S. 138(5) applied (with modifications) (20.12.2023) by The York and North Yorkshire Combined Authority Order 2023 (S.I. 2023/1432), arts. 1(2), 46(2), Sch. 7 para. 1