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Development Agreements – when are they exempt?. Cyrus Mehta, Partner Nabarro LLP. 58151864. Land transactions. “Pure” land transactions (transfers, leases, licences) are not caught Public works contracts: for the carry out of works

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development agreements when are they exempt

Development Agreements – when are they exempt?

Cyrus Mehta, Partner

Nabarro LLP

58151864

land transactions
Land transactions
  • “Pure” land transactions (transfers, leases, licences) are not caught
  • Public works contracts:
    • for the carry out of works
    • contracting authority “engages a person” to carry out works
  • Regulation 6 (2)(e) – exemption for contracts for the acquisition of land and (existing) buildings
  • But state aid requirements: Commission’s Notice on sale of land and buildings
mixed contracts
“Mixed” contracts
  • Gestion Hotelera
    • “main object” test
    • “incidental” works
  • Article 1(2)(b) Directive: “Public contracts having as their

object …”

  • Quedlinburg
    • “main purpose” was not acquisition of land, but procurement of building
  • Example: leases with covenants to refurbish
  • “Severability” of works
contractual commitment to develop
Contractual commitment to develop
  • Contract:
    • for works
    • contracting authority engages a person …
    • “contract” has a Community law definition (see AG in City of Cologne)
  • Does an intention or expectation suffice?
  • Context of development
  • Flensburg case
    • sanctions for failure to develop
    • re-acquisition of property
    • but how specific can requirements be?
contractual commitment to develop cont
Contractual commitment to develop cont ..
  • ECJ reference in Mueller
  • “specified requirements”
    • how specific?
    • outline parameters do not suffice?
  • Development “opportunities” as works concessions?
    • But still need to show “works contract”
miscellaneous
Miscellaneous
  • Regulation 34 – subsidised works contracts
  • Use of public/private SPVs for development
    • unlikely to be “in-house” (Teckal etc.)
    • is there a “works” contract?
    • Commission’s IPPP notice
  • Planning obligations : quality standards, e.g. Code for Sustainable Homes
summary
Summary

Where EU procurement rules may not apply:

  • “pure” land transactions
  • contracts where “main object” is disposal of land
  • no contractual commitment to develop
  • contracts with outline specification
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