The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
A recent case throws light on the scope of the exemption for “land transactions” from the need for an OJEU tender process.
The case considered whether a lease of an advertising hoarding was a service concession contract. The Court of Appeal decided that, even if the lease for the hoarding had been a service concession, it would have fallen within the “land transaction exemption”.
Between the 2006 and 2015 Regulations, the wording of this exemption had changed:
- The 2006 Regulations exempted, “contracts for the acquisition of land, including existing buildings and other structures…”;
- The 2015 Regulations exempt “public service contracts for the acquisition or rental by whatever financial means, of land, existing buildings or other immovable property…”
We had wondered what the significance was of this change of wording and particularly the reference to “service contracts”. The answer is “none”. The court said that, although the wording of the different versions of the Regulations differed slightly, there was no change of substance.
The test as to whether a transaction falls within the “land acquisition” exemption, therefore, remains the same. It is whether the substance of the transaction is the transfer of land or whether it is something else, such as the construction of buildings on land or, as was alleged in the case, the provision of advertising services.
In the case, the substance of the transaction was the rental of land and not the provisions of “advertising services”. The payment was of rent and not a payment for a “right to exploit a service” that the lessee was required to provide.
 Ocean Outdoor UK Ltd v Hammersmith and Fulham LBC  EWCA Civ 1642
 Public Contracts Regulations 2006 Regulation 6(2)(e)
 Public Contracts Regulations 2015 Regulation10(1)(a)
For more information
If you need advice on land transactions and procurement, please contact Andrew Millross.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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