![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Technology and Construction Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> AAEW Europe LLP & Ors v Basingstoke And Deane Borough Council [2019] EWHC 2050 (TCC) (26 July 2019) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2019/2050.html Cite as: [2019] WLR(D) 469, [2019] EWHC 2050 (TCC), [2020] PTSR 21 |
||
[New search]
[Context
]
[View without highlighting]
[Printable PDF version]
[View ICLR summary: [2019] WLR(D) 469]
[Buy ICLR report: [2020] PTSR 21]
[Help]
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
B e f o r e :
____________________
| (1)AEW EUROPE LLP (2)TRUSTEE 1 FB LIMITED (3)TRUSTEE 2 FB LIMITED |
Claimants |
|
- and - |
||
BASINGSTOKE AND DEANE BOROUGH COUNCIL |
Defendant |
|
- and - |
||
| NEWRIVER LEISURE LIMITED |
Interested Party |
____________________
Jason Coppel QC and Patrick Halliday (instructed by Womble Bond Dickinson LLP, Solicitors) for the Defendant
Fergus Randolph QC (instructed by Addleshaw Goddard LLP) for the Interested Party
Hearing dates: 16-17 July 2019
____________________
Crown Copyright ©
SIR ROBERT AKENHEAD:
Introduction
Basingstoke
and Deane Borough Council ("
Basingstoke")
owns
Basingstoke
Leisure Park ("the Leisure Park") which for a number of years to date has hosted a number of leisure facilities, including a multiscreen cinema, swimming pools and lagoon area with various features (sometimes called the "Aquadome"), gym facilities, an ice rink, restaurants, bowling alley, bowls, a skiing and skydiving facility, bingo and the Milestones Museum. The Leisure Park is away from the town centre. The Leisure Park was set up in the 1990s with most of the larger facilities let on 100-150 year ground leases.
Basingstoke
in Hampshire is well located in terms of road and rail.
Basingstoke
began to consider in detail the possibility of developing (or redeveloping) and the regeneration of the Leisure Park. In that respect it retained a number of professionals including a firm called Montagu Evans who were and are planning development specialists to assist it. Because this was going to involve a public procurement which was subject to the Public Contracts Regulations 2006 as amended, a notice had to be and was posted in the Official Journal of the European Union (the "OJEU Notice") on 21 June 2013. Although there were numerous expressions of interest for the initial stage of the tendering process (the Invitation to Submit Outline Proposals ("ISOP") stage), only 2 bids were submitted apparently in accordance with
Basingstoke's
published evaluation criteria. One of those bidders was the Interested Party in this case, Newriver Leisure Ltd ("NRL"). Although both bidders were invited to proceed to the second stage which involved the submission of detailed proposals, only NRL submitted a final, more detailed bid. Negotiations proceeded with NRL and as from 2 April 2015 NRL and
Basingstoke
proceeded on the basis of an "Exclusivity" agreement.
Basingstoke
Cabinet papers for a meeting held on 12 April 2016). Proposals for this scheme began to be developed and were submitted by April 2016. A report was prepared (the Cabinet Report) to be laid before the
Basingstoke
Cabinet at its meeting on 12 April 2016 which set out NRL's latest proposals in relation to the proposed development which involved the complete redevelopment of the existing Leisure Park such that the leisure facilities would double in size (presumably over and above that which currently then existed) and be restructured into a series of leisure zones and, as Paragraph 1.6 of the Cabinet Report indicates, "up to 300,000 sq ft of retail space, provided as a designer outlet centre [would] be incorporated". The Cabinet Report indicated that legal advice from solicitors and Leading Counsel had been obtained in relation to, amongst other things, whether the proposal "remained within the procurement process" (Paragraph 15.1). As indicated in the witness statement of Mr Bovis, the Cabinet resolved to follow the recommendations of the Cabinet Report to the effect that
Basingstoke
would enter into Heads of Terms with NRL and into a Development Agreement and Lease in respect of the Leisure Park redevelopment. The Cabinet decision became effective from 14 June 2016 upon the decision of
Basingstoke's
Overview and Scrutiny Committee.
Basingstoke
(Festival Place) and, as it became aware of the later proposals either generally or in detail, its solicitors, Berwin Leighton Paisner LLP ("BLP") began to contact
Basingstoke
from early December 2016 onwards, as is evident from its letter dated 13 October 2017 to
Basingstoke.
