International Construction Law Review
TWO ROAD MAPS FOR EU-PROOF LAND DEALS
ARJAN BREGMAN*
Dutch Institute for Construction Law; Amsterdam School of Real Estate
ABSTRACT
The discretion of governments to enter into agreements with private developers about the financial aspects of land development is not unlimited. Since the impact of several decisions of the European Court of Justice on local practices was not always clear, questions arose about the scope of European public procurement rules. In order to provide guidance the UK and the Netherlands have drafted guidelines with the objective to facilitate local governments and private developers in reaching land deals that are “EU proof”.
There are similarities between the Dutch and the British Roadmap, but also differences. On the one hand, the British Roadmap can be interpreted as more restrictive, looking at the absence of the performance obligation as a distinct condition for the application of the EU public procurement regime, which is present in the Dutch Roadmap. On the other hand, the Dutch Roadmap is more restrictive in the light of the position of the developer who owns some or all of the land to be developed.
1. INTRODUCTION
Public and private developers are dependent on each other in land (or area) development processes1. They often make arrangements about land-use zoning; the design and use of land and property; and the distribution of tasks, revenues, costs and risks. Such arrangements precede formal re-zoning and development control procedures.
* Arjan Bregman is a senior staff member of the Dutch Institute for Construction Law and research fellow at the Amsterdam School of Real Estate.
1 In response to the question as to how area development is to be defined, De Reiswijzer Gebiedsontwikkeling 2011 (the Roadmap Area Development 2011) p 7, reads as follows: “Area development is the(re)development of an area by the designation of a variety of land uses, such as (over- and underground) infrastructure, housing, business and industrial premises, recreational features and community facilities, are realised in their common coherence”. Further down the same page, amongst others, the following remark has been added: “Area development is a joint development of elements with a strong public nature combined with private features for designation to eligible market participants”. The Roadmap Area Development 2011 with the subtitle “a practical route description for market parties and governments” is a joint publication by the Ministry of the Interior and Kingdom Relations, the Ministry of Infrastructure and the Environment, the Association of Netherlands Municipalities and the Association of the Provinces of the Netherlands (IPO) in cooperation with the Association of Dutch Property Developers (NEPROM).
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