COMMENT
This means that the relevant local authority must have had ‘due regard’ to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.’
Ensuring that this requirement is met can be a relatively simple matter, made easier by good, clear documentation; decisions made without the necessary compliance may well be at risk of challenge and resulting costs and delays.
In the wider context, the government is already advising LEPs to build equalities considerations into their applications for European Structural Funds.2
Strategic Environmental Assessment (SEA)
The Conservatives announced their intention to revoke Regional Spatial Strategies (‘RSS’) in 2009 and that process is now completed. LEPs have not replaced RDAs on a like-for-like basis but it is fair to say that they have grown to
programmes is an established requirement of planning law, arising from SEA Directive 2001/42/EC and implemented by The Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No.1633).
Under Article 2(a), the plans and programmes subject to the Directive include those which are: subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government.
Regulation 2(1) defi nes ‘plans and programmes’ as documents “subject to preparation or adoption by an authority at national, regional or local level…” Regulation 5(4)(b) then goes on to say that where a plan or programme is to be adopted which “sets the framework for future development consent of projects…there is a requirement for an environmental assessment in compliance with the 2004 Regulations.”
It is clear that LEPs are not intended to operate as planning authorities. It is equally clear that their strategic plans are not intended to be local or regional planning documents. Nevertheless, the Directive is traditionally interpreted in a purposive way.
If, or perhaps when, LEPs start to use their plans to identify preferred locations for particular activities, and indicate their support for and funding of specifi c developments on identifi ed sites, particularly where this includes local or combined authorities approving such plans as part of their own decision-making process, they risk making those plans into documents that set the framework for
occupy the space left on the regional planning stage. The Government has already fallen foul of European strategic planning requirements in the abolition of RSS documents3
that LEPs and their new strategic plans could too if they are not careful.
The environmental assessment of plans and
future development consents, requiring formal assessment of their environmental effects.
; there is a risk State Aid
The distribution of funding by a LEP will often bring with it concerns about breaching state aid rules. State Aid occurs where a ‘measure’ is
1) with or through state resources; 2) favours a particular undertaking or the production of certain goods; 3) distorts or threaten to distort competition; and 4) affects intra-community trade. Favouring an undertaking occurs when support is limited to specifi c undertakings or in a region or sector and includes loans ‘at a favourable rate’.
Clearly, the Local Growth Fund will be state resources and a LEP will need to ensure that it has structured the funding of projects and businesses in such as way that it is not giving particular entities an unfair advantage. If it was to be decided that funding (even as a loan) was illegal State Aid then the funding would need to be returned and there could be a large fi ne.
Obviously this would have negative affects on the economic development within an area.
Such drastic consequences can be mitigated by having a thorough and working knowledge of the main risk mitigation measures and structures within the parameters of approved state aid exemptions and this is an area where specialist legal advice should be sought.
References
1
tinyurl.com/PSE-growth-deals-1 2
tinyurl.com/PSE-growth-deals-2 (paragraph A2.41)
3
tinyurl.com/PSE-growth-deals-3 About the authors
Anja Beriro is part of the Government and Infrastructure team at Browne Jacobson LLP and regularly advises local authorities and other public sector bodies on shared services, governance arrangements, procurement and general commercial issues. She can be contacted on 0115 976 6589 or
anja.beriro@
brownejacobson.com. Sue Chadwick is a local authority lawyer with more than 20 years experience in planning, governance and development.
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public sector executive Sep/Oct 13 | 21
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