As that letter makes clear, AEW had been having concerns as to the conduct of the procurement following a statement issued publicly by
Basingstoke
in April 2016 to the effect that the procurement up to that time had been conducted in a compliant manner.
Basingstoke
and NRL had started after the Overview and Scrutiny Committee's decision such that, as Mr Bovis said, by January 2018 there was substantive agreement in relation to Development Agreement, albeit that there were some minor and non-material alterations before it was formally entered into. This Agreement will be considered in some detail later in this judgment.
Basingstoke,
issued proceedings against
Basingstoke
on 17 September 2018 in this Court seeking, amongst other things, a "declaration of ineffectiveness in respect of the March 2018 Contract" as well as damages.
The Proceedings
Basingstoke
was "only entitled to entertain bids that fulfilled the requirements identified in the OJEU Notice and further is prohibited from entertaining any bid or contracting on the basis of any bid that involves any material change from the scope of works and/or services as identified in the OJEU Notice" (Paragraph 56). They assert (Paragraph 58) that they are to be considered as "economic operators" within the statutory definition to whom the statutory public procurement obligations were owed.
Basingstoke
was served on 21 December 2018, amended on 12 July 2019. In summary in relation to the Preliminary Issue matters,
Basingstoke
argued that the claim for a declaration of ineffectiveness was misconceived because the "Contract was advertised and a tender process ensued, so the first ground for ineffectiveness is inapplicable even if (which is denied) the Contract in its final form differed from what was advertised" (Paragraph 4(5)). At Paragraph 69 and following,
Basingstoke
effectively asserted that the contents of the OJEU Notice were sufficiently broad to cover the development envisaged by the Development Agreement.
Basingstoke's
Defence but referring in some detail to the Development Agreement. It asserted that from as early as November 2016 the first named Claimant had stated that it would oppose the redevelopment of the Leisure Park "through the planning process" (Paragraph 10).
Basingstoke,
supported by NRL, applied for there to be a preliminary issue, with Mr Justice Fraser ordering on 16 April 2019 so far as is material that there should be a preliminary issue: "whether, assuming the breach of procurement law alleged by the Claimants, the facts of the claim are capable of giving rise to grounds for a declaration of ineffectiveness (in the light of the arguments pleaded in summary at paragraph 4 (5) of the Defence)". He accepted, as recorded at Paragraph 2 of the transcript, that the issue would have to be "slightly tweaked". However, this led to further extensive discussions before the Court at a later date before Mr Justice Waksman on 16 May 2019 whereby the following was ordered:
"The same Preliminary Issues Trial shall proceed on the basis of an assumption that the contract entered into by the Defendant and Interested Party that is the subject of these proceedings departs from the contract sought by the tender process to such an extent that it is a materially varied contract which was not actually the subject of the previous tender process and would have required a fresh process in accordance with the applicable regulations".
"Whether, assuming the breach of procurement law alleged by the Claimants (namely that the Development Agreement departs from the contract sought by the tender process to such an extent that it is a materially varied contract which was not actually the subject of the previous tender process and would have required a fresh process in accordance with the applicable regulations), the facts of the claim are capable of giving rise to grounds for a declaration of ineffectiveness (in the light of the arguments pleaded in summary at paragraph 4(5) of the Defence)."
Basingstoke
and NRL produced a note of the oral judgment, which was not agreed by AEW's legal team, albeit it was not positively or even specifically challenged as to its wording. The note went to Mr Justice Waksman who produced his slightly amended but approved draft. I will treat this as a proper note of the judgement which he gave on 16 May 2019. He specifically referred to relevant paragraphs in the Alstom judgment. He referred to Paragraph 27 which referred to there being assumptions that "there was a materially varied Contract which required a new tender process if that Contract was to be proper within the Regulations". He recognised that the Alstom case involved a "qualification scheme", which the current case does not. He recognised that the central question in Alstom was "as to whether it is right (or sufficiently arguably right to prevent striking out) that the alteration of the Contract makes that Notice [of the qualification scheme] irrelevant, with the effect that the relevant Notice was in fact not given". He said that the position was "the same in this case" and that even "if one can show that any Notice was given, was that good enough?". To some extent at the very least, Mr Justice Waksman considered and analysed in some detail Mann J's judgment, referring to the use by Mann J of the expression that the test was "mechanistic" and relying on the fact that the Notice had "sparked the competition" in that case. He said that he did not read the current case (presumably on the preliminary issue) as different to that decided by Mann J and that he had to "give effect to the decision made in that case which is assumed to be correct unless it is clearly wrong". He said that it did not seem to him that the procedure or current case was different as had been argued by Mr Bowsher QC. He said that at "the end of the day, there is considerable force in putting this as a comparison only between the original Notice in the Contract to see if it is a Notice objectively capable of being the prior Notice for the contract in this case" going on that even "if the Claimant here may be on stronger ground that there has been material alteration here, that is an ancillary point, the issue being whether the Notice sparked the competition in this case". He continued: "it may be that Alstom was different because the qualification notice was more generic. But that is the heart of the issue – the comparison between the Notice and the contract". He rejected the application of the Claimants for very substantial additional disclosure.
