The Court of Appeal has today
handed down judgment in the first appeal to consider the Concessions Contract
Regulations: Ocean Outdoor UK Ltd v London Borough of Hammersmith & Fulham
[2019] EWCA Civ 1642. The Court of Appeal dismissed Ocean’s appeal from the
judgment of O’Farrell J, which had dismissed Ocean’s claim that the
Concession Contracts Directive and Regulations applied to two leases of land
owned by the Council either side of the Hammersmith Flyover on which are
situated substantial structures which support large digital advertising
screens. The Court of Appeal confirmed (1) that the leases were not “services”
concessions contracts, (2) that they were not contracts “for pecuniary
interest”, and (3) that in any event the land exemption applied. As to (1), the
Directive and Regulations relate to services which are for the benefit of the
contracting authority or its residents, in furtherance of the authority’s
strategic objectives or to satisfy their statutory obligations. A lease that
permitted land to be used to sell advertising to third parties was not
entrusting a “service” to the tenant. As to (2), an essential requirement
of a contract for pecuniary interest is that the contractor assumes a legally
enforceable obligation to carry out the services. The leases did not impose any
such obligation on the tenant, as it only contained a permitted user clause. As
to (3), the land exemption is wide: the leases were genuine leases and
agreements for the rental of land.
The judgment is available here.
James Goudie KC, Joanne Clement and Christopher Parkin acted for the successful local authority, instructed by Mari Roberts of Sharpe Pritchard LLP.
