A HIGH Court challenge that could have forced Waverley to re-tender its £100 million scheme to regenerate East Street, was dismissed last week in a legal judgement that could have repercussions across the country.
Last Thursday, Judge Dove ruled that Farnham’s five claimants, who include two borough and town councillors, did not have the required legal standing to go forward to a judicial review to determine if changes made by Waverley to its contract with Crest Nicholson for the Brightwells site were lawful.
Waverley leader Farnham councillor Julia Potts hailed the verdict as “the right decision for the people of Farnham”. Town MP Jeremy Hunt described it as a “significant moment” and urged it was time to get on with the project “but at the same time working together to make sure it is properly implemented in a way that respects the genuine and longstanding concerns held by many.”
A Crest Nicholson spokesman said: “We are pleased with the decision of the High Court which concluded that the applicants did not have standing to bring the procurement challenge.
“This judgement paves the way for detailed design and procurement of this £100m town centre regeneration scheme to recommence with a view to starting enabling works in the summer.
“Once complete the Brightwells scheme will deliver 239 much-needed new homes, including 167 for private sale and 72 homes low-cost shared ownership homes. The scheme also includes 9,814sq.m of retail and leisure space, a shopper car park with space for 183 vehicles and public squares and cafes.
“Signed pre-lets include Marks & Spencer Simply Food, a 6 screen Reel cinema and restaurants including Carluccio’s, Ask and Byron Burger. Further lettings will be sought once development has commenced.”
The claimants submitted the changes to the contract gave Crest an unfair advantage over other bidders for the contract in 2002, and required Waverley to re-run an open competition for the Brightwells tender in accordance with EU procurement legislation.
They cited the case of Winchester City Council’s Silver Hill development, which was scrapped after a similar High Court challenge by a solitary councillor Kim Gottlieb in 2015.
But in this case, Mr Justice Dove took the view that the claimants did not have the required standing as they were not “economic operators”, the term used for potential alternative developers to Crest Nicholson.
The claimants are now concerned that the law in this area is so complex that two eminent High Court judges have come to diametrically opposed decisions on essentially the same issue. They are even more concerned that this decision prevents them from putting key issues before the courts at a judicial review.
In a joint statement issued this week, the claimants said: “The proposed development is self-evidently a high-risk project. It has taken around 15 years from the initial agreement to reach the stage of a supposedly viable scheme.
“In order to achieve this, Waverley has made major financial concessions to Crest Nicholson including accepting £3.19m for land previously stated as having a minimum value of £8.76m; paying £4m for land where no payment is to be recovered from Crest Nicholson; removing the Gostrey Centre from the development site to an edge of town location at the Memorial Hall; dropping social rented housing from the development and replacing it with shared ownership housing, providing a substantial financial benefit to Crest Nicholson; and allowing Crest Nicholson to build the commercial elements of the scheme, which were due to be put out to competitive tender under the original agreement.
“Crest Nicholson is clearly well aware of the risks inherent in this development, as they have spent many years seeking an investment partner to take on the funding and financial returns from the commercial part of the development. This having failed, Surrey County Council has stepped in with a possible investment of £30m, thus transferring the major element of risk in this project to the public sector.
“Claimants would have wished to bring all of these changes and risks before the court in a judicial review. All of the legal advice accessible to the claimants strongly indicates that they would have succeeded in their claim. Sadly this judgement indicates that members of the public, and councillors representing them, have no opportunity for redress where they believe that their council has acted unlawfully and spent, or planned to spend, public money unwisely.
“The five claimants are discussing with their legal team what further action they might be able to take. In the meantime they would like to express their immense gratitude to all those who have supported them so generously.”
Welcoming the decision, Miss Potts said: “I’m delighted the judge has made the right decision for the people of Farnham.
“His ruling has backed what we believed was the right scheme for Farnham all along.This regeneration scheme will bring about major community benefits to our residents, visitors and local businesses and give the council a much-needed income stream for many years to come.”
“I hope that we can now all unite, work together and put the interests of Farnham’s future first.”