The Law
Basingstoke
was a "contracting authority" in this case which was obliged to comply with the relevant PCR, (b) it owed duties to "economic operators", albeit that there is a very real issue as to whether any of the Claimants have any locus in the current proceedings as economic operators, (c) none of the Claimants became involved purportedly or otherwise as actual or potential economic operators at the time that this procurement started or indeed much before 2016 and (d) the relevant type of procurement procedure adopted by
Basingstoke
here was the "negotiated" type.
"18 (1) Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
26 (1) When awarding public contracts, contracting authorities shall apply procedures that conform to this Part.
(2) Such contracts may be awarded only if a call for competition has been published in accordance with this Part and the Public Contracts Directive…
(4) Contracting authorities may apply a competitive procedure with negotiation or a competitive dialogue in the following situations…
(8) Subject to paragraph (9) the call for competition shall be made by means of a contract notice in accordance with regulation 49…
29 (1) In competitive procedures with negotiation, any economic operator may submit a request to participate in response to a call for competition by providing the information for qualitative selection that is requested by the contracting authority.
(2) In the procurement documents, contracting authorities shall-
(a) identify the subject-matter of the procurement by providing a description of their needs and the characteristics required of the supplies, works or services to be procured…
(11) Only those economic operators invited by the contracting authority following its assessment of the information provided may submit an initial tender which shall be the basis for the subsequent negotiations…
(14) The minimum requirements and the award criteria shall not be subject to negotiation…
(16) During the negotiations, contracting authorities shall ensure equal treatment of all tenderers and, to that end –
…(b) they shall inform all tenderers, whose tenders have not been eliminated under paragraph (19), in writing, of any changes to the technical specifications or other procurement documents, other than those setting out the minimum requirements; and
(c) following any such changes, they shall provide sufficient time for tenderers to modify and re-submit amended tenders, as appropriate…
(19) Competitive procedures with negotiation may take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in another procurement document.
49. Contract notices shall contain the information set out in Part C of Annex 5 to the Public Contracts Directive and shall be sent for publication in accordance with regulation 51.
72 (1) Contracts…may be modified without a new procurement procedure in accordance with this Part in any of the following cases…
(9) A new procurement procedure in accordance with this Part shall be required for modifications of the provisions of a public contract…during its term other than those provided for in this regulation.
98 (1) Paragraph (2) applies if -
(a) the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 89 or 90; and
(b) the contract has already been entered into.
(2) in those circumstances, the Court –
(a) must, if it is satisfied that any of the grounds for ineffectiveness applies, make a declaration of ineffectiveness in respect of the contract unless regulation 100 requires the Court not to do so;
(b) must, where required by regulation 102, impose penalties in accordance with that regulation …
99 (1) There are three grounds for ineffectiveness.
(2) The first ground
Subject to paragraph (3), the first ground applies where the contract has been awarded without prior publication of the contract notice in any case in which Part 2 required the prior publication of a contract notice…
100 (1) Where the Court is satisfied that any of the grounds for ineffectiveness applies, the Court must not make a declaration of ineffectiveness if –
(a) the contracting authority or another party to the proceedings raises an issue under this regulation; and
(b) the Court is satisfied that overriding reasons relating to a general interest require that the effects of the contract should be maintained.
(2) For that purpose, economic interests in the effectiveness of the contract may be considered as overriding reasons only if in exceptional circumstances ineffectiveness would lead to disproportionate consequences…
101 (1) Where a declaration of ineffectiveness is made, the contract is to be considered to be prospectively but not retrospectively, ineffective as from the time when the declaration is made and, accordingly, those obligations under the contract which at that time have yet to be performed are not to be performed.
102 (1) Where the Court makes a declaration of ineffectiveness, it must also order that the contracting authority pay a civil financial penalty of the amount specified in the order."
