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In R (Wylde & others) v. Waverley Borough Council [2017] EWHC 466 (Admin), Dove J. dismissed a challenge by two local Councillors and various members of the public to the decision of Waverley Borough Council to vary the terms of a development agreement between it and Crest Nicholson Regeneration Ltd for a regeneration scheme in Farnham known as the ‘Brightwells’ or ‘East Street’ Scheme. The Claimants alleged that the variation should have been subject to public procurement pursuant to the Public Contracts Regulations 2006 and the EU legislation which the Regulations transpose. Permission having been granted by Andrews J. on the papers, Robin Purchas QC (sitting as a Deputy High Court Judge) then ordered a preliminary hearing to deal with the submission of the Council and Crest that the Claimants did not have standing to bring the claim. The context for this submission is that the 2006 Regulations provide specific remedies for breach of their provisions, but confine the availability of remedies to “economic operators”. The question before the Court was to what extent can persons or bodies other than economic operators nonetheless advance an allegation of a breach of the Regulations via a claim for judicial review. Dove J. has today answered that question in ruling that the Claimants do not have standing. Following a comprehensive analysis of the case-law, he held at paras. 40-41:
“40. It is clear from the 2006 Regulations which have been set out above that the purpose of those Regulations and the Directive which lies behind them, is firstly, to provide for an open and transparent system for the competition for public contracts in the interests of securing a fair and efficient market for those contracts and secondly, to provide a bespoke system of remedies for those parties who are directly involved in competing for such contracts and participating in the market for them. This regime is quite clearly tightly focused on those directly engaged with and actively seeking the benefit of obtaining public contracts that fall within the scope of the 2006 Regulations. The public interest is no doubt served by these aims and objectives of the 2006 Regulations (for instance, by fostering value for money and the objective evaluation of bids for public works), but that is very different from saying that it follows that any member of the public could have an interest in the enforcement of those Regulations which should be recognised by the grant of standing in judicial review. It is in my view entirely consistent with the purpose of the Regulations to confine standing in any judicial review claim brought outside the extensive range of remedies available to economic operators, and by a person who is not an economic operator, to only those who “can show that performance of the competitive tendering procedure… might have led to a different outcome that would have had a direct impact on him”. The context of the 2006 Regulations is therefore in clear contrast to the context of environmental law cases (see paragraph 23 above), but the rationale for the approach to considering the grant of standing, based on the purpose of the legislation, is similar.
41. In my view the Law Society would come within the test which was proposed in Chandler. As Beatson J observed, given their particular circumstances they were directly affected by the subject matter of the litigation and in the context of the procurement regime (see paragraph 114 of his judgment) they are in reality akin to the kind of trade association which it appears was contemplated in the course of argument in the Unison case at paragraph 10. In my view it is clear that a council tax payer, or concerned local resident, or member of the local authority cannot without more bring themselves within that test. There is no direct impact upon them as a consequence of the alleged failure in any procurement requirements.”
Dove J. went on to accept the submission of the Council and Crest that the conclusions of Lang J. in R (Gottlieb) v. Winchester City Council [2015] EWHC 221 (Admin), in which she held that a local resident did have standing to bring a procurement judicial review of the variation to the development agreement in that case, was plainly wrong and should not be followed. David Smith and Matthew Dale-Harris appeared for the Claimants, instructed by Burkill Govier.
