Conflicting Procurement Judgments Bring Fresh New Challenges To The Market

In the recent case of Wylde v Waverely Borough Council [2017] EWHC 466 (Admin), five claimants attempted to challenge the variation of a development agreement using judicial review proceedings on the grounds that it was in breach of the Public Procurement Regulations 2006.

The claimants were:

two councillors of the defendant Council who were also members of the Farnham Town Council; and three members of local civic societies However, Mr Justice Dove ruled that the claimants didn't have sufficient interest or 'standing' to bring their application.

This ruling, relating to councillors, conflicts with an earlier decision from Mrs Justice Lang in the case of R (on the application of Gottlieb) v Winchester City Council [2015] EWHC 231 (Admin). This begs two questions: can the two decisions be reconciled and what lessons need to be learnt from this latest case?

Case Background On 22 April 2003, the Council entered into a conditional development agreement with Crest Nicholson Regeneration Limited and Sainsbury's Supermarkets Limited. The agreement was for a project known as 'Brightwells' in the East Street area of Farnham, after a competitive process which did not follow the EU procurement regime for public works concessions.

Here are the facts:

Planning permission for a mixed-use development including retail, café, cinema, replacement day centre, car park and 239 residential units was granted on 7 August 2012 This planning permission replaced an earlier planning permission granted in August 2009 A compulsory purchase order for site assembly was confirmed in August 2013 and implemented before the court hearing Funding for the scheme had been secured from Surrey County Council Further variations to the scheme and the terms of the development agreement were necessary to satisfy the viability condition in the development agreement, including a reduction in the Council's minimum land value from £8.76m to £3.19m, being the premium for the grant of a 150 year lease. These were approved by the Council on the recommendation of its Executive on 24 May 2016. Permission to apply for judicial review was granted on 12 August and on 9 September, an order was made for the trial of the preliminary issue about standing.

Ex ante transparency notice The Council published a voluntary ex ante transparency notice in the Official Journal, justifying the decision to enter into the variation without competition under the Concession Contracts Regulations 2016 "because it...