Welcome to the November 2006 edition of SP Focus.  In this issue you will find a report on the Law Society’s Model Planning Obligation Deed of Agreement, an article on an important recent case on Tree Preservation Orders in which we acted for the local authority, and a question-and-answer focusing on the Public Contracts Regulations 2006.  In addition we round up the latest news at Sharpe Pritchard.  We hope you find this edition interesting and informative, and as always we invite your suggestions as to future topics you would like covered in future editions of SP Focus.

Contact Tel: 020 7405 4600

enquiries@sharpepritchard.co.uk

SP NEWS ROUND UP

To read all the latest SP news, please click on the link below

http://www.sharpepritchard.co.uk/news/news.htm

Sharpe Pritchard appointed on Cambridgeshire’s Street Lighting PFI

Cambridgeshire County Council has appointed Sharpe Pritchard as its legal advisors for its Street Lighting PFI project.

Sharpe Pritchard’s team will work closely with the County’s in-house legal services on the project, which is currently at outline business case stage.  The Sharpe Pritchard team include partners Julia Rudin and Roseanne Serrelli. 

Sharpe Pritchard are also working on the County’s Waste PFI and Historical and Resource Centre PFI projects.

Decriminalised Parking

Sharpe Pritchard have been appointed to advise Worthing Borough Council on the implementation of an SPA and PPA in the Borough.

Sharpe Pritchard acts for Lincolnshire County Council in major planning appeal concerning gas storage facility.

This appeal was due to be heard over a five-week period in the early part of 2007.  On 18th October the appellants withdrew their appeal because of procedural issues raised by the Council.  Sharpe Pritchard worked closely with the Council in reaching this satisfactory outcome.

Strategic Partnering in Waste

In October the firm hosted a symposium exploring the potential for Strategic Partnering in waste management. The group was attended by 6 County Councils as well as representatives from DEFRA, 4Ps and PUK. The discussions was stimulated by a paper presented by Partners Roseanne Serrelli and Nicola Sumner setting out a strategic partnering model along the lines of NHS LIFT or BsF. The discussion explored ways in which this or a hybrid model could deliver waste projects more flexibly and expediently. Further papers will be written following the discussion

Construction Practice Thriving

The firm's public sector construction practice is thriving and has been appointed in respect of three major construction projects in November alone. Two are NEC framework agreements pursuant to which the Council will draw down significant works packages. The third is a Theatre construction project for a home county local authority, a two stage construction project.

Election Petitions

Ashley Badcock represented the Returning Officer for Tower Hamlets LBC in four election petitions relating to the council elections which took place in May last year. In interlocutory, service of the petitions on the successful candidates came under judicial scrutiny and some of the petitions were struck out because of failures to follow the strict procedural rules which govern election petitions. The consequence of the decision is that respondents to election petitions (who will usually be the successful candidates and the returning officer) must be served personally or on a solicitor authorised to accept service. If not served personally and posted to or left for a respondent it must be their, including the returning officer's, usual or last known residence and not, as one might suppose, the council offices. Further, the court confirmed that there is no power in the court to waive any irregularity in service. This means that in many cases where the strict time limits for service under the Election Petition Rules have expired before service can be properly effected, the petition cannot proceed and will be struck out.
For any further information about the effects of this decision please get in touch with Ashley Badcock at abadcock@sharpepritchard.co.uk

In the Courts

In the case of Mear and others v Cambridgeshire County Council (October 2006) Sharpe Pritchard obtained an interim injunction for the council, providing horseriders with access to a bridleway across a piece of land the highway status of which is denied by the landowners.

Sharpe Pritchard continues to act for a number of local planning authorities in High Court cases involving gypsies, travellers and showmen. Recent reported cases include Tewkesbury Borough Council v Brown and others (injunction under section 187B of the Town and Country Planning Act 1990) and Bath and North East Somerset Council v Connors and others (no realistic prospect of succeeding in a fresh appeal for temporary planning permission in an AONB, despite new circular imposing duties on the authority to assess accommodation needs and identify suitable land to cater for them).

