Faraday Development Ltd v West Berkshire Council & Anor

Faraday Development Ltd v West Berkshire Council & Anor

The development agreement, though not immediately a public works contract, committed the council to entering into such a contract upon the developer exercising its option to draw down land, thereby triggering binding obligations to carry out works. This amounted to an unlawful procurement without a lawful procurement process. The council's voluntary transparency notice was invalid as it failed to provide an adequate justification. Claims for a declaration of ineffectiveness were not precluded, and claims for other relief were not time-barred in the circumstances.

Parties
Appellant: Faraday Development Ltd.; Respondent: West Berkshire Council; Interested Party: St Modwen Developments Ltd.
Jurisdiction
England and Wales
Judgment Date
14 November 2018
Procedural Posture
Civil Appeal / Appeal From the Administrative Court (planning Court) to the Court of Appeal
Outcome
appeal allowed
Legal Topics
Public Works Contracts, Public Services Contracts, Procurement Procedures, Declarations of Ineffectiveness, Judicial Review, EU Directives, Option Agreements, Time Limits for Claims
Public Procurement Administrative Law Contract Law Public Works Contracts Public Services Contracts Procurement Procedures Declarations of Ineffectiveness Judicial Review +3 more

Case Brief

Summary, issues, holding and outcome

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Parties

Faraday Development Ltd.

Appellant

West Berkshire Council

Respondent

St Modwen Developments Ltd.

Interested Party

Procedural Posture

Civil Appeal / Appeal From the Administrative Court (planning Court) to the Court of Appeal

Legal Issues

  1. 1 Whether the development agreement constituted a 'public works contract' under Directive 2004/18/EC and the Public Contracts Regulations 2006
  2. 2 Whether the council unlawfully committed itself to entering into a 'public works contract' without following a procurement procedure
  3. 3 Whether the procurement regime was deliberately and unlawfully avoided

Ratio Decidendi

The development agreement, though not immediately a public works contract, committed the council to entering into such a contract upon the developer exercising its option to draw down land, thereby triggering binding obligations to carry out works. This amounted to an unlawful procurement without a lawful procurement process. The council's voluntary transparency notice was invalid as it failed to provide an adequate justification. Claims for a declaration of ineffectiveness were not precluded, and claims for other relief were not time-barred in the circumstances.

Court Disposition

appeal allowed

Orders

  • Appeal allowed; further submissions invited on the appropriate form of relief.