Basingstoke
and NRL was the first instance decision of Mr Justice Mann in Alstom. The case related to a public procurement exercise under the Utilities Contracts Regulations 2006 (as amended in 2009), these being comparable to the PCR, relating to the provision of railway stock for the Channel Tunnel. This was procured under a tendering system known as the "qualification system" permitted by Regulation 16 which materially stated:
"(1) Subject to regulation 17, for the purposes of seeking offers in relation to a proposed contract a utility shall make a call for competition.
(2) The requirement under paragraph (1) to make a call for competition is satisfied –
(a) in the case of a contract to be awarded using the restricted procedure or the negotiated procedure-
…(ii) if a notice indicating the existence of a qualification system for economic operators has been sent to the Official Journal in accordance with regulation 25(17) and the requirement referred to in paragraph (5) is satisfied…"
"In this case the proposal was for the negotiated procedure (defined elsewhere) and there was a qualification system. Under such a system the notice referred to reg. 16(2) (a) (ii) tells potential tenderers that within a given timeframe the utility in question may be proposing contracts of certain kinds, that there is a scheme of qualification for those who might wish to tender, and potential tenderers are thereby invited to demonstrate that they qualify to be in a pool of tenderers for that sort of work. The utility then selects tenderers and deals with them in accordance with the requirements of the Regulations. That is what happened in this case. Pursuant to a notice both Alstom and Siemens qualified and thereafter were selected and embarked on the tendering process. There is no dispute thus far. I shall call this form of notice a "qualification notice".
"Because of the assumptions on which this application proceeds, I have to consider this matter on the footing that the differences between the final form of contract and the tender conditions were such as to make the contract sufficiently materially different as to require a new tender process. The defendants accept the factual assumption within that, and Eurostar accepts the underlying legal principle in its defence. It is clear to me that a notice of the qualification scheme is capable of being a notice required to be given for the purposes of the first ground [meaning the first ground for making a declaration of ineffectiveness] and no one disputes that such a notice was given in this case. So the central question in this case is whether it is right (or sufficiently arguably right to prevent striking out) that the alteration of the contract makes that notice irrelevant, with the effect that the relevant notice was in fact not given."
"38. It seems to me that this argument does not give sufficient weight to the mechanism that Parliament has adopted in the Regulations, and also Directive 2007/66/EC, which also spoke in terms of the giving of a notice. Reg 45K does not speak in terms of a failure of the competitive process generally. It specifically ties itself down to the failure to give a prior notice. In the present case a contract notice was not required. It was open to Eurostar to adopt the qualification procedure instead. It did so. The first step in that (for present purposes) is the publishing of the notice required by Reg 16(2)(a)(ii). Such a notice was published. It preceded the competition between Alstom and Siemens. It is not said that no such notice was given; indeed it is implicit in the Particulars of Claim that such a notice was given, because paragraphs 4 and 5 of the Particulars in the first action, adopted in this action, plead that Eurostar used a qualification system. Nor is it said that the notice was in terms incapable of applying to the final contract. Qualification notices are in such general terms that that would be a difficult thing to say in this case. No complaint is made about the notice. The pleading goes on to refer to an invitation to negotiate, and the essence of the complaint about the final contract is that it is said to demonstrate that Eurostar's requirements had materially changed. But that does not affect the force and effect of the notice, or its applicability. So the complaint is not, and in my view cannot be, that a required notice was not given. It was given. The Regulations required a notice. It could have been in one of the three forms referred to in Reg 16. Eurostar gave a qualification system notice (and then, if it is relevant, selected the potential tenderers from the pool of the qualified, for the purposes of Reg 16(5)). No other notice was required. Any divergence from the proper path which led to an aberrant contract as is assumed in this case is a breach of subsequent procedure, not consequential upon a failure to give the notice. There is therefore no failure under ground 1.
39. Miss Hannaford sought to rely on what she said was the absurdity of approaching this question without requiring a link between the required notice and the final contract (which link, she said, was broken by the material alterations in the final contract). She said that if the situation were as the defendants would say it was, one could have a qualification notice, and then have the utility taking tenderers from outside the pool and escaping ineffectiveness because of what would, on those facts, be a wholly irrelevant notice, albeit a notice which ostensibly covered the contract in question (because of the generality of the description of the activities that is contained in an qualification notice).