Sharpe Pritchard also acted in the case of Chichester District Council v First Secretary of State and Simon Green, where the High Court, on an appeal under section 288 of the Planning Act upheld the Council's appeal against a planning inspector's decision to grant planning permission for the development of a building. The Court held that the inspector should have made an accompanied visit to the site, and that the inspector's decision was insufficiently reasoned.

In R (on the application of Lisa Smith) v North Norfolk District Council, the court upheld the decision of the council to refuse to grant any extra time for taking enforcement action in respect of an unlawful site. The court held that to do otherwise would bring the planning system into disrepute.

With rave culture seemingly making a comeback, activity has been rekindled in obtaining injunctions for local authorities. Sharpe Pritchard recently obtained a high court injunction at short notice on behalf of Sunderland City Council

Queen's Speech

This year’s Queen’s Speech contains a good deal of interest for local authorities. For Emyr Thomas’ summary of the main issues, please Read More >>

Street Trading and Pedlars

On 30th August, Alastair Lewis gave a presentation in Birmingham to a meeting of members of the National Association of British Market Authorities about recently enacted private Acts of Parliament, which he has promoted for local authorities. A number of local authorities are showing interest in promoting similar legislation to enhance their enforcement powers and deal with the issue of pedlars.

REPORT

The Model Planning Obligation Deed of Agreement

(John Harrison – planning partner, Sharpe Pritchard)
jharrison@sharpepritchard.co.uk

The Law Society’s Planning and Environmental Law Committee, in association with the DCLG, has produced a model Section 106 agreement that all local planning authorities are encouraged to use for drafting individual agreements. The model agreement has been issued alongside the DCLG publication “Planning Obligations: Practice Guide”. Practitioners will welcome the idea of a model agreement as a means of standardising documentation and speeding up the planning obligation process.
Drafting a model agreement is often an unenviable task as competing interests try to pull the text in various directions to suit them. Striking the right balance is never easy. Sharpe Pritchard has produced a report which examines a few of the model’s provisions and asks whether the model agreement gets it right from the local planning authority’s point of view.  It concludes that while the model agreement includes much that is useful, it also contains numerous flaws and pitfalls.  Any local planning authority would want to take a long, hard – indeed very hard – look at the document before adopting its provisions in the form in which they are presented.

Read More >>

See a review of John’s report in “Planning Matters” at the link below

http://planningmatter.blogspot.com/2006/09/dissent-on-section-106-model.html

ARTICLE

When Does a Tree Preservation Order Not Preserve?

(Colin Ricciardiello – litigation partner, Sharpe Pritchard, & James Findlay – barrister, 2-3 Gray’s Inn Chambers)
cricciardiello@sharpepritchard.co.uk

The preface to the DETR Guide to the Law and Good Practice 2000 underlines a Local Authority’s longstanding power to protect trees that are considered worthy of protection: “When the modern planning system was established under the Town and Country Planning Act 1947 local planning authorities retained their powers to protect trees and woodlands in the interests of amenity by making Tree Preservation Orders.  Over 50 years later Tree Preservation Orders remain an important part of the system”

Read More >>

QUESTION & ANSWER

How may an authority lawfully engage in dialogue with bidders within the constraints of the restricted procedure in the Public Contracts Regulations 2006 (the “Regulations”) to ensure it receives fully developed and clear bids that meet its requirements?

(Sheila Storey, Senior Solicitor, Projects, SP)
sstorey@sharpepritchard.co.uk

Under the restricted procedure, post-tender dialogue with bidders is restricted to “clarification” only but pre-tender dialogue is permitted and can be helpful as a consultation process when the authority is preparing contract documents and following the issuing of tender documents to clarify the authority’s requirements.

Recital 8 of the new public sector directive (Directive 2004/18/EC) states: “Before launching a procedure for the award of a contract, contracting authorities may, using a technical dialogue, seek or accept advice which may be used in the preparation of the specifications provided, however, that such advice does not have the effect of precluding competition”.

