Mr Justice Dove has today handed down judgment in R (Wylde) v Waverley Borough Council [2017] EWHC 466 (Admin). This is an important decision about limitations on the use of judicial review in order to challenge public authorities’ procurement decisions. The Court decided that the claimants, who were not “economicoperators” with an interest in securing the contract which was the subject of their claim, did not have standing for a claim that the contract had been varied contrary to the defendant’s procurement law duties.
The claim concerned a large-scale development agreement for Farnham town centre. The defendant Council decided to vary the agreement, decreasing the sum payable by the developer to the Council for the land in question. Variation was necessary in order to make the development economically viable.
The claimants were a group of local councillors and residents who opposed the development. They issued a claim for judicial review, claiming that the variation amounted to a new contract, and that the Council had therefore breached procurement law by failing to hold a fresh procurement competition for the varied contract.
The Court decided as a preliminary issue whether the claimants had standing to pursue their claim. It agreed with the Council that the test for standing, where the grounds for judicial review consist of a breach of the Public Contracts Regulations 2006, is more restrictive than the ordinary test for standing in judicial review. Applying R (Chandler) v Secretary of State for Children, Schools and Families [2010] LGR 1, it held that the claimants did not have standing, because they were unable to demonstrate any “direct impact” upon them which would arise from the conduct of a competitive tendering exercise. They were not themselves interested in securing the development agreement; they were not proximate to any economic operator which was interested in doing so; there was no evidence that other developers were interested in securing the development agreement and pursuing a development which the claimants would prefer; and even if there was a fresh procurement competition, it would be a competition for the same development scheme as that currently in place, which the claimants opposed.
In reaching that conclusion, Mr Justice Dove stated that R (Gottlieb) v Winchester City Council [2015] EWHC 231 (Admin) had been wrongly decided on the standing issue. The material facts in Gottlieb had been very similar: there too, a local resident and councillor claimed for judicial review of the variation of a development agreement, in order to advance his opposition to the development. His claim succeeded, Mrs Justice Lang refusing to withhold relief on the grounds that he lacked standing to bring it. In Wylde, Mr Justice Dove agreed with defendant Council that Gottlieb had failed properly to apply the restrictive test for standing set out in Chandler.
Nigel Giffin KC, Jason Coppel KC and Patrick Halliday acted for the successful defendant Council. The judgment will be of wide interest to developers and local authorities involved in development agreements and their variation, and to procurement law practitioners.
A copy of the judgment can be found here.