40. In my view Miss Hannaford is right about a link, but only to a limited extent. Any notice which is relied on by the utility as being part of its compliance with its duty to economic operators must be a notice which is objectively capable of being a relevant notice. Mr Howell sought to say that any qualification notice would suffice in the present case provided that it was given before the contract was concluded, and referred to an intention to contract within the period of the notice. Thus he relied (so far as he had to) on a qualification system notice which was placed in the Official Journal in May 2010, which was well into the negotiation and tender process. He said he could also, as a matter of analysis, have relied on a notice given one day before the actual contract. The purpose of the notice, he said, was to give notice of the competition, and to that end it did not matter when it was given provided it was adequate in form.
41. Those are unattractive submissions. It cannot realistically have been intended that a utility could rely on a notice which was given at a time when, on the facts, it had nothing whatsoever to do with what had been going on in relation to the contract in question. While the test of the existence or absence of a notice is a mechanistic test, it cannot be taken to be so mechanistic as to produce a test which is pure form and no substance at all. Such a test would be pointless. Mr Howell suggested it would have some point because it would give notice that there is a competition, but that would be a largely pointless indication if the notice were given (as Mr Howell said it could be given) very shortly before the contract.
42. Be that as it may, Mr Howell does not have to go that far. There has, in my view, to be a notice which is capable of being related to the procedure and the contract. Even so, Alstom cannot satisfy this ground because of the earlier qualification notice which is not only objectively capable of being the prior notice for the competition in this case, it was actually the notice which sparked the competition in this case. Even if Miss Hannaford's material alteration case is right, there was still a prior notice. She submitted that in such a case there would be an illegal direct award, and that that should attract the sanction. The trouble with that argument is that that is not how the Regulation operates. It operates by looking to the existence or absence of a notice. That is, as I have observed, a mechanistic test. The benefit of such a test is that it will often be easier to apply, and since the availability or not of the ineffectiveness remedy is something which calls for clarity if the remedy is to operate sensibly in a commercial context, ease of application is important. The detriment is that it is indeed mechanical, and may not catch some instances where, on the merits, it might be thought the remedy should operate. The mechanics of this test rule out the first ground in this case.
43. I therefore find that ground 1 is not available to Alstom."
The OJEU Notice and the Development Agreement
(a) Under Section II, which identifies the "Object of the Contract", the "Short description of the contract or purchase" is said to be:
"The Council is seeking a development partner to work with the Council and then to implement a long-term strategy plan for the development ofBasingstoke
Leisure Park. The Council is looking to establish a partnership which will provide the foundations and commercial/financial basis for securing investment to revitalise existing leisure facilities and also provide new 'destination' facilities"
Under "Total quantity or scope", the following is said:
"The Council is seeking to enter into a long-term regeneration partnership and it is envisaged that the partnership will last up to 15 years, with long leasehold (s) granted to the developer as development phases are delivered. The value of the contract will be ultimately dependent on the scope of the regeneration.
Estimated value excluding VAT:
Range: between 50,000,000 and 150,000,000 GBP".
The duration of the contract or time limit for completion was said to be 180 months from the award the contract."
(b) Section IV identified that the type of tendering procedure was to be "negotiated", that 3-5 tenderers were envisaged and that the award criterion was to be the "most economically advantageous tender in terms of the criteria stated in the specifications, in the invitation to tender or to negotiate or in the descriptive documents".
(c) Section VI, entitled "Complementary Information", contained the following at VI.3:
"Basingstoke
Leisure Park is a prime leisure led development opportunity, with the 45 acre site offering significant scope for change. The site is occupied by 12 tenants who provide a range of existing leisure facilities but some are now dated and have suffered from enhanced competition from other leisure facilities. To the south there is a further 8 acres (3.2 Ha) of undeveloped land, although it is subject to environmental constraints.
The Council is seeking a long term development partner who it can work with to create a regional leisure destination and encourage reinvestment within the existing Park, and will also explore the means by which the development opportunity is best pursued, including whether by co-investment or other joint venture arrangement.
This notice is the start of a structured marketing competition to appoint a development partner who will bring forward development and commercial property expertise to help transform the Leisure Park and put it at the forefront of leisure and recreational provision in the region. The project is key to the continued prosperity ofBasingstoke
and therefore a high priority for the Council.
The development partner will be required to carry out the following key roles:
-Leading in the repositioning of the profile of the Park.
-Pre development activities, to include; securing occupiers, master plan/design evolution, planning, etc.
-Undertake a core development role and apply its expertise and resources to support this.
-Being proactive in creating development and investment opportunities.
-Bringing forward proposals that are deliverable on a phased basis, set against a realistic delivery programme.