Recital 8 refers expressly to the possibility of consultation for the purpose of preparing the specifications “before launching a procedure”, which would seem to preclude consultation for the purpose of informing the specifications after that time, unless expressly provided for in the Directive (i.e. unless using the negotiated or competitive dialogue procedures). Although arguably in the restricted procedure the most appropriate strategy may be to enter into consultation with bidders who have been short-listed, we would advocate a restrictive interpretation of the Directive is taken and authorities should complete their consultations before the contract notice is published.

Pre-contract notice consultation
Consultation before publishing the contract notice allows the authority to:

• “Test” its requirements with the market and take into account the market’s views in preparing the specifications;

• Ensure clear instructions are given to bidders as to how best to deal with any concerns they may have about the authority’s requirements in their bid (e.g. by raising such concerns in their bids so that these can be properly evaluated (rather than raise them as new issues in post-tender discussions);

• Explore whether variant bids ought to be permitted and possibly identify certain “core requirements” as mandatory while certain “add-ons” may be best offered as alternatives.

Post-contract notice dialogue
Although the Directive implies that consultation with bidders to prepare the specifications can only take place before publication of the contract notice, this does not preclude dialogue with short-listed bidders before submission of their tenders to ensure they fully understand the authority’s requirements, although at that stage the emphasis of the dialogue would be on clarifying the authority’s requirements rather than consulting on the specifications to be developed. Such clarifications may result in the authority issuing amendments to the contract and tender documents or explanatory guidance where there is ambiguity or error.

Form and conduct of consultation/dialogue

Any dialogue with bidders must be conducted in accordance with the principles of equal treatment of bidders and transparency.

Consultations prior to publication of the contract notice to assist the Authority in preparing the specifications must not have the effect of “precluding competition”. Whilst it is not entirely clear what “precluding competition” entails, clearly consultation must not have the effect of excluding some bidders and/or favouring others. For example, if, as a result of the consultation, the authority set requirements in the specification higher than would otherwise have been the case with the effect that this excluded smaller providers or favoured a particular provider, that would probably be regarded as precluding competition. It would be permissible, however, if the Authority is interested in features that may be offered only by certain firms, to cater for them by allowing variant bids.

One question often raised is whether it is permitted to consult only a limited number of organisations, since arguably those organisations taking part in the consultation would benefit from better and earlier information and the specifications could favour them. The Directive does not give an exhaustive account of the type of conduct that would preclude competition but meetings held in open forum and that are widely advertised do not violate equal treatment and while it may be impractical to consult all interested parties, the authority will need to consider how best to advertise such meetings. There may be exceptions to that general rule where private consultations are justified to protect confidential commercial information but such meetings should be conducted with caution and minuted.

After publication of the contract notice and before bid submission, dialogue with bidders which is intended for clarification may take the form of meetings or written questions/responses. Again, meetings ought to be in open forum (and minuted), but may be in private if they are justified to protect commercial information. An equal number of meetings should be held with each bidder and care taken to ensure that information is not given to one bidder that is not (unless commercially sensitive) given to other bidders - practically this means that the same officers should attend each meeting and meetings should be minuted and questions/responses raised at the meetings circulated to other bidders.

Dialogue following submission of tenders

Following bid submission, dialogue with bidders should be restricted to clarification of their bids. Bidders may make presentations at this stage and site visits may be appropriate to see other projects that the bidder has been involved in. But care needs to be taken to ensure that the presentation/other project itself is not evaluated – it should serve merely to explain the bidder’s tender and see examples of their work.

Conclusion
Conducted properly, consultation and dialogue before a tender submission under the restricted procedure can help to ensure bids submitted are fully developed, clear and meet the authority’s requirements and obviate the need for unlawful post tender negotiations.
The principles set out here apply equally to the open procedure although dialogue after publication of the contract notice would be with all potential bidders, rather than a short-list.

Sharpe Pritchard Focus

We hope you have enjoyed this issue of SP focus.  To find out more about the services and publications on offer at Sharpe Pritchard, please visit our website www.sharpepritchard.co.uk, or alternatively call Kalai Raj on 020 7405 4600.

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