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For what it’s worth, this helped us understand:

https://www.11kbw.com/knowledge-events/case/faraday-development-ltd-v-west-berkshire-council-court-of-appeal-gives-important-guidance-on-development-agreements-and-options-and-declares-contract-ineffective/

Faraday Development Ltd v West Berkshire Council: Court of Appeal gives important guidance on development agreements and options, and declares contract ineffective

The Court of Appeal decided that… (see item 4)

However, entry into the development agreement was still unlawful, because looking at the substance of the arrangements taken as a whole, they involved the Council in committing itself to the procurement of works from the developer – if the developer did draw down the land, a public works contract would come into being, and it would then be too late to carry out the required procurement. This was both a breach of the Public Contracts Regulations (actual or anticipatory), and a breach of public law (because it involved the Council in effect agreeing to act unlawfully in the future).

And what is UNLAWFUL?

https://thelawdictionary.org/unlawful/

That which is contrary to law. “Unlawful” and “illegal” are frequently used as synonymous terms, but, in the proper sense of the word, “unlawful,” as applied to promises, agreements, considerations, and the like, denotes that they are ineffectual in law because they involve acts which, although not illegal, i.e. positively forbidden, are disapproved of by the law, and are therefore not recognized as the ground of legal rights, either because they are immoral or because they are against public policy.

From Newbury Today

“We’ve acted responsibly throughout over LRIE”

Council’s deputy leader defiant over industrial estate redevelopment saga

See here

From: Mike Johnston <Mike.Johnston@westberks.gov.uk>

To: Anthony Pick <Anthony.Pick@westberks.gov.uk>; Jason Braidwood

Sent: Thursday, 31 January 2019, 22:15:39 GMT

Subject: RE: LRIE

Dear Jason,

Antony has given you the facts of the case, but obviously the other angle is political and whether delaying the Overview and Scrutiny Commission meeting until after May was appropriate.

In my opinion, the political damage has been done through the judgement despite the fact that the damages awarded was only £1. Scrutiny and further analysis is unlikely to make much more negative impact politically. We are therefore not trying to hide from scrutiny before elections.

What we do hope is that lessons can be learnt from the scrutiny investigation, which is more likely to be achieved post-election, with less pressure on time and political desire to make points to attack or defend the reputation of the Conservative administration.

Regarding, this year’s elections. I won’t be standing as I moved into Vale of White Horse district just over a year ago as it worked better for my son’s school and commuting. I will however be standing for the Vale of White Horse and campaigning to retain a Conservative administration.

I totally appreciate that at this time, national politics are complex and it would seem our parliamentary colleagues are unable to agree the way forward on Brexit. Brexit is something that crosses party lines and I believe that most politicians are trying to do what they think is best for the country and in line with what the country voted for, although some I fear are doing everything they can to get a Communist installed in No 10, irrespective of what is best for the country. I hope that the EU can accept that the Withdrawal Agreement is not acceptable to our politicians and that they must give ground to get the best for both EU and British citizens. However, I fear that their current stance seems not to recognise the democratic expression of British people and parliament, which reinforces why many voted to leave. Regardless of the national politics and your views on Brexit, local Governance goes on delivering services for the community.

The Conservative administration has managed to maintain good quality services with an ever decreasing budget from central government, while keeping council tax low. We took the decision to reduce the number of Councillors from 52 to 43 to bring us into line with similar councils, this enabled us to cut costs and not services. The record shows that the conservative administration has been more efficient in managing services and finances than the previous Lib Dem administrations and I hope you will reflect on the balance of the issues in West Berkshire while making your decision this year.

I am confident that a Conservative Administration is best for West Berkshire (and Vale of White Horse) and I hope that you will support the Conservative Councillors in the new ward. Thank you for all of your help over my time as a St Johns Councillor.

Kind regards,

Mike Johnston

Councillor, St John’s Ward

West Berkshire Council

From: Anthony Pick

Sent: 28 January 2019 09:06

To: Jason Braidwood

Cc: Mike Johnston <Mike.Johnston@westberks.gov.uk>

Subject: LRIE

Dear Jason.

Thank you for your email, which I will respond to by briefly laying out the facts of the case.

The redevelopment of the London Road Industrial Estate (LRIE) is one of the strategic objectives of West Berkshire Council’s Newbury Vision 2026 document http://info.westberks.gov.uk/CHttpHandler.ashx?id=38360 , originally prepared in 2003 and subsequently updated. Its purpose is to rejuvenate the LRIE with a comprehensive plan for new commercial premises and residential developments. It will add to the area’s commercial value by many tens of millions of pounds and will provide an attractive new gateway to Newbury. The Newbury Vision 2026 has been the framework document for other major developments, such as Park Way, the Vue Cinema, the Museum refurbishment, and the Market Street development. The Council owns most of the freehold of the LRIE estate.

For such an ambitious objective, West Berkshire Council needs a development partner, and in 2015 selected St Modwen. The tendering process under which it did so was one which the Council’s legal officers believed at the time to be legally correct. The recommendation in favour of the deal with St Modwen was made by a cross-party group and had the support of the Council’s Liberal Democrat Group.

This development agreement was, however, challenged legally by one of the leaseholders of the LRIE, Faraday Developments Ltd (FDL). The High Court found for the Council, but on appeal the Appeal Court ruled in favour of FDL. The reason for the judgement was a new principle of tendering law which was not apparent until the Appeal Court ruling was given, and which changes the procurement rules for all Councils. The Appeal Court confirmed that the Council had not been at fault and had acted in good faith. However, the contract with St Modwen was declared void and the Council was instructed to re-tender for the partnership agreement. FDL claimed damages and was awarded £1. The full legal decision can be found at http://www.bailii.org/ew/cases/EWCA/Civ/2018/2532.html and a legal analysis by a Trowers and Hamlins partner can be found at http://www.room151.co.uk/blogs/west-berkshire-ruling-complicates-development-schemes/

The Council saw no advantage in appealing further to the Supreme Court, as that might have incurred substantial additional costs and delayed the LRIE project by at least a further 18 months. However, given the importance and value of the LRIE development, the Council had been absolutely correct in defending its position, which it had thought was lawful, until a legal decision had been taken.

The Council has competent legal officers who are studying the Appeal Court decision carefully. Future tenders for the development partnership for the LRIE will be invited in accordance with that decision. Given the fullness of the ruling by the Appeal Court, and its exoneration of the Council of any wrongdoing, the demand for an independent review of the St Modwen agreement would serve no useful purpose. It would cost further sums of public money without adding any additional information, and delay the LRIE redevelopment still further.

I hope that this summary addresses your concerns.

Yours sincerely,

Cllr Anthony Pick

Ward Councillor, St John’s

From Newbury Today

‘Politically sensitive’ inquiry may not be held until after elections

Councillor says it could be advantageous to hold review into unlawful development agreement after May

See here