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High Court rules Winchester acted unlawfully over Allies and Morrison scheme

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Campaigners battling Allies and Morrison’s controversial proposals for Silver Hill in Winchester have won a High Court victory, potentially derailing the massive city centre scheme

A judge today found that Winchester City Council had acted unlawfully by not following procurement rules on the £165 million retail-led project and recommended the authority now look at launching an ‘open competition [to] introduce new bidders with fresh ideas’ for the site (see attached document). 

The judicial review proceedings were brought by councillor Kim Gottlieb, the head of the Winchester Deserves Better campaign, who claims the ‘dreary’ scheme would ‘cause irreversible damage to the historic character of the whole city’.

Gottlieb argued the council had broken protocol by allowing developer TIAA Henderson Real Estate to ‘radically’ change the terms of its development agreement - and the scheme - without carrying out a new, competitive tender process.

In June last year TIAA Henderson Real Estate approached the council asking for the original, already consented proposals to be modified, demanding that plans for a new bus station were scrapped, the number of homes reduced from 287 to 177, and all the on-site affordable housing removed.

These amendments were later accepted by the local authority and re-worked designs by Allies and Morrison approved in December (AJ 12.12.14).

In her judgement the Hon Mrs Justice Lang said: ‘[The] council has committed a serious breach of the procurement regime, which is both substantive and procedural in nature. It would be an exceptional course to allow its unlawful decision to stand.’

She added: ‘The radical change to the plans for the city’s central bus terminus and the proposed loss of 35 per cent affordable housing are major changes, which merit a genuine re-consideration of the original scheme, with the benefit of an open competition introducing new bidders with fresh ideas. 

‘While delay is always regrettable, there is no pressingly urgent need to develop this site.  The council does have time to consider the various options available to it.’ 

Following the judgement, Gottlieb said: ‘[This decision] should pave the way for regeneration proposals for this major city-centre site to be overhauled and revitalised, and for the city to benefit from fresh ideas as a result of an open market tender.’

‘[The judgement] is welcomed by the thousands of residents who have been wonderful supporters of our campaign. They have been concerned not just by the damaging effects of a misconceived development, but also by the processes undertaken by the council in order to progress this proposal.’

Responding to the decision, a spokesman for TIAA Henderson Real Estate said: ‘We are surprised and disappointed. However we still have a fully consented scheme that is free from procurement challenge [approved February 2009]. We will now carefully consider the judgement that has been made before we determine our next steps.’

Allies and Morrison partner Paul Appleton added: ‘Whatever judgement has been reached today, it is one about process and not principles. I have rarely worked with a client or a council who have held so dear the cultural value of their site or their city. 

‘It is right and proper that every proposal is examined and held to account; this one has been supported by planners, English Heritage, CABE, the Winchester City Trust, the local business community and thousands of unnamed local residents through well over a decade of careful work and collaboration.  

Challenged but not beaten

‘I’ve an optimistic belief that, if the intellectual, cultural and architectural value of a proposal is well demonstrated, then the processes, correctly set up to examine and challenge it, will ultimately not be found wanting. 

‘That optimism may be challenged at moments like this, when all the care that one can invest in historical research, in design, in judgement, in detail seems less powerful than a single judgement which considers none of that. Challenged, yes, and that is quite right, but not beaten.’

Leader of Winchester City Council, Robert Humby

‘The council has today been advised that the judge in the recent Judicial Review of procurement in respect of the Silver Hill scheme has found in favour of the challenger. This is clearly disappointing, and runs against the external legal advice the Council had received on this matter, and indeed the initial legal judgement which rejected a Judicial Review.

‘The case for the regeneration of the Silver Hill area has always been strong, and has cross-council support. With that in mind, I think the council was quite right to proceed with the project, a decision which was backed up by clear legal advice. However, it is never easy to predict the outcome of a Judicial Review, and we must acknowledge the judge’s ruling.

‘Officers are considering with legal advisors next steps, including the possibility of an appeal. Meanwhile, it is important to note the court has not overturned the decision of the planning committee last December, so there is still a viable scheme which has democratic support and could be developed. Nor have they contradicted Deloitte’s conclusion that the approved scheme offered the council ‘best consideration’. What is now at question is our ability to work with Henderson within the framework of the development agreement.

‘The court decided that the council was wrong to proceed with the variations to the scheme now approved without first testing the market. I have therefore asked officers to advise on whether it is possible to rectify that omission to allow us to comply with the court’s decision.

Should we abandon the existing approved scheme?

‘I have also asked officers to advise on other options open to us, including whether we should abandon the existing approved scheme and begin again. To start again will require public consultation on options, approval of a masterplan for a preferred option, procurement of development partners and, quite possibly, a further Compulsory Purchase Order being sought.

‘Whatever option is chosen it will have financial consequences. When we consider the cabinet’s budget proposals (11 February) a revised budget will be tabled to reflect our initial assessment of the immediate consequences. More detailed financial advice will need to accompany an assessment of our options.

‘This is not a matter which can be rushed. However, the fact remains that this part of the City needs improvement if Winchester is to continue as a successful centre for business and visitors. I am sure all Councillors will agree that we need to think carefully about how best we can move matters forward and assess all options. I propose to ask Council to endorse Cabinet’s preferred option.

‘Some will question how these circumstances arose. I propose to set in motion an independent review of decision-making on this matter. I intend to invite the chair of the Overview & Scrutiny Committee and the chair of Audit Committee to work with me on this, with a report to be brought to both their committees.’



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