Agreement further to Section 106 of the Town and Country Planning Act 1990 relating to development on land to the east of Kingston Bagpuize, Oxfordshire

CPV: Building construction work

Procedure method

Award procedure without prior publication of a call for competition

Legal basis

CELEX · 32014L0024 Public Contracts Regulations 2015 (Directive 2014/24/EU)

Procurement category

Works

Notice status

Awarded without competition

Procurement threshold

Unspecified in notice

Regulatory regime

Standard

Commercial structure

Stand-alone contract (no framework)

Competition type

Direct award (no call for competition)

GPA / WTO covered

Yes (GPA)

Recurring procurement

Unspecified in notice

First published

21 Mar 2024, 10:41 GMT

Last source update

21 Mar 2024, 10:41 GMT

Authority reference

DN716585

FTS notice number

2024/S 000-009146

Classification (CPV)

Building construction work

Delivery area

South East (UKJ14)

Official registry OCID

ocds-h6vhtk-044b1e Find a Tender

Why no open competition

The procurement falls outside the scope of application of the directive

Published justification

The proposed agreement (“the Section 106 Agreement”) will contain commitments by the ultimate developer (“the Developer”) to design and execute a series of improvements to existing highway infrastructure in the area to provide suitable safe and satisfactory access to the Development and to address the additional demands that will be placed upon the local highway network by the Development. It is considered that the Section 106 Agreement will not constitute a public works contract for the following reasons:

1. The Section 106 agreement is required to make the Development acceptable in planning terms, in accordance with Regulation 122 of the Community Infrastructure Levy Regulations 2010. The essential objective of the Section 106 Agreement is for a planning purpose in accordance with the statutory planning regime. It is to ensure the grant of a satisfactory permission to develop the Site rather than the realisation of any specific public works by the Developer on or near the Site. It was endorsed in Faraday Development Ltd v West Berkshire Council and St Modwen Developments Ltd (“the Faraday Case”) following the principle established in Helmut Muller GMbH v Bundesanstalt fur Immobilienaufgaben-Helmut Muller) that an agreement was not a public works contract where the contracting authority’s primary objective was of a planning nature under the statutory regime.
2. An essential ingredient of a public works contract is that it is for pecuniary interest – see Regulation 2 of the Public Contract Regulations 2015. The Advocate General’s opinion in European Commission v Kingdom of Spain seeks to provide a definitive statement of the meaning of “pecuniary interest” concluding that it implies that the contracting authority needs to use its own funds either directly or indirectly. No direct financing will be provided by the contracting authority in respect of the Section 106 agreement. Indirect financing occurs when the contracting authority suffers economic detriment as a result of the method of funding the works. No economic detriment will be sustained by the contracting authority in consequence of entering into the section 106 agreement. The highway works will be delivered in kind rather than through the provision of funding to the contracting authority.
3. It is a requirement of a public works contract that there must be a legally enforceable obligation to carry out works. Under the Section 106 Agreement there will be no obligation for the highway works to be delivered unless the Development is implemented and it is entirely at the discretion of the Developer as to whether the Development is implemented. Thus the Section 106 Agreement corresponds to the agreement considered in the case of R (Midlands Co-operative Society Ltd) v Birmingham City Council (1) Tesco Stores Ltd (2) (as subsequently approved in the Faraday Case) where the agreement contained no obligation contingent or otherwise for the carrying out of development and so was not a public works contract.

Notes:

a. The estimated aggregate value (including VAT) of the highway works further to the Section 106 Agreement which the Developer is to undertake is £14,902,703.

b. In the agreements under Section 278 of the Highways Act 1980 that will follow the Section 106 Agreement and the grant of planning permission for the Development, the Developer will undertake a transparent and impartial procurement process for the highway works.

c. The contract (Section 106 Agreement) has been awarded jointly to:

The President and Scholars of Saint John Baptist College in the University of Oxford (1) and Lioncourt Strategic Land Limited (2).

• Lioncourt Strategic Land LimitedAwarded supplier Apex Park, Wainwright Road, Worcester, South East, WR4 9FN
• The President and Scholars of Saint John Baptist College in the University of OxfordAwarded supplier St. Giles, Oxford, South East, OX1 3JP

No document links were published on the notice.