The Council recognises that the partnership will need to be based on flexible delivery arrangements, founded on sound commercial principles, which encourages and motivates the development partner to apply its expertise and resources, and to actively promote the Park and pe existing and future opportunities which are capable of delivering the Council's aspirations for the Park.
The development partner will have an exclusivity period to work up a scheme for phase 1. Phase 1 is not defined in terms of land take. Land uses will focus primarily on the preferred uses, namely, leisure, restaurants/cafes/bars, retail (A1), hotel and conference facilities uses. Once Phase 1 is delivered, the development partner will have the ability to draw down other land on the site.
Project documents can be viewed in the data room via the following link…"
"Executive Summary
Basingstoke
Leisure Park is a prime leisure led development opportunity, with the 62 acre site offering significant scope for change…
- Opportunity to enhance leisure offer to create a facility of significant regional importance.
- Already an established and successful leisure offer present, providing a strong platform for improvement…"
"Introduction
Basingstoke
Leisure Park offers a prime development opportunity.
Basingstoke
…wish to create a regional leisure destination of significance and encourage reinvestment within the existing leisure park facilities. [
Basingstoke]
is seeking a long-term development partner to realise this vision."
"Leisure Park Strategy & Its Objectives
The objective of the strategy is to encourage regeneration and reinvestment into the Park, and the developer is expected to deliver this. Principles of the strategy are:
1. To seek innovative proposals from parties to create a regional leisure destination within the Council's landholding at the Leisure Park and encourage reinvestment within existing facilities.
2. To enable the whole of the Leisure Park...to be part of any regeneration proposal.
3. To secure a development partner to bring forward holistic development on the Park and offer that party a long term partnership to incentivise them to deliver.
4. To control and steer the nature of development through retention of the Park's ownership and through a governance structure to manage the partnership."
"The Developer's Role
The Council is seeking to enter into a long-term regeneration partnership and it is envisaged that the partnership will last 15 years, with long leasehold(s) granted to the developer as development phases are delivered. The Council expects the etc developer to have financial standing, experience, capacity and vision to:
- Lead in the repositioning of the profile of the Leisure Park.
- Carry out pre development activities: securing occupiers, master plan/design evolution, planning,.
- Undertake a core development role and apply its expertise and resources to support this.
- Be proactive in creating development and investment opportunities.
- Bring forward proposals that are deliverable on a phased basis, set against a realistic delivery programme."
Basingstoke
Leisure Park offers scope for a range of new development uses" under which the following table appeared:
| USE | COMMENT |
| Leisure | Required to be the key development component of any proposal. Deliverable and ideally innovative leisure uses are sought. The Council recognises that trends in leisure uses change quickly and therefore has no preconceived ideas of what will constitute a modern, strong and attractive leisure offer for the Park. |
| Restaurants/Cafes/Bars | Anticipated to form an integral part of the modern leisure development mix for the Park |
| Retail (A1 uses) | If included, must be supporting the main leisure use and be ancillary. Anticipated that retail tenants will sell goods targeted at meeting customers' leisure needs. |
Thereunder the following appeared:
"It is also recognised by the Council that in supporting the financial viability of proposals for the park, schemes could include ancillary supporting and compl[e]mentary uses. The scale of development should reflect the size of the opportunity available, and the Council's ambition to secure a leisure offer of regional significance."
Discussion
(a) There has to be an effective notice "which is capable of being related to the procedure and the contract" awarded.
(b) Regard can be and indeed should be had to the fact that the OJEU notice sparked the competition.
(c) The Regulation (dealing with ineffectiveness) operates by looking to the existence or absence of an OJEU notice which involves the application of a "mechanistic test" the benefit of which is that it will be easier to apply for clarity reasons "if the remedy is to operate sensibly in a commercial context"
Basingstoke, having published the OJEU Notice which it did (for a regenerated Leisure Park), then let a contract for 1,000 dwellings on the site, one can readily see that such a contract went so far beyond what was covered by the original Notice that it bore no relation to it at all. I would therefore not go so far as Mr Randolph QC went (Paragraph 51 (ii) of his Skeleton Argument) where he said that the Declaration of Ineffectiveness remedy is only relevant where a contracting authority fails to make a call for competition at all. The Claimants had sought extremely extensive disclosure of documentation for this Preliminary Issue but its application for that was refused and this would not be necessary, as Mr Justice Waksman in the result resolved because the sort of detailed factual and historical investigation envisaged by such disclosure would not be required to be done for a mechanistic